In May 2011, Ralphs Grocery Company suspended and terminated Vittorio Razi, a longtime bargaining-unit employee at its Irvine, California store, after he refused to take a drug test without first consulting with his UFCW Local 324 representative when he invoked his Weingarten Rights. Razi immediately filed a grievance over the matter with the Union, which notified the Company the same day that it was contesting Razi’s suspension and termination under the provisions of the parties’ collective-bargaining agreement.
Under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), a case decided by the Supreme Court of the United States, employees in unionized workplaces have the right under the National Labor Relations Act to the presence of a union steward during any management inquiry that the employee reasonably believes may result in discipline
Worth noting, this matter was originally submitted to arbitration, where the company prevailed. The arbitrator determined that Razi’s Weingarten rights did not apply in the case of a “for cause” drug and alcohol testing directive as it was not determined to be an “investigatory interview.” The original decision to send Razi for a drug and alcohol test was based solely on store management’s observations of Razi in the workplace.
However, both the Board and Administrative Law Judge disagreed with the arbitrator’s findings; both found that the drug and alcohol test actually triggered Razi’s Weingarten rights.
Findings of Fact:
Razi had worked for the Company for about 24 years, since 1987, and had been the produce manager at the Irvine store since 2003.9 He also did woodworking (building or refurbishing produce tables and racks) for the Company out of his garage. He was considered an excellent employee, with outstanding customer service skills, and had no history of disciplinary actions related to substance abuse or insubordination.
On May 15, 2011, Razi worked a 12-hour shift, including time he spent bringing woodworking to the store. He also worked a long, 14-hour shift, counting breaks, on May 16. The following day, May 17, he was not scheduled to work, but went to the store to take a measurement for a woodworking project that a district produce supervisor had requested. He worked on the project later that evening beginning around 9:30 or 10 p.m., and continuing into the next morning, May 18, until about 2 or 2:30 a.m. Nevertheless, despite having had very little sleep, Razi reported for his next work shift at the store a few hours later, shortly after 5 a.m.
Assistant Store Director Edward Maier arrived about an hour later, around 6 a.m., and encountered Razi in the store’s com-puter room. Razi appeared agitated, anxious, and nervous, his speech was slurred, and he was unable to sign onto the computer or print new signs showing produce prices. Maier subsequently reported his observations to Store Director Julie Henselman when she arrived around 7 a.m., and advised her to “go check out” Razi.10
Henselman found Razi stocking produce. However, he was doing so in a manner that was too fast and risked bruising. Further, when she spoke to him, he was anxious and fidgety, would not look her in the eyes, spoke rapidly and in an animated fashion, and had trouble focusing on one topic at a time. In addition, when he knelt down at one point to tie his shoes, it took him several attempts to accomplish it.
After Henselman finished speaking to Razi, the frozen food manager approached her and also reported that Razi had been acting strangely that morning. Henselman then spoke to a number of other employees as well, several of whom reported similar observations.
Henselman concluded that Razi was under the influence of some type of substance, and called Senior Labor Relations Representative William Edwards to discuss the situation. Ed-wards advised Henselman that, based on the circumstances she described, she had the right to compel Razi to take a drug and alcohol test, and suggested that she send him to take such a test.11
It was now about 9:15 a.m. Henselman called Maier to the office and asked him to drive Razi to the testing site. She also called Razi to the office and told him that he was going to be sent for a drug test based on the behavior he had exhibited. Razi responded that he did not do drugs, was insulted by the accusation, and would not take such a test. Henselman told Razi that his refusal to take the test would be grounds for immediate suspension and termination because it would constitute both insubordination and an automatic positive test result.
Razi at that point said he wanted to contact a union representative. Henselman responded that Razi did not have the right to have a union representative present, but permitted him to try and contact one. Razi then went downstairs and attempted to call his union representative, Linda Martinez. However, he was unable to reach her.
After about 10 or 15 minutes had passed, Henselman asked Maria Rodriguez, the front- end manager, to find Razi and bring him back to the office. Rodriguez found Razi outside the store and told him Henselman wanted him to return. Razi replied that he had to clock out first for lunch because it was his fifth hour on the job. (Employees are required to clock out after their fifth hour so that the Company does not incur a meal penalty.) Rodriguez told Razi not to punch out because he was needed in the office, but Razi went ahead and did so. He and Rodriguez then walked back up to the office. When they arrived, Rodriguez informed Henselman that Razi had clocked out, and Henselman clocked Razi back in.
Henselman then again told Razi that he needed to submit to a drug and alcohol test, and that a refusal to do so could be grounds for immediate termination. However, Razi continued to refuse, stating that he had not been able to get in touch with anyone, and that he was going on his lunch break. Henselman replied that he could not take a break in the middle of the meeting, and repeated that he needed to submit to a drug and alcohol test. She told Razi that he had 1 minute to meet Maier at his car, or he would be immediately suspended. Razi replied that he would go with Maier, but would not take the test once they arrived at the testing site.
Henselman at that point again called Edwards and explained the situation to him; that Razi could not get in touch with his union representative, so he would not take the test. Edwards advised Henselman to suspend Razi pending further investigation. Henselman thereupon did so, advising Razi not to return to the store until he was called. Maier then escorted Razi out of the store.
The Company called Razi back in and terminated him the following day. The termination report, which Henselman drafted, stated that Razi: “was terminated for insubordination and refusal to take a drug test. He was told not to clock out by Maria Rodriguez, and he did anyway, which is insubordination. He also refused to take a drug test, which is also insubordination, and an automatic ‘positive’ test result”
The Union also filed a charge, approximately 6 weeks later, with the NLRB Regional Office, alleging that the Company’s actions violated the National Labor Relations Act. Specifically, the charge alleged that Razi had a Weingarten right to confer with a union representative, and that the Company unlawfully refused to permit him to do so and terminated him for asserting this right.
The Company argues that Razi’s refusal to take the drug and alcohol test was grounds for discipline because it constituted both insubordination and an automatic positive test result, as reflected in his termination notice. Furthermore, the store argued it did not have to postpone its investigation indefinitely simply because Razi could not contact his union representative.
The Outcome:
The Board states that the drug and alcohol test, ordered as part of the Respondent’s investigation into Razi’s conduct, triggered Razi’s right to a Weingarten representative. Safeway Stores System 99, 289 NLRB 723 (1988). As Razi’s refusal to submit to the test without the benefit of representation was an exercise of that right, his refusal could not lawfully be used against him. By relying on Razi’s refusal to take the test as a basis for discipline, the Respondent penalized Razi for refusing to waive his right to representation, irrespective of whether it considered his refusal to be insubordination or an automatic positive test result. In these circumstances, it is clear that Razi’s suspension and discharge were a direct result of his invocation of his Weingarten rights and, therefore, reinstatement and backpay are warranted. Safeway Stores, above.
The Board agrees that all employers have a legitimate interest in promptly addressing situations where employees may be working under the influence of drugs or alcohol. That interest, however, does not privilege employers to take action against employees based on their invocation of their Section 7 rights.
Employer Takeaway:
The real takeaway for all employers is that many employers currently have drug testing policies in place. Many of these policies stipulate that an employee’s refusal to submit to a drug test constitutes a positive test result. It is a standard clause in every policy that I have written and or implemented. Employers should always consider the implications of dismissing and or ignoring an employees’ attempt to exercise their Weingarten rights. While in many cases, “Just Cause” testing is often triggered through casual observation by management, supervisors and or coworkers, any additional documentation or recordings of the stated behavior could only serve to further reinforce an employer’s claims should an incident be grieved.
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