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Thread: Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical Prese

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    Default Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical Prese

    I had not heard of this previously. Very interesting.

    A federal appeals court upheld November 16, 2016 the decision of the National Labor Relations Board (NLRB) that an employer violated Section 8(a)(1) of the National Labor Relations Act by denying an employee the right to the physical presence of a union representative before consenting to take a drug test, and by discharging him for refusing to take the test without a union representative present. Manhattan Beer Distributors LLC v. National Labor Relations Board, Nos. 15-2845, 15-3099 (2d Cir. Nov. 16, 2016).
    We previously blogged about the facts of this case here. In short, the employer wanted to send its employee for “reasonable suspicion” drug testing because he “reeked of the smell of marijuana.” The employee requested the presence of his union steward, but it was the union steward’s day off. The employee spoke with the union steward on the telephone and then stated that he would not consent to the drug test without union representation. The employer discharged him for refusing to take the drug test. In Ralph’s Grocery Co., 361 NLRB No. 9 (2014), discussed here, the NLRB held that “an employee has the right to the assistance of an authorized union representative even if that might cause some delay in the administration of the drug or alcohol test.” The NLRB, and the Second Circuit, followed that precedent here.
    Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical Presence of Union Representative Before Consenting To Drug Test | The National Law Review
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    Default Re: Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical P

    I hate to admit it but I'm on the company's side with this one. It has a responsibility to keep impaired employees out of the workplace. Does this ruling mean that if a line haul driver has an accident 200 miles from his terminal he can refuse the drug test until his steward is present?

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    Default Re: Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical P

    Quote Originally Posted by 2631 View Post
    I hate to admit it but I'm on the company's side with this one. It has a responsibility to keep impaired employees out of the workplace. Does this ruling mean that if a line haul driver has an accident 200 miles from his terminal he can refuse the drug test until his steward is present?
    I agree. Seems there could be some very iffy situations with this.

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    Default Re: Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical P

    I agree. Seems we may not be getting the whole story here. After all, any contract employee could have been present, and served as that "physical presence" to protect the employees rights.
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    Default Re: Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical P

    Quote Originally Posted by 2631 View Post
    I hate to admit it but I'm on the company's side with this one. It has a responsibility to keep impaired employees out of the workplace. Does this ruling mean that if a line haul driver has an accident 200 miles from his terminal he can refuse the drug test until his steward is present?
    I agree, but it's a 50/50
    the company could have just sent him home until they find a rep, if suspicious of drug.
    I know that it's says they smell marijuana here, but sometimes there's is certain tobaccos that sometimes smells like marijuana and another point here is, is the manager a certified medical technician to determine this?
    So really the best situation for this was to send him home, it still will prevent an accident ahead, I know it sounds wrong.
    Here's another point, if a manager spotted an employee with a lot frustration and anger, should he allow that driver to go ahead and drive out ?
    No he shouldn't, because anger sometimes causes a blackout or a stroke and possibly a heart attack.

    I remember this in college, the labor center where the NRLB arbitrator explained this scenario
    Last edited by fedexnuno; 11-20-2016 at 12:36 PM.
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    Default Re: Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical P

    Unless the company was doing the actual testing then I can't see where a union rep's presence could affect the results. Drug testing rules may have changed since I worked under the NMFA. I was never tested for cause and I can't ever recall having anyone present during random drug testing. I was under the impression that it was the company's right to test an employee if they suspect impairment. I can't see why the company would needlessly waste time and money harassing an employ with a drug test. Over the years I've worked for pricks who would go out of their way to harass me but never at the company's expense.

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    Default Re: Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical P

    I agree, but it's a 50/50
    the company could have just sent him home until they find a rep, if suspicious of drug
    If the company did send him home and he had an accident couldn't it be held liable for allowing him to drive?

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    Default Re: Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical P

    Quote Originally Posted by 2631 View Post
    If the company did send him home and he had an accident couldn't it be held liable for allowing him to drive?
    IMO, no.
    Unless he was "on the clock", the company has no obligation to stop him from driving. That's a police issue.

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    Default Re: Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical P

    Quote Originally Posted by 2631 View Post
    If the company did send him home and he had an accident couldn't it be held liable for allowing him to drive?
    Yes, company has to have someone drive you home or get you a cab

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    Default Re: Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical P

    Quote Originally Posted by 2631 View Post
    Unless the company was doing the actual testing then I can't see where a union rep's presence could affect the results. Drug testing rules may have changed since I worked under the NMFA. I was never tested for cause and I can't ever recall having anyone present during random drug testing. I was under the impression that it was the company's right to test an employee if they suspect impairment. I can't see why the company would needlessly waste time and money harassing an employ with a drug test. Over the years I've worked for pricks who would go out of their way to harass me but never at the company's expense.
    Our previous management (bye bye King Ken, can you feel me now?) used the "random" drug screening as a harassment tool. I was given 3 drug screens in a 7 week period. This was not isolated to just myself. Many of my co workers suffered the same.

    A fellow Steward and myself were discussing a discipline situation with the city manager and the TOM. One of the managers had been suffering a great deal of pain and was taking some pretty serious (narcotics) medication for it. It was near the Thanksgiving break and I jokingly asked him to "share the wealth" for the holiday. We all laughed and left the room. I told my Steward buddy I was laying heavy odds that I would be called in the following day after our holiday for a drug test. Yup, you guessed it. They hauled me in and sent me for another "random" drug test. "Random my ass," is all I can say after that!

    We had another guy that forgot to adjust his clock for the daylight savings time. He showed up a couple hours early for his shift. Rather than drive back home, he decided to just hang around until the shift start. The SOM claimed he had observed "unusual behavior" from this employee. Unusual in the sense that he sat at the break room table drinking coffee with his back to the door? The company wrongly accused him of being impaired and shipped him off for a drug screening with little fight from him. He could have made the company's life miserable for the way he was treated but let it go. Having a Steward with balls on site does help matters greatly and can reduce the company's risk of violating labor law.
    Last edited by 222lifer; 11-20-2016 at 02:09 PM.
    2631, ABFwife and fedexnuno like this.

 

 

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