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Wednesday, September 9, 2015

Marijuana: A Special Kind of Stupid


By: Thomas Eden
Joe Garcia Diaz was a Manhattan Beer Distributors beer truck route driver when he was injured and filed an incident report. The next day, he reported to work and discovered that he was not scheduled to work on any routes, but instead was listed on the schedule with the notation “Workers’ Compensation.” Diaz opened the sliding window on the front wall of the delivery office to speak to the delivery manager about the schedule, asking why he did not have an assignment. At that time, the delivery manager noticed that Diaz “reeked of the smell of marijuana” and that his eyes were glassy and bloodshot. The facility manager, who was standing nearby, asked Diaz to come inside the office and asked Diaz how he was feeling. He then commented that Diaz smelled “funny” and asked if he “was doing anything stupid.” The manager subsequently informed Diaz that he had a route for him, but that Diaz would have to take a drug test first.

Diaz told the manager that he did not have a problem taking a drug test, but that he wanted his union shop steward present. Diaz then left the office area and called the assistant shop steward, but he could not reach him. Diaz then called his shop steward who told Diaz that it was his day off and that he could not accompany him to the drug test. While Diaz was on the phone, the manager drove up and without regard to Diaz’s requests for a union representative, instructed him to get into the car to take him for his drug test. Diaz replied that he would not take the test without a shop steward. The manager advised him that his failure to do so would be treated the same as a positive result, potentially resulting in his termination. Diaz told both managers that although he had no problem taking the test, he felt his rights were being violated because his shop steward was not there, observing that “[s]ince he’s not able to be present, I’m not taking the test.”

Manhattan Beer Distributors later discharged Diaz and then sent an email to certain union officials stating that Diaz was discharged for “his refusal to submit to sub- stance abuse testing based on reasonable suspicion.” The union subsequently filed a Section 8(a)(1) charge under the National Labor Relations Act claiming that denying Joe Garcia Diaz his right to union representation at an investigatory interview that he reasonably believed would result in discipline was unlawful.

An administrative law judge agreed and the case subsequently ended up before the National Labor Relations Board (NLRB). The Board majority held that the two managers determination that Diaz was under the influence of marijuana was based entirely on their sensory perceptions of Diaz’s appearance and odor, and at the very least, the physical presence of a union representative was necessary in order to permit the representative to independently observe the condition and potentially contest the grounds for their suspicions. There was a sharp division among members of the NLRB and the democratic majority held that Manhattan Beer Distributors discharged Diaz for refusing to take the test without a union representative present and ordered Diaz’s reinstatement and back pay.

Common Sense Counsel: it is extremely difficult to find any common sense in this NLRB decision. Diaz drove a DOT regulated vehicle and therefore falls under the mandated drug testing provisions of those regulations and must immediately report for a reasonable suspicion drug test when ordered to do so by a trained supervisor. Make sure that all of your supervisors are trained in reasonable suspicion drug testing.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com and follow on twitter tommyeden3