Manhattan Beer Distributors LLC

National Labor Relations Board - Board Decisions

Aug 27, 2015

362 NLRB No. 192 (N.L.R.B. 2015)

362 NLRB No. 192
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Manhattan Beer Distributors, LLC and Joe Garcia
Diaz. Case 29–CA–115694
August 27, 2015
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON,
AND MCFERRAN
On May 15, 2014, Administrative Law Judge Steven
Davis issued the attached decision. The General Counsel
filed exceptions and a supporting brief; the Respondent
filed an answering brief; and the General Counsel filed a
reply brief. The Respondent filed cross-exceptions and a
supporting brief; the General Counsel filed an answering
brief; and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Order
and to adopt the recommended Order as modified and set
forth in full below.2
We agree with the judge, for the reasons he stated and
for the additional reasons set forth below, that the Re-
spondent violated Section 8(a)(1) of the Act by denying
Joe Garcia Diaz his right to union representation at an
investigatory interview that he reasonably believed
would result in discipline by directing him to immediate-
ly submit to a drug test, notwithstanding his request to
have a union representative present. We reverse, howev-
er, the judge’s dismissal of the allegation that the Re-
spondent violated the Act by discharging Diaz for refus-
ing to take the drug test in the absence of a union repre-
sentative.

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The Respondent and the General Counsel make various cross-
arguments asserting that each other’s exceptions or brief do not comply
with the Board’s Rules and Regulations. We find no merit to these
claims. We have reviewed the General Counsel’s exceptions and the
Respondent’s answering brief, and we find that they substantially com-
ply with the Board’s Rules and Regulations.
2 We shall amend the judge’s conclusions of law and remedy and
substitute a new Order and notice to conform to our findings, and to the
Board’s decisions in J. Picini Flooring, 356 NLRB No. 9 (2010).
I. RELEVANT FACTS
While working on June 7, 2013,3 Diaz 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 deliv-
ery office to speak to Delivery Manager Roy Small about
the schedule, asking Small why he did not have an as-
signment. At that time, Small noticed that Diaz “reeked
of the smell of marijuana” and that his eyes were glassy
and bloodshot. Facility Manager Tony Wetherell, who
was standing nearby, asked Diaz to come inside the of-
fice. Wetherell asked Diaz how he was feeling. He then
commented that Diaz smelled “funny” and asked if he
“was doing anything stupid.” Small subsequently in-
formed Diaz that he had a route for him, but that Diaz
would have to take a drug test first.
Diaz told Small that he did not have a problem taking a
drug test, but that he wanted his shop steward present.
Diaz then left the office area and called assistant shop
steward Joe Henry, but he could not reach him. Diaz
then called his shop steward, Joseph Gonzalez, who told
Diaz that it was his day off and that he could not accom-
pany him to the drug test. While Diaz was on the phone
with Gonzalez, Wetherell drove up and, without regard
to Diaz’ requests for a union representative, instructed
him to get into the car so that Wetherell could take him
for his drug test. Diaz replied that he would not take the
test without a shop steward. Wetherell advised him that
he could drive himself to the test and that they would
finish talking there, but Diaz refused, saying “not without
a shop steward.” When Diaz returned to Small’s office,
Small again asked Diaz to take a drug test, reminding
him that his failure to do so would be treated the same as
a positive result, potentially resulting in his termination.
Diaz told Small and Wetherell that, although he had no
problem taking the test, he felt his rights were being vio-
lated because his shop steward was not there, observing
that “[s]ince he’s not able to be present, I’m not taking
the test.”
Later on June 8, the Respondent discharged Diaz. On
June 12, the Respondent’s Director of Operations, Ron
Reif, 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.”4

3 All dates are in 2013, unless otherwise noted.
4 The Respondent prepared a series of disciplinary documents in
connection with Diaz’ discharge. One of the disciplinary documents,
titled “Progressive Disciplinary Report,” states that Diaz was dis-
charged because he “refused to go for a drug screening under the rea-
sonable suspicion of substance abuse.” In addition, a memo titled
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
II. DIAZ’ RIGHT TO UNION REPRESENTATION
Where an employer insists that an employee submit to
a drug and/or alcohol test as part of an investigation into
an employee’s alleged misconduct, the employee has a
right to union representation before consenting to take
the test. Safeway Stores, 303 NLRB 989 (1991); System
99, 289 NLRB 723, 727 (1988). The Board recently
reaffirmed this right. See Ralphs Grocery Co., 361
NLRB No. 9 (2014) (employer violated Section 8(a)(1)
by requiring an employee to submit to a drug and alcohol
test, notwithstanding the employee’s request for
Weingarten5 representation). Furthermore, the Board’s
decision in Ralphs Grocery, which issued after the judge
issued his decision in this case, and earlier precedent,
make clear that an employee has the right to the assis-
tance of an authorized union representative even if that
might cause some delay in the administration of the drug
or alcohol test. Id., slip op. at 1, 7. Indeed, the Board
has held that if a union representative is unavailable, the
employer must give the employee time to obtain repre-
sentation or, if it does not wish to accord the employee
this right, proceed on the basis of information it could
obtain through other means.6 In Super Valu Stores, 236
NLRB 1581, 1591 (1978), enf. denied on other grounds
627 F.2d 13 (6th Cir. 1980), the judge, with Board ap-
proval, described an employer’s options in a Weingarten
situation when a union representative is not available by
stating:
In this circumstance, the employer had the choice of
giving the employee time or a postponement to obtain
the representation, or as the Supreme Court pointed out
in Weingarten . . . of advis[ing] the employee that it
will not proceed with the interview unless the employ-
ee is willing to enter the interview unaccompanied by
his representative (internal quotation marks omitted).
See also Safeway Stores, 303 NLRB at 996 & 996 fn. 13
(finding that employer violated employee’s Weingarten
rights by proceeding immediately with interview in the ab-
sence of a representative where a representatives might have
been made available without undue delay), citing Super
Valu Stores, 236 NLRB at 1581.
In sum, where an employee requests union representa-
tion before participating in a disciplinary investigation,
the employer has three clearly established options: (1)
grant the employee’s request; (2) give the employee the
option of proceeding without representation; or (3) dis-

“Termination-of-Employment” indicates that Diaz “refused to go for
drug testing under the reasonable suspicion of substance abuse” and
“therefore he has been terminated.”
5 NLRB v. Weingarten, 420 U.S. 251 (1975).
6 See Consolidated Freightways Corp., 264 NLRB 541, 542 (1982).
continue the interview and make a disciplinary decision
based on the information it has available. The Respond-
ent did not abide by any of these options. Instead, after
Diaz invoked his Weingarten rights and learned that
Gonzalez was not available to assist him, the Respondent
presented Diaz with an ultimatum: take the test immedi-
ately without representation or be treated as if he had
tested positive and face termination. Thus, despite Diaz’
insistence on the presence of a Weingarten representa-
tive, the Respondent insisted on continuing the inter-
view−an option not permitted under Board or court prec-
edent. See Ralphs Grocery, above.
Our dissenting colleague would nevertheless find that
Diaz’ phone conversation with Gonzalez satisfied his
right to union representation under Weingarten. It is
clear, however, that Weingarten contemplates the physi-
cal presence of a union representative in order to actively
assist the employee. As the judge found, the Supreme
Court in Weingarten noted the importance of the physical
presence of the union agent who “is present to assist the
employee, and may attempt to clarify the facts or suggest
other employees who may have knowledge of them.”
Weingarten, 420 U.S. at 260. Moreover, in Washoe
Medical Center, 348 NLRB 361, 361 (2006), citing Bar-
nard College, 340 NLRB 934 (2003), the Board stated
that “[i]f the employer grants the request [for representa-
tion], the union representative is entitled not only to at-
tend the investigatory interview, but to provide ‘advice
and active assistance’ to the employee.” See also
Buonadonna ShopRite, 356 NLRB No. 115, slip op. at 1
(2011) (a unionized employee has the right to request the
active assistance of a union representative at an investi-
gatory interview).
Here, the physical presence of a union representative
was reasonably necessary to provide “active assistance”
to Diaz. As found by the judge, Facility Manager
Wetherell’s and Delivery Manager Small’s concern that
Diaz was under the influence of marijuana was based
entirely on their sensory perceptions of Diaz’ appearance
and odor. At the very least, the physical presence of a
union representative was necessary in order to permit the
representative to independently observe Diaz’ condition
and potentially contest the grounds for Wetherell’s and
Small’s suspicions. Moreover, we find it significant that,
when Facility Manager Wetherell instructed Diaz to go
for a drug test (either by driving with Wetherell or by
driving himself), Wetherell told Diaz that they would
“finish talking there.” Wetherell thus clearly indicated
that the interview—even apart from the drug test itself—
would continue, rendering Diaz’ brief phone conversa-
tion with Gonzales even less satisfactory in the circum-
stances. Finally, unlike our dissenting colleague, we find
MANHATTAN BEER DISTRIBUTORS, LLC 3
that the presence of a union representative could have
provided Diaz valuable assistance even with respect to
the testing procedure itself. For example, the representa-
tive could have advised Diaz regarding the standard test-
ing protocol and ensured that those protocols were fol-
lowed. For those reasons, we disagree with our colleague
that the phone conversation with Gonzalez satisfied Di-
az’ right to union representation.7
In making that finding, we have given due considera-
tion to employers’ legitimate need to conduct drug and
alcohol testing in a timely manner. As indicated in
Ralphs Grocery, we acknowledge that an employer can-
not delay testing indefinitely while an employee seeks
out an available union representative. But, as described,
our precedent in this area of the law, as in others, re-
quires that we seek a reasonable accommodation of em-
ployers’ legitimate management interests and employees’
legitimate Section 7 interests, rather than serve one at the
complete expense of the other.8 So, here, our position is
not that the Respondent was required to postpone indefi-
nitely a drug test of Diaz, but rather that the Respondent
was required to afford Diaz a reasonable period of time
to obtain union representation, which it did not. Notably,
in addition to calling Gonzalez, Diaz attempted to con-
tact Assistant Shop Steward Henry, who was at work that
day, but the Respondent did not allow Diaz sufficient
time to determine whether Henry might become availa-
ble. Also relevant here, as noted by the judge, is the Re-
spondent’s own witness’s acknowledgment that marijua-
na stays in an employee’s system for 3 months, lessening
the urgency of an immediate drug test in this particular
case. Indeed, the Respondent itself never communicated
to Diaz that taking a drug test was time-sensitive, nor
does it argue that point in its exceptions.9 And, last,

7 We also observe that Diaz’ statement to Wetherell and Small—
“[s]ince [Gonzales is] not able to be present, I’m not taking the test”—
did not constitute a waiver of his Weingarten rights. See Westside
Community Mental Health Center, 327 NLRB 661, 665–666 (1999)
(that employees continued to answer the employer’s questions after the
employer refused to grant employees’ requests for a union and/or legal
representative did not constitute waivers of their Weingarten rights).
8 As in many areas of labor policy, “[t]he ultimate problem is the
balancing of the conflicting legitimate interests.” NLRB v. Truck Driv-
ers, 353 U.S. 87, 96 (1957).
9 The Respondent expressly acknowledges that it did not instruct Di-
az to submit to an alcohol test because it did not have a reasonable
suspicion that Diaz was under the influence of alcohol. Accordingly,
the dissent’s emphasis on the time-sensitive nature of alcohol testing,
reflected in our decision in System 99, 289 NLRB 723 (1988), has no
bearing on this case.
Moreover, the Respondent’s own witness’s testimony and its failure
to communicate to Diaz that time was of the essence indicate that the
Respondent itself did not consider the matter particularly time-
sensitive, which, in turn, is relevant to whether the Respondent gave
there is no evidence that the Union was attempting to
frustrate the Respondent’s investigation of Diaz or oth-
erwise cause delay. In fact, the relevant events, from the
time Diaz walked into the facility until the time he was
sent home, occurred over a less than 2-hour period.10
For these reasons, and for those given by the judge, we
find that the Respondent violated Section 8(a)(1) by
denying Diaz the right to have union representation pre-
sent at an investigatory interview that he reasonably be-
lieved could result in discipline.
III. DIAZ’ DISCHARGE
The judge found, and our dissenting colleague would
agree, that the Respondent did not violate the Act by
terminating Diaz. Applying Wright Line,11 the judge
found that the General Counsel failed to show that the
Respondent bore animus against Diaz’ protected concert-
ed activity of requesting union representation during the
Respondent’s investigation into his suspected drug use.
Instead, the judge found the Respondent’s decision to
discharge Diaz was based on his failure to take the drug
test as well as his physical conditions that led to the con-
clusion that Diaz had reported to work under the influ-
ence. Citing Taracorp Inc., 273 NLRB 221 (1984), and
System 99, 289 NLRB at 723, the judge concluded that
the General Counsel failed to show a nexus between the
denial of Diaz’ Weingarten right and his discharge.
Contrary to the judge and our colleague, we find that
the Respondent violated Section 8(a)(1) of the Act by
discharging Diaz for his refusal to take a drug test with-
out having a union representative present.12 The Board’s
recent decision in Ralphs Grocery, above, 361 NLRB
No. 9 (2014), is directly on point. In that case, the Board
adopted the judge’s finding that the employer violated
Section 8(a)(1) by suspending and discharging an em-
ployee for his refusal to submit to a drug and alcohol test
without the presence of his union representative. Id., slip

Diaz a reasonable opportunity to obtain union representation under the
circumstances.
10 Although we shall continue to take careful account of the particu-
lar circumstances of each case, we observe that, to the extent employers
(and unions) remain concerned about ensuring timely testing of em-
ployees suspected of working under the influence of drugs or alcohol,
they remain free to negotiate appropriate procedures through collective
bargaining. The parties might agree, for example, that at least one
union representative will be readily available or on call during all work-
ing hours to attend investigative interviews that might include such
testing.
11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
12 Although the complaint alleges that Diaz’ discharge violated Sec.
8(a)(3) as well as Sec. 8(a)(1), we find it unnecessary to address this
allegation because it would not materially affect the remedy. See, e.g.,
Ralphs Grocery, 361 NLRB No. 9, slip op. at 8–9 (finding it unneces-
sary to address whether employee’s discharge also violated 8(a)(3)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
op. at 1, 5. The employer’s termination report stated that
the employee “was terminated for insubordination and
refusal to take a drug test.” Id., slip op. at 6. The report
also stated that the employee’s refusal to take the drug
test constituted an “automatic ‘positive’ test result.” Id.
The Board found that the judge’s make-whole remedy
was appropriate because the reason for the employee’s
suspension and discharge was inextricably linked to his
assertion of Weingarten rights. The Board observed that
“[b]y relying on [the employee’s] refusal to take the test
as a basis for discipline, the [employer] penalized [the
employee] for refusing to waive his right to representa-
tion, irrespective of whether it considered his refusal to
be insubordination or an automatic positive test result.”
Id., slip op. at 1.
The facts of Ralphs Grocery are strikingly similar to
those presented here. As the judge found, the Respond-
ent discharged Diaz based on his refusal to submit to a
drug test. Small told Diaz that if Diaz refused to take the
drug test, then the Respondent would consider it a posi-
tive test result, which could lead to Diaz’ suspension
and/or termination. After Diaz insisted upon exercising
his Weingarten rights, this is exactly what occurred—the
Respondent treated Diaz’ refusal to take the drug test
without the benefit of union representation as an auto-
matic positive test result and terminated him.13 Because
Diaz refused to take the test without having his union
representative present, the reason for Diaz’ discharge
was inextricably linked to his assertion of Weingarten
rights. As in Ralphs Grocery, there is “simply no way to
divorce [Diaz’s] refusal from his assertion of his
Weingarten rights.” 361 NLRB No. 9, slip op. at 1.14
Accordingly, Diaz’ discharge was a direct result of his
invocation of his Weingarten rights, and reinstatement
and backpay are warranted.15

13 As in Ralphs Grocery, the Respondent did not terminate Diaz
based on the information that it already had prior to Diaz’ invocation of
his Weingarten rights.
14 The Respondent argues that Ralphs Grocery is distinguishable
from this case because there, unlike here, the termination report did not
mention the employee’s observed behavior or conduct before or during
the meeting, and it made no finding, apart from the employee’s refusal
to take the sobriety test, that he was under the influence of intoxicants.
We find that the facts of this case do not differ materially from those in
Ralphs Grocery.
15 The Respondent and our dissenting colleague assert that Diaz’ dis-
charge was lawful, reasoning that the decision to terminate was based
upon reasonable suspicion of drug use formed by Small and Wetherell.
The Respondent in particular argues that the disciplinary documents
prepared in connection with Diaz’ termination indicate that it possessed
a reasonable suspicion that Diaz was under the influence of drugs. We
find no merit in this argument because the evidence supports the
judge’s finding that the Respondent terminated Diaz because he refused
to submit to the drug test without union representation. Although it is
true that the Respondent had a reasonable suspicion that Diaz came to
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 4 in
the judge’s decision.
“4. By discharging Diaz on June 8 because of his re-
fusal to submit to a drug test without having a union rep-
resentative physically present at the investigatory inter-
view, the Respondent engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(1) of the Act.”
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Specifically, having found that the Respondent violat-
ed Section 8(a)(1) by discharging Joe Garcia Diaz for his
refusal to take a drug test without union representation,
we shall order it to offer him full reinstatement to his
former job or, if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed, and to make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at

work under the influence of drugs, and that several of the discharge
documents describe the circumstances under which the supervisors
developed those suspicions, not one of them states that a reasonable
suspicion concerning Diaz’ alleged drug use itself was the reason for
his termination. As the judge found, “[a]ll the documents prepared by
the Respondent at the time of [Diaz’s] discharge recite that he was fired
for refusing to take the [drug] test.” Further, Director Reif, who made
the final decision to discharge Diaz, testified that the reason he decided
to discharge Diaz was “because of his refusal to submit to a reasonable
suspicion drug test.” For the same reasons, there is no merit to our
dissenting colleague’s argument that the Respondent discharged Diaz
because he failed to overcome a presumed positive test result, an argu-
ment that is foreclosed by Ralphs Grocery in any event. See Ralphs
Grocery, 361 NLRB No. 9, slip op. at 1 (observing that there is no way
in these circumstances to divorce the employee’s refusal to take a drug
test from the assertion of his Weingarten rights).
Moreover, even if Small’s and Wetherell’s observations of Diaz’
odor and appearance on June 8 formed part of the basis of the Re-
spondent’s decision to discharge Diaz, the Respondent has not shown
that it would have terminated Diaz on that basis alone, even absent his
refusal to submit to the drug test without union representation. See
Ralphs Grocery, 361 NLRB No. 9, slip op. at 2 (the employer failed to
show that it would have discharged the employee in the absence of its
impermissible reliance on his purported insubordination, i.e., his refusal
to take the drug and alcohol test).
Contrary to the judge and the Respondent, Taracorp, does not sup-
port finding that the termination of Diaz was lawful. In that case, the
employer terminated the employee for a reason unrelated to his request
for union representation: the employee’s refusal to perform a job as-
signment. 273 NLRB at 223–224.
MANHATTAN BEER DISTRIBUTORS, LLC 5
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010).16 We
shall also order the Respondent to remove from its files
any reference to Diaz’ unlawful discharge and to notify
him in writing that this has been done and that the unlaw-
ful discharge will not be used against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Manhattan Beer Distributors LLC, Wy-
andanch, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Requiring employees to submit to a drug test as
part of an investigation into their behavior or conduct
notwithstanding their request to have a union representa-
tive at the investigatory interview.
(b) Discharging employees because of their refusal to
submit to such a drug test without having a union repre-
sentative at the investigatory interview.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Joe Garcia Diaz full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Diaz whole for any loss of earnings and oth-
er benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section
of this decision.
(c) Compensate Diaz for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and file
a report with the Social Security Administration allocat-
ing the backpay award to the appropriate calendar quar-
ters.
(d) Within 14 days from the date of this Order, remove
from its files any reference to Diaz’ unlawful discharge,
and within 3 days thereafter, notify him in writing that
this has been done and that the discharge will not be used
against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for

16 Consistent with our decision in Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB No. 10 (2014), we shall require the Respond-
ent to reimburse discriminatee Joe Garcia Diaz for the adverse tax
consequences, if any, of receiving a lump-sum backpay award, and to
file a report with the Social Security Administration allocating the
backpay to the appropriate calendar quarters.
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Wyandanch, New York facility, copies of the attached
notice marked “Appendix.”17 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since June 8, 2013.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 29, a sworn certi-
fication of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 27, 2015
Kent Y. Hirozawa, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
MEMBER JOHNSON, dissenting.
My colleagues today have painted companies seeking
to maintain safe, drug-free workplaces into a corner by
unnecessarily foreclosing their ability to take reasonable
steps to confirm whether an employee has reported to
work under the influence of drugs or alcohol. Because,
in my view, the record establishes that the Respondent
acted reasonably here, I would dismiss the allegation that
the Respondent violated Joe Garcia Diaz’ Weingarten1
rights by directing him to submit to a drug test based on a
reasonable suspicion of his drug use. Further, because
the Respondent reasonably discharged Diaz based on his
refusal of the request to take a drug test—a request based
on objective evidence suggesting that Diaz was under the
influence of drugs or alcohol—I would adopt the judge’s
dismissal of the allegation that the Respondent unlawful-
ly discharged Diaz.
It has been settled Board law that an employee has the
right to consult with a union representative before re-
sponding to the employer’s request that the employee
submit to a drug and/or alcohol test. Safeway Stores, 303
NLRB 989 (1991); System 99, 289 NLRB 723, 725
(1988). I do not quarrel with my colleagues there. Ap-
plying this precedent, in Ralphs Grocery Company, 361
NLRB No. 9 (2014), I agreed with the majority that the
employer unlawfully interfered with the employee’s
Weingarten rights when it insisted that the employee take
a drug and alcohol test notwithstanding his request for
representation. But this case is different. Unlike in
Ralphs Grocery, the Respondent here not only afforded
Diaz the opportunity to consult with his union repre-
sentative before deciding whether to take the drug test,
but Diaz in fact did consult with, and obtain advice from,
his union representative Gonzalez before deciding not to
take the drug test.
The right to representation in a traditional investigato-
ry interview contemplates a “knowledgeable” union rep-
resentative who can provide “advice and active assis-
tance” to the employee. Washoe Medical Center, 348
NLRB 361 (2006), quoting Barnard College, 340 NLRB
934 (2003). As a matter of logic, however, the role of a
union representative is more limited in a drug- or alco-
hol-testing situation. The presence of another party in
the midst of the physical administration of a drug- or
alcohol-test, whether or not that person is a union repre-
sentative, poses substantially increased risks of inaccura-
cy and adulteration.2 Moreover, the benefit of any kind
of legitimate “advice and active assistance” that would
happen in that context is likely to be minimal. Thus, in

1 NLRB v. Weingarten, 420 U.S. 251 (1975).
2 See note 4, infra.
my view, the legitimate need for a test free of such inac-
curacy and adulteration outweighs whatever minimal
benefit might be provided. Here, once an employee has
the opportunity to confer with a union representative
prior to deciding whether to submit to the drug or alco-
hol test, the union representative no longer has a role to
play under our statute that would overcome the legiti-
mate business interest in an accurate and unadulterated
drug test. There is simply no basis to extrapolate from
Weingarten a rule that employees have the right to have a
union representative present for the physical administra-
tion of drug or alcohol testing.3
Here, the Respondent permitted Diaz to contact his un-
ion representative, and Diaz was able to have a phone
conversation with Gonzalez. Indeed, Gonzalez offered
Diaz advice on whether he should take the drug test.
After conferring with Gonzalez, his chosen representa-
tive, Diaz exercised his right to refuse to take the drug
test. Unlike my colleagues, I do not believe that Gonza-
lez’s physical presence would have affected Diaz’ deci-
sion as to whether to submit to the drug test. In my view,
in these circumstances, Weingarten requires nothing
more. Accordingly, I find that Diaz’ phone conversation
with Gonzalez satisfied his right to union representation
under Weingarten.4
My colleagues claim to recognize an employer’s need
to drug test employees without unreasonable delay. Yet,
in the same breath, they find that the Respondent was
required to wait some undetermined amount of time so
that Diaz could find a representative to accompany him
to the drug testing site. Moreover, the majority appears
to agree with the judge’s finding that there would have
been no harm to the Respondent in postponing the inves-
tigatory interview until Diaz’ representative could attend.

3 And, of course, the Board has never before held that an employee's
Weingarten rights with regard to drug or alcohol testing extend to the
right to have a union representative physically present for the testing
itself.
4 I disagree with my colleagues that the fact that Facility Manager
Wetherell purportedly told Diaz that they could finish talking at the
drug testing site shows that the investigatory interview would continue.
As the judge found, the Respondent directed Diaz to participate in an
“investigatory interview” within the meaning of Weingarten when
Wetherell and Small asked Diaz questions about his suspected drug use
and ordered him to take a drug test. And, as the judge further noted,
“[t]he purpose of the interview was to direct Diaz to take a drug test.”
Diaz had the right to consult with a union representative before re-
sponding to Wetherell and Small’s request, a right that I have found
was satisfied based on Diaz’ phone conversation with Gonzalez. I do
not agree with my colleagues that Wetherell’s comment made Diaz’
phone call with Gonzalez any less sufficient; Diaz had already received
advice from Gonzalez on whether he should take the drug test when
Wetherell allegedly made this remark to Diaz.
MANHATTAN BEER DISTRIBUTORS, LLC 7
I find my colleagues’ rationale deeply concerning. As
I explained in Ralphs Grocery, I do not believe that an
employer should have to delay a drug or alcohol test in
the event that no union representative is available. Alco-
hol and drug abuse creates significant safety and health
hazards in the workplace and also can result in decreased
productivity and poor employee morale. Consequently,
reasonable suspicion drug testing plays an important role
in maintaining a safe workplace. “[D]rug testing in the
workplace connects to occupational safety as a key com-
ponent in protecting the safety, health, and welfare of
employees, as well as the general public.”5 Moreover,
testing for drug and, especially alcohol use is time-
sensitive; in order for the testing to provide accurate re-
sults, the testing must occur before the suspected drug or
alcohol dissipates in the employee’s system. According-
ly, employers have a legitimate and substantial interest in
immediately testing employees suspected of using drugs
or alcohol, particularly employees who hold safety-
sensitive positions. My colleagues’ decision here, as in
Ralphs Grocery, permits an employee and union to delay
a drug or alcohol test while waiting for a union repre-
sentative to become available, despite the fact that any
substantial delay has a real probability of altering the
results of the test. Furthermore, one cannot ignore the
reality that there are various methods and products avail-
able to individuals seeking to alter the results of a drug
test. One need only “type the words ‘beat a drug test’
into any Internet search engine and it’s quickly apparent
that there’s an entire industry built around cheating.”6
Accordingly, the real potential for delay, inaccuracy, and
adulteration resulting from my colleagues’ decision here
substantially interferes with employers’ important inter-
est in maintaining a safe, drug-free workplace. See Co-
ca-Cola Bottling Co. of Los Angeles, 227 NLRB 1276
(1977) (emphasizing the admonition in Weingarten that
the right to choose representation should not interfere

5 Reilly, Joe, “Drug Testing & Safety: What’s the Connection?,”
OH&S Occupational Health & Safety, (September 1, 2014), available
at https://ohsonline.com/articles/2014/09/01/drug-testing-and-
safety.aspx.
6 “Cheating On A Drug Test,” The National Center for Drug Free
Sport, Inc., (Third Quarter, 2005), available at
http://www.drugfreesport.com/newsroom/insight.asp?VolID=31&Topi
cID=7.See also Zwillich, Todd, “Experts Say Internet and Household
Products Bring New Challenges to Drug Testing,” WebMD Health
News, (July 28, 2008), available at http://www.webmd.com/mental-
health/addiction/news/20080728/drug-test-cheats-try-new-tricks-on-
labs; Cooper, Barry, “Passing a drug test by Ex Narc,”
NeverGetBusted, (2015) available at
http://nevergetbusted.com/nevergetbusted-tips/passing-a-drug-test/.
with “legitimate employer prerogatives” such as conduct-
ing investigatory interviews without delay).7
For these reasons, I would dismiss the complaint alle-
gation asserting that the Respondent’s actions here vio-
lated Diaz’ Weingarten rights.
Next, contrary to my colleagues, I would adopt the
judge’s dismissal of the allegation that the Respondent’s
discharge of Diaz was based on his assertion of his
Weingarten rights and, therefore, violated the Act. Like
the judge, I would find that Diaz was discharged based
on the Respondent’s reasonable suspicion that he had
reported to work under the influence of drugs as well as
on Diaz’ failure to overcome that reasonable suspicion
by submitting to, and passing, a drug test.
I agree with the judge that there is no record evidence
that the Respondent exhibited any hostility toward Diaz’
request for union representation. Indeed, they gave him
the opportunity to pursue that request through his con-
versation with Gonzalez. Rather, the evidence shows
that Diaz’ managers had a reasonable suspicion that he
was under the influence of drugs based on his appearance
and smell and that, absent a test to confirm or deny their
suspicions, they acted in accordance with their observa-
tions with regard to his physical condition in deciding to
discharge him.
Under the parties’ collective-bargaining agreement, the
Respondent has the right to terminate or otherwise disci-
pline an employee if it reasonably believes that the em-
ployee has used drugs. However, it has been the Re-
spondent’s policy not to discipline employees without
first affording them with the opportunity to overcome
such reasonable suspicions by taking a drug test. Con-

7 My colleagues find that there was no need to immediately test Diaz
for drugs based on Small’s testimony that marijuana stays in an em-
ployee’s system for 3 months. I am troubled that my colleagues believe
that it is sufficient to rely on a layperson’s non-scientific opinion. Even
more shocking is the majority’s rationale that the Respondent did not
have an interest in Diaz immediately submitting to a drug test because
it never informed him that taking the drug test was time-sensitive. It is
reasonable that an employer would not tell an employee that drug or
alcohol testing is time sensitive because it is common knowledge that
these substances quickly dissipate in one’s body.
I note that the judge’s analysis in System 99, which the Board adopt-
ed without comment, supports my position that an employer must be
able to immediately test employees suspected of using drugs or alcohol.
There, the judge, in finding a Weingarten violation, found it doubtful
that the employee “had a Weingarten right to delay the interview until
[the chief steward] returned, . . . considering that [he] was not expected
back for perhaps an hour . . . and the passage of that much time has
made the results of any sobriety test to which [the employee] might
ultimately agree to submit largely useless . . . .” System 99, 289 NLRB
at 727 (emphasis added). Although I recognize that testing for alcohol
may be more time-sensitive than testing for drugs, I believe the judge’s
rationale in System 99 is instructive because, in my view, an employer
should not have to delay testing in either context.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
sistent with its collective-bargaining agreement and drug-
testing policy, the Respondent requested that Diaz submit
to a reasonable suspicion drug test. Diaz, however, re-
fused the opportunity to take the test, fully aware that a
refusal would be treated the same as a positive result for
which he could be terminated. The Respondent thereaf-
ter, consistent with its contract and drug-testing policy,
treated Diaz’ refusal of the drug test as a positive result
and terminated him.
Here, I take issue with my colleagues’ assessment of
the evidence in arguing that Diaz was terminated for his
refusal qua refusal. In any situation where a refusal is
treated by the employer’s preexisting policy or practice
as either a failure to overcome reasonable suspicion, like
here, or an automatic positive test result, like Ralph’s
Grocery, then terminating an employee “for the refusal”
is really terminating the employee because of the preor-
dained result under the policy, not because of the em-
ployee’s protected assertion that he or she would refuse
the test. In other words, under the Weingarten doctrine,
the employee has chosen to “forgo the interview” and
what should happen is that the employer is now free to
make its decision without the benefit of information that
could have been provided by the interview:
[The employee who asserts the right not to par-
ticipate in the interview] would then also forego
whatever benefit might come from the interview.
And, in that event, the employer would, of course,
be free to act on the basis of whatever information
he had and without such additional facts as might
have been gleaned through the interview.
NLRB v. Weingarten, 420 U.S. at 259 (quoting Quality Mfg,
195 NLRB 197, 198–199 (1972)).
As the Supreme Court held in affirming the
Weingarten right as a permissible construction of the
Act, the employer should be “free to act” on the basis of
the information it has. And, if the employer has a pre-
existing policy or practice that a termination will occur if
potentially exculpatory information is not provided by
the drug test, then the termination “for the refusal to take
the drug test” is merely the employer acting as the Su-
preme Court said it should be “free to act” under
Weingarten. Simply put, the employer is merely carry-
ing out a policy or practice that it already stated would
apply where exculpatory evidence is not provided.8

8 Indeed, the existence of a pre-existing policy in relation to drug
tests furthers the mechanism set up by Weingarten because the employ-
ee is now fully informed concerning the ramifications of his or her
decision not to take the test. By essentially transforming such policies
into violations of law merely because their triggering event is an em-
ployee refusal to take the test, my colleagues undermine Weingarten in
this additional way.
Additionally, just as in Ralphs Grocery, my col-
leagues’ ruling suffers from the flaw that it puts an em-
ployer in an untenable situation. The employer can wait
an undetermined amount of time until a representative
becomes available while the drugs or alcohol dissipate in
the employee’s system, or the employer can discipline
the employee based on the information it has from other
sources. By choosing the latter option, however, the em-
ployer will likely open itself up to other legal challenges
and questions concerning the basis for its termination
decision. If an employer disciplines the employee based
only on the observed appearance or conduct of the em-
ployee, the employer may well lose in a subsequent arbi-
tration, where the employer will only be able to rely on
the personal observations of a supervisor and not objec-
tive evidence. Further, under many drug policies, em-
ployers are unable to take disciplinary action without
first confirming the employee had, in fact, violated the
company’s drug and alcohol policy. Also, employers
may be sued under state law for terminating an employee
based on their perception alone.9 Finally, I note that the
majority has now created an incentive for union repre-
sentatives to make themselves unavailable in the circum-
stances presented here because an employer will not be
able to lawfully terminate an employee without the drug
or alcohol test, but cannot administer the test until the
representative is present.
In sum, I find that the Respondent’s discharge of Diaz,
for cause, did not violate the Act, See System 99, 289
NLRB at 723 fn. 3 (1988). I would adopt the judge’s
dismissal of this complaint allegation and, accordingly,
would dismiss the complaint in its entirety. Accordingly,
I further find that a make-whole remedy is not appropri-
ate. Taracorp Inc., 273 NLRB 221, 223 fn. 12 (1984)
(“A make-whole remedy can be appropriate in a
Weingarten setting if, but only if, an employee is dis-
charged or disciplined for asserting the right to represen-
tation.”), citing Garment Workers ILGWU v. Quality
Mfg. Co., 420 U.S. 276 (1975).

9 See Reeves v. Singleton, 994 S.W.2d 586, 590 (Mo.App. W.D.
1999) (reversing employee’s dismissal for refusal to take a drug test
where the employer failed to establish reasonable suspicion);
Kraslawsky v. Upper Deck Co., 56 Cal.App.4th 179 (Cal.App. 4 Dist.,
1997) (employee who was terminated because she refused to take a
urinalysis drug/alcohol test under employer’s reasonable cause drug-
testing program prevailed on summary judgment where evidence raised
factual question as to whether employer had reasonable cause to believe
employee was under the influence of intoxicants).
MANHATTAN BEER DISTRIBUTORS, LLC 9
Dated, Washington, D.C. August 27, 2015
Harry I. Johnson, III, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT require you to submit to a drug test as
part of an investigation into your behavior or conduct
notwithstanding your request to have a union representa-
tive at the investigatory interview.
WE WILL NOT discharge or otherwise discriminate
against you because of your refusal to submit to such a
drug test without having a union representative at the
investigatory interview.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Joe Garcia Diaz full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Diaz whole for any loss of earnings
and other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL compensate Diaz for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and WE WILL file a report with the Social Security Ad-
ministration allocating the backpay award to the appro-
priate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Diaz, and WE WILL, within 3 days there-
after, notify him in writing that this has been done and
that the discharge will not be used against him in any
way.
MANHATTAN BEER LLC
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-115694 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street SE, Washington, D.C.
20570, or by calling (202) 273-1940.
Matthew A. Jackson, Esq., for the General Counsel.
Allen B. Roberts and Dustin E. Stark, Esqs. (Epstein, Becker &
Green, P.C.), of New York, New York, and Philip S.
Rantzer, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed by Joe Garcia Diaz (Diaz) on October 23, 2013, a
complaint was issued on December 19, 2013, against Manhat-
tan Beer Distributors LLC (Respondent or Employer).
The complaint alleges essentially that (a) the Respondent de-
nied Diaz’ request to be represented by the Union during an
investigatory interview (b) Diaz had reasonable cause to be-
lieve that the interview would result in disciplinary action being
taken against him (c) Diaz refused to attend the interview with-
out his union representative present and (d) the Respondent
discharged Diaz because he refused to attend the investigatory
interview without union representation.
The Respondent’s answer denied the material allegations of
the complaint and on February 19, 2014, a hearing was held
before me in Brooklyn, New York. On the entire record, includ-
ing my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent, a domestic corporation having its principal
office at 955 East 149th Street, Bronx, New York, and a place
of business at 401 Acorn Street, Wyandanch, New York, has
been engaged in the nonretail sale and distribution of beverag-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
es. During the past year, the Respondent has purchased and
received at its Wyandanch, New York facility, goods and mate-
rials valued in excess of $50,000 directly from points located
outside New York State. The Respondent admits and I find that
it has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. The Respondent
also admits and I find that Laundry Distribution and Food Ser-
vice Joint Board, affiliated with Service Employees Interna-
tional Union (Union) has been a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Respondent, which delivers beer to retail establishments,
operates a delivery operation in Wyandanch, Long Island,
where it employs about 90 workers. The unit includes truck
drivers and helpers.
The employees are represented by the Union which has had
successive collective-bargaining agreements with the Employ-
er. Diaz began his employment in August 2010, and was laid
off for 3 months in November 2012, returning in December
2012, or early 2013, as a driver’s helper. In that capacity he
helped the driver maintain the inventory of products on the
truck, helped deliver the product and remained in the truck
when the driver collected money from the customers.
Diaz served as a union shop steward from 2011 to Spring,
2012. He helped employees with grievances and disciplinary
actions against them by speaking to their managers, and en-
sured that their rights were not being violated.
Diaz did not represent any employees who were asked to
take a drug test. However, he was aware that the Respondent
had a drug testing policy. He signed a statement upon his hire
which acknowledged that “no employee shall report to work
while under the influence of such drugs. Employees who en-
gage [I]n such conduct will be subject to discipline up to and
including discharge.” In addition, he took a preemployment
drug test and a test upon his return from layoff. Prior to the
latter test, he was told by his union agent that if he failed the
test he would be fired.
The parties’ collective-bargaining agreement provides, in
relevant part, that “any employee who . . . is impaired by . . .
narcotics, illegal drugs, prescription drugs absent a prescription,
controlled substances . . . when reporting for work . . . is subject
to immediate disciplinary action, up to and including termina-
tion of employment.”
The contract further states, in relevant part, that “employees
other than drivers may be tested only when there is reasonable
suspicion that the employee is working or has reported to work
while impaired by drugs or alcohol. . . .”
The Respondent’s director or operations, Ron Reif, testified
that notwithstanding the contract’s provision that the Employer
has the right to right to immediately fire an employee who is
impaired, the Respondent has no right to discipline the worker
without first giving him an opportunity to be tested for sub-
stance abuse. He stated that “the employee has the right to be
drug tested. We never take that away from an employee . . .
“which is intended for the benefit of the employee.”
2. The events of June 8
On June 7, 2013, Diaz injured his knee and shoulder at work
and that day submitted an incident report. He reported to work
the following day, June 8, at 6:33 a.m. and went to the office to
learn which route he would be assigned that day. The route
assignments were posted on the outside of the office window.
Diaz observed that there was no assignment listed next to his
name. Rather, the notation “workers compensation” appeared
next to his name. He saw Roy Small, the delivery manager,
inside the office, and Tony Wetherell, the facility manager,
standing near Small. Diaz opened the window and asked Small
why he was placed on “workers compensation,” adding that he
was ready to work.
Small replied that since Diaz submitted an incident report the
previous night he assumed that Diaz would not be at work due
to a workers compensation claim. Small added that if he in-
tended to report to work he should have called in. According to
Diaz, Small said that he would see if work was available for
him.1 During their 5 or 6 minute conversation through the open
window, Diaz was about 3 feet away from Small.
Small is responsible for administering the Respondent’s drug
testing policy. He noted that safety is a top priority with the
Employer since the employees work with heavy equipment,
trucks and forklifts, stating that it is “crucial” that employees
appear at work in an unimpaired state.
Small attended a training class on the topic of “reasonable
suspicion” in December, 2011 given by the JW Rufolo Institute
for Occupational Safety and Health. Small stated that the train-
ing consisted of what behaviors an employee might demon-
strate if he is under the influence of drugs or alcohol. Inasmuch
as he received this training, he was authorized to determine
whether reasonable suspicion exists that an employee is under
the influence of drugs. He stated that in making such a deter-
mination, the manager observes the employee’s behavior, and if
the supervisor has such reasonable suspicion, the employee is
asked to submit to a drug test which is administered by a drug
testing facility off site. The employee is driven to the site by a
manager who waits in the waiting room.2
Small testified that when Diaz appeared at the driver’s deliv-
ery window he “reeked of the smell of marijuana,” and his eyes
were glassy and bloodshot. He asked Diaz to take a drug test
and Diaz refused, saying that his “rights are being violated.”
Small conceded that Diaz asked to speak with shop steward
Joseph Gonzalez and left the office to call Gonzalez.
According to Diaz, Wetherell asked Small if he “smelled
that?” Small said “yes.” Wetherell asked Diaz to enter his of-
fice and Diaz did so. Wetherell asked him questions about the
incident report and asked if he was feeling well, and what
caused his injuries. Diaz answered, and then Wetherell asked
“how are you feeling?” Diaz responded that he felt “great. I’m
here to work.”

1 Small denied offering to see if he could find work for Diaz.
2 Diaz first testified that during the return from layoff drug test, no
union representative was present with him at the testing facility or in
the toilet area when he produced his urine specimen. However, he later
testified that a union representative was “just outside the door.”
MANHATTAN BEER DISTRIBUTORS, LLC 11
Wetherell then said “have you been doing anything stupid?”
Diaz asked why he was asking, and Wetherell replied “you
smell a little funny.” Diaz answered that he did not know what
he was talking about. Diaz testified that he believed that
Wetherell suspected that he smelled of marijuana. Wetherell
then asked him to wait outside the office.
Diaz stated that he waited for over 1 hour and, seeing that
other employees received their routes and left the facility, he
repeatedly asked Small if he would be receiving an assignment.
According to Diaz, Small told him to wait or said that he was
trying to find an assignment. Finally, Diaz asked Small whether
he should go home. Small replied that he had a route for him
but first he had to take a drug test. Small replied that the test
was necessary because “you smell like marijuana.” Wetherell
entered the office and said that he was looking for the drug
screening paperwork.
Diaz testified that he asked Wetherell why he needed to take
a drug test and Wetherell replied “you smell like marijuana.”
Diaz testified that he told Small “I don’t have a problem taking
the drug test. At that point I just wanted my shop steward.”
Small answered that “it’s a company issue now. The shop stew-
ards have nothing to do with it.” Diaz replied “I don’t believe
that’s correct, because when I was a shop steward I had to be
there for everything that was going on between workers and
management.” Small said “you just have to take the test.”
Diaz testified that he left the office and called shop steward
Joe Henry who did not answer the call. Diaz then called Stew-
ard Gonzalez. Wetherell then drove up and told Diaz to enter
the car to be driven to the drug testing laboratory. Diaz replied
“no, without a shop steward I’m not taking the drug test.”
Wetherell then suggested that Diaz drive himself to the test, and
that they would “finish talking there,” but Diaz refused saying
“not without a shop steward,” adding that he had Gonzalez on
the phone. Wetherell asked Diaz to have Gonzalez called him
(Wetherell).
Diaz testified that in their phone conversation he told Gonza-
lez that he was asked to take a drug test and he told the manag-
ers that “that’s fine but I need my shop steward first. I would
like you to come with me or at least be present to show me the
new collective-bargaining agreement.” Gonzalez replied that it
was his day off and he could not accompany him, and in any
event, he did not have the new contract with him. According to
Diaz, Gonzalez told him that if he felt “strongly enough” that
his rights were being violated and he needed his representative,
he should not take the test. Diaz told Gonzalez to call
Wetherell.
Small testified that when Diaz returned to the office, Small
asked him what Gonzalez said and Diaz answered that was
“between me and my shop steward.” Small then called Gonza-
lez at about 7:30 a.m. and told him that Diaz smelled of mariju-
ana and his eyes were glassy and bloodshot, adding that he
would take him for a drug test since he had a reasonable suspi-
cion that he was under the influence of marijuana. Gonzalez
replied “I understand. Do what you have to do.”
Small further stated that he again asked Diaz to take a drug
test because he reasonably suspected him of using marijuana,
warning him that if he refused, such a refusal would be consid-
ered a positive result and he could be terminated.3 Diaz refused
to take the test.
Diaz stated that he waited at the facility and a short time lat-
er, Small and Wetherell asked him what he was going to do.
Diaz replied “I feel like my rights are being violated and I don’t
have a problem taking the test, but I want my shop steward
present. Since he’s not able to be present, I’m not taking the
test.” Small suggested that Diaz take the test and after he
passed the test he could “come back, stick your nose up at us
and tell us that we messed up.” Diaz replied that he was “not
that type of person.” Small answered “do you understand by
refusing to take the drug test you’re going to be suspended?”
Diaz said “now that you explained that, yes I understand.” Diaz
repeated that he did not “have a problem taking the drug test. I
just don’t believe you guys have grounds to do this.” Small told
him to clock out and go home. Diaz left at 8:24 a.m.
Small testified that during the nearly 2-hour period that Diaz
was at the facility he observed Diaz’ “reasonable suspicion”
behavior. The rest of the time was consumed by the phone calls
between Gonzalez, Diaz, and Small.
Small could not recall Diaz saying that he would take the test
but that he wanted his shop steward present. Wetherell did not
testify. Ron Reif, the Respondent’s director of operations who
was not at the facility on June 8, testified that he was not aware
that Diaz wanted Gonzalez present at the facility at that time,
but Reif stated that he was aware that Diaz “requested his union
representative that morning.”
Three documents were completed on June 8 by Small and
Wetherell:
1. An “Observed Behavior Reasonable Suspicion Record”
concerning Diaz.4 The document stated that reasonable suspi-
cion was determined for drugs, and that the following was ob-
served: glassy and bloodshot eyes, his appearance and cloth-
ing had an odor, and “clothing reeked of the smell of marijua-
na.”
2. A Progressive Disciplinary Report which was also signed
by steward Gonzalez. The report stated that Diaz was dis-
charged because he “refused to go for a drug screening under
the reasonable suspicion of substance abuse.” It stated that
Diaz reported to work under the influence of a controlled sub-
stance. Diaz’s eyes were bloodshot and glassy and his uni-
form reeked of the smell of marijuana. Diaz was told that he
must go for a drug screening because it’s against Manhattan
Beer’s policy to have an employee working impaired in the
trade delivering beer to customers or operating equipment im-
paired and under the influence of narcotics.
3. A memo signed by Wetherell, Small and steward Gonza-

3 Ron Reif, the Employer’s director of operations, testified that it is
the Employer’s policy that an employee’s refusal to submit to a drug
test is considered a positive test which results in the employee’s dis-
charge.
4 The form stated that “according to 49 CFR Sec. 382.307, Reason-
able Suspicion Testing, the employer shall require the driver to submit
to a controlled substance . . . test if a supervisor or company official
who is trained in accordance with Sec. 382.603 determines that reason-
able suspicion exists.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
lez, which stated the following, under the heading “Termina-
tion of employment”:
• Refused to go for drug testing under the reasonable
suspicion of substance abuse.
• On Saturday, June 8, 2013, driver’s helper Joe Garcia
Diaz reported to work at 6:33 a.m. under the influence
of a controlled substance. Facility Manager Tony
Wetherell and I, Delivery Manager Roy Small were
both present in the delivery office when Joe Garcia
Diaz had his upper torso peering through the delivery
window asking what route he was assigned to. I
walked over to the delivery window to speak with Joe
Garcia Diaz and I noticed that his eyes were blood-
shot and glassy and his uniform reeked of the smell of
marijuana.
• I reached out to shop steward Joseph Gonzalez via
telephone to explain to him that Joe Garcia Diaz re-
ported to work under the influence of a controlled
substance and that he will be taken for a drug screen-
ing under the reasonable suspicion of substance abuse.
• As stated in the Collective Bargaining Agreement:
Article 39: Substance Abuse and Testing 39.1: An
Employer and the Union recognize that employee
drug and alcohol abuse may have an adverse impact
on, among other things, the general health, welfare
and safety of employees and the employer’s opera-
tion.
• Joe Garcia Diaz was then brought into the delivery of-
fice and told he had to go for a drug screening under
the reasonable suspicion of substance abuse. Joe Gar-
cia Diaz refused, therefore he has been terminated.
On June 12, Reif sent an email to certain union officials
which stated that Diaz was discharged for “his refusal to submit
to substance abuse testing based on reasonable suspicion.”
On June 11, Diaz took a drug test administered by his physi-
cian. The test was negative. On June 20, a grievance meeting
was held. Diaz stated that at that meeting union representatives
presented a copy of that test to representatives of the Employer.
Director of Operations Reif, who was at that meeting, testified
that he did not recall the June 11 drug test being discussed, nor
was it mentioned in the minutes of the meeting. Small testified
here that marijuana remains within the body for 3 months.
The grievance was denied
Diaz applied for unemployment insurance and a hearing was
held. In a decision issued in September 2013, the administrative
law judge found that after being asked to take a drug test Diaz
“conferred with his union representative and was not told to
refuse the test.” The judge further found that Diaz “contends
that he refused to submit to the drug screening because he be-
lieved it was intrusive.” She held that Diaz was discharged for
misconduct—refusing to submit to a drug screening.
Discharges of Other Employees
The Respondent presented evidence of three employees who
were discharged for refusing to submit to substance abuse or
alcohol testing.
In August 2010, employee John Reyes refused to submit to a
postvehicle accident substance abuse testing and was dis-
charged. In November 2010, employee Greg Irving was dis-
charged for refusing to submit to a reasonable suspicion sub-
stance abuse testing. In August 2013, employee Felix Marin
failed to submit to reasonable suspicion alcohol testing and was
fired.5 There was no evidence that any of the three employees
asked for union representation before they were asked to submit
to substance abuse testing. However, two of the workers, Marin
and Irving, had union representatives with them during the
interview with supervisors in which they were asked to take a
substance abuse test.
Analysis and Discussion
The complaint alleges that Diaz was discharged because he
refused to attend an investigatory interview, which he reasona-
bly believed would result in disciplinary action, without union
representation.
In NLRB v. Weingarten, 420 U.S. 251 (1975), the Supreme
Court approved the Board’s conclusion that Section 8(a)(1) of
the Act provides employees with the right to be accompanied
and assisted by their union representative at meetings that the
employee reasonably believes may result in disciplinary action.
The employee has the right to advice and active assistance from
the union representative. 420 U.S. at 260, 263.
The first question to be answered is whether Weingarten
rights attached to the interview surrounding the Respondent’s
determination that a “reasonable suspicion” drug test was war-
ranted.6 In Safeway Stores, 303 NLRB 989, 989 (1991), the
Board noted that “we do not pass on the administrative law
judge’s apparent conclusion that a drug test, standing alone,
would constitute an investigatory interview under Weingarten,”
noting that the test was part of a wider inquiry into the
dischargee’s absence record—a first step in determining wheth-
er his excessive absences were due to drug use.
The Respondnet argues that Weingarten rights did not attach
because here, unlike Safeway, there was no wider inquiry into
Diaz’ work record. The only matter under consideration was
whether he was under the influence of drugs, and a drug test
was ordered to resolve that issue. The Employer further argues,
citing U.S. Postal Service, 252 NLRB 61 (1980), that since
there were no “questions of an investigatory nature” and no
“confrontation” between Diaz and his managers there was no
investigatory interview. The Respondent asserts that the only
investigation which would have taken place was a test of Diaz’
urine specimen obtained in the privacy of the off-site independ-
ent laboratory.
I do not agree. The core issue is whether management’s rea-
sonable suspicion that Diaz was under the influence of drugs
constituted an investigatory interview. The drug test the Re-
spondent asked Diaz to take was an extension of, and a required

5 Pursuant to my request, complete documentation regarding the un-
employment insurance decision and these discharges were filed by the
Respondnet following the hearing. They have been received in evi-
dence, over the General Counsel’s objections, as R. Exhs. 1(a), 8(a),
and 9(a).
6 I do not express an opinion on whether Weingarten rights attach to
a preemployment substance abuse test or such test administered after an
employee’s return from layoff. Those tests are not at issue here.
MANHATTAN BEER DISTRIBUTORS, LLC 13
part of its investigatory process to determine if he was under
the influence of drugs. As credibly testified by manager Reif,
the Respondent has no power to discipline an employee unless
it offers him a drug test and he fails it, or if he refuses to take
the test.
Where, as here, an employer insists on administering a medi-
cal test as part of an investigation into an employee’s alleged
misconduct, the employee has a right to consult with his union
representative before consenting to take the test. Safeway
Stores, above; Systems 99, 289 NLRB 723 (1988). Once the
employee makes a valid request for representation, the burden
is upon the employer to either (1) grant the request; (2) discon-
tinue the interview; or (3) offer the employee the choice be-
tween continuing the interview unaccompanied by a representa-
tive or having no interview at all. Washoe Medical Center, 348
NLRB 361, 361, fn. 5 (2006), quoting Consolidated Freight-
ways Corp., 264 NLRB 541, 542 (1982).
In making the determination that Diaz was required to take a
drug test, Small and Wetherell observed his physical condition
and behavior, noting in their reports that he had glassy and
bloodshot eyes, his appearance and clothing had an odor, and
that his clothing reeked of the smell of marijuana.
They then questioned him, Wetherell asking whether he had
been doing anything “stupid,” an obvious inquiry as to whether
he had been using drugs. This was, effectively, an interview
within the meaning of Weingarten, as to which Diaz reasonably
could believe that he would be subject to discipline. Diaz asked
Wetherell why he was asking, and Wetherell replied that he
smelled “a little funny.” Diaz replied that he did not know what
Wetherell was talking about although he believed that
Wetherell may have suspected him of using marijuana.
In Arlington Hospital, 246 NLRB 992, 997 (1979), the
Board held that Weingarten rights do not attach when the meet-
ing between the employee and employer is solely for the pur-
pose of informing the employee of, and acting upon, a previ-
ously made disciplinary decision. However, if the employer
informs the employee of a disciplinary action and then seeks
facts or evidence in support of that action or to attempts to have
the employee admit his alleged wrongdoing or to sign a state-
ment to that effect . . . the employee’s right to union representa-
tion would attach.”
Here, after Wetherell told Diaz that he smelled “a little fun-
ny,” which Diaz believed was a reference to a possible odor of
marijuana, Wetherell asked Diaz ““have you been doing any-
thing stupid?” This question went beyond a simple order that
Diaz take the drug test and was attempting to have Diaz admit
to using drugs. Accordingly, if the order that Diaz take a drug
test is considered disciplinary action, Wetherell’s question
whether he was doing anything stupid sought to elicit an admis-
sion from Diaz that he was under the influence of drugs. The
right to union representation at that point clearly attached.
At that point in the interview, and also when the determina-
tion was made that there was reasonable suspicion that Diaz
had used drugs, the interview became inextricably intertwined
with the direction that Diaz submit to a drug test. Diaz’ union
agent could have been of aid to him in the interview in chal-
lenging the basis upon which that determination was made. The
agent could have expressed his opinion that Diaz exhibited
none of the manifestations of drug use observed by the manag-
ers.7
That is the type of assistance that the Supreme Court held
was required in an investigatory interview which may result in
discipline. Inasmuch as a positive drug test following the inter-
view would result in discipline, I hold that Diaz was entitled to
such representation when a determination was made that rea-
sonable suspicion existed to require him to take a drug test.
Systems 99, above, was a case involving an employee who
arrived at work in a condition in which the manager “formed
the impression” that he was intoxicated. In the interview which
followed, the employee was told that management believed that
he was intoxicated and that he was being asked to take a sobrie-
ty test, and would be fired if he refused since the employer
would presume that he was intoxicated. The employer did not
believe that it could sustain a discharge simply on the testimony
of management that the worker appeared to be intoxicated. In
Systems 99, the judge described the meeting at which the em-
ployee was asked whether he would take the test as
“confrontative in character,” in which his refusal would be an
admission of intoxication.
Based on those facts, the judge, affirmed by the Board, found
that the employee’s Weingarten rights attached. “Where an
employee is advised by his employer—and therefore he ‘rea-
sonably believes’—that he may be disciplined if he refuses to
submit to a proposed set of tests, there appears to be no reason
for concluding that he should not be entitled to the services of a
representative before deciding what he will do.” 289 NLRB at
727
Similarly, in the instant case, Small possessed a reasonable
suspicion, based on Diaz’ appearance when he arrived at work,
that he was under the influence of drugs. As noted above, Op-
erations Manager Ron Reif, testified that, notwithstanding the
contract’s provision that the Employer has the right to immedi-
ately fire an employee who is impaired, the Respondent has no
right to discipline the worker without first giving him an oppor-
tunity to be tested—”the employee has the right to be drug
tested.” Similarly, here, the Respondent regarded a refusal to
take the test as an admission of drug use. I accordingly find that
Diaz’ Weingarten rights attached when he was ordered to take a
drug test.
Diaz had the right to request union representation if he rea-
sonably believed that he would be disciplined as a result of the
interview. Here, the purpose of the interview was to direct Diaz
to take a drug test. Diaz reasonably believed that he would be
disciplined if he failed the test—he signed a statement upon his
hire which acknowledged that employees who report to work
while under the influence of drugs would be disciplined, and
had been told by his union agent that if he failed a drug test
upon his return from layoff he would be fired.
The Respondent disputes that Diaz requested the presence of
his union representative. Diaz credibly testified that he repeat-
edly told Small and Wetherell that he would take the drug test

7 I am aware that Weingarten cautioned against the transformation
of an investigatory interview into an adversarial contest. 251 U.S. 263.
That question need not be reached here since a union agent was not
present.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
but wanted his union agent present. Small could not recall Diaz
saying that he would take the test but that he wanted his shop
steward present. Wetherell, who was present during Diaz’ re-
quests, did not testify. The fact that Small could not recall but
did not deny the repeated entreaties by Diaz to have his agent
present, and that Wetherell did not testify, leads me to conclude
that Diaz requested the presence of Union Agent Gonzalez.
As noted above, Diaz attempted to locate a union agent to
represent him but none were available. He spoke with Gonzalez
by phone. The Supreme Court noted the importance of the
physical presence of the union agent who “is present to assist
the employee, and may attempt to clarify the facts or suggest
other employees who may have knowledge of them.”
Weingarten, 251 U.S. at 260. To hold that a phone call with a
union agent satisfies an employee’s right to union representa-
tion would make that right meaningless. “If the employer grants
the request [for representation], the union representative is enti-
tled not only to attend the investigatory interview, but to pro-
vide active advice and assistance to the employee.” Washoe
Medical Center, 348 NLRB 361, 361 (2006).
When Diaz refused to take the drug test, the Employer may
have advised Diaz that it would not proceed with the interview
unless he was willing to speak to the managers unaccompanied
by his agent. Diaz could then have refused to participate in the
interview, thereby protecting his right to representation, but at
the same time relinquishing any benefit which might be derived
from the interview. The employer would then be free to act on
the basis of information obtained from other sources.
Weingarten, at 259.
There would have been no harm to the Employer in delaying
the interview until Diaz’ representative could have attended
since, according to Small, marijuana remains within the body
for 3 months.
The Request for Reinstatement
As part of the requested remedy, the General Counsel re-
quests that Diaz be reinstated. In Taracorp, Inc., 273 NLRB
221, 222–223 (1984), the Board held that where the only viola-
tion is the denial of an employee’s request for union representa-
tion pursuant to Weingarten, a make-whole remedy is inappro-
priate. The Board noted that Section 10(c) of the Act prohibits
such a remedy where the employee was discharged for cause.
In order to issue a make-whole remedy there must be a nexus
between the Weingarten violation and the reason for the dis-
charge.
When an employer takes disciplinary action against an em-
ployee for conduct that was the subject of the investigation, and
not for invoking his Weingarten rights, the disciplinary action
does not itself violate Section 8(a)(1), even when the employ-
ee’s Weingarten rights were violated. Taracorp, above at 222
(“we are unable to justify the imposition of a make-whole rem-
edy where an employer’s only violation is the denial of an em-
ployee’s request for representation at an investigatory inter-
view.”); L.A. Water Treatment, 263 NLRB 244, 246 (1982). An
employer, however, may violate the Act by disciplining the
employee if that punishment resulted from the employee invok-
ing his Weingarten rights. If it is found that the discipline re-
sulted from the assertion of Weingarten rights, the burden is
placed on the employer to prove that it would have taken the
disciplinary action in the absence of the employee invoking his
Weingarten rights. Safeway Stores, Inc., above; T. N. T. Red
Star Express, Inc., 299 NLRB 894, 895 fn. 6 (1990).
Although I have found that Diaz requested union representa-
tion at his interview on June 8, and that the Respondent unlaw-
fully denied that request, I find that the sole reason for his dis-
charge was his refusal to submit to a drug test. I cannot find
that he was discharged for refusing to submit to a drug test
without his union representative being present.
The General Counsel argues that his refusal to take the test
was premised upon the Respondent’s denial of his Weingarten
right to have union representation. That may be, but the ques-
tion is the reason for the discharge as set forth in Wright Line,
251 NLRB 1083, 1089 (1980). Applying the Wright Line test, I
find that Diaz’ discharge did not violate the Act. First, the Gen-
eral Counsel must establish that Diaz has engaged in protected
concerted activity and that animus against that conduct was a
motivating factor in the decision to discharge him. If that show-
ing is made, the violation is proven unless the Respondent
proves that it would have disciplined him even in the absence
of his protected conduct. Here, the General Counsel has not met
his initial burden.
I first find that Diaz engaged in protected concerted activity
by requesting union representation when he reasonably be-
lieved that discipline would result. However, it has not been
proven that the Respondent bore animus against such protected
activity in discharging him. Barnard College, 340 NLRB 934,
935–936 (2003).
All the documents prepared by the Respondent at the time of
his discharge recite that he was fired for refusing to take the
test. There is no evidence that he was discharged because he
refused to submit to the test without his union representative
being present. As credibly testified by Manager Reif, the Re-
spondent’s policy is that a refusal to take a drug test is consid-
ered a positive result in such a test. The purpose of the test is to
confirm or rebut the reasonable suspicion entertained by the
managers. If the employee refuses to take the test, the Re-
spondent reasonably concludes that the test would be positive.
Indeed, Diaz conceded that Small told him that he would be
suspended if he refused to take the test.
I find that Diaz’ refusal to take the test and the belief of the
Respondent’s managers, based on their observations that they
possessed reasonable suspicion that Diaz was under the influ-
ence of drugs, were the events which resulted in his termina-
tion, not his insistence on his Weingarten rights. I conclude that
the General Counsel has failed to establish a sufficient nexus
between the denial of Diaz’ Weingarten rights and his dis-
charge. I conclude that the Respondent did not violate Section
8(a)(1) of the Act by terminating Diaz. Systems 99; Taracorp,
above.
CONCLUSIONS OF LAW
1. The Respondent, Manhattan Beer Distributors LLC, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Laundry Distribution and Food Service Joint Board, affil-
iated with Service Employees International Union has been a
MANHATTAN BEER DISTRIBUTORS, LLC 15
labor organization within the meaning of Section 2(5) of the
Act.
3. By denying Joe Garcia Diaz his right to union representa-
tion at an investigatory interview in which he reasonably be-
lieved that discipline may result, and by directing him to imme-
diately submit to a drug test as part of its investigation into his
behavior, notwithstanding his request to obtain union represen-
tation prior to the test, the Respondent engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) of the Act.
4. The Respondent did not violate the Act by discharging
Diaz on June 8, because of his refusal to submit to a drug test
without first consulting with his union representative.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Manhattan Beer Distributors LLC, Bronx,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Denying Joe Garcia Diaz or any employee his or her
right to union representation at an investigatory interview in
which he reasonably believed that discipline may result, and by
directing him to immediately submit to a drug test as part of its
investigation into his behavior, notwithstanding his request to
obtain union representation prior to the test.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in the Bronx, New York, and its place of business in Wy-
andanch, New York, copies of the attached notice marked “Ap-
pendix.”9 Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed by the Re-

8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since June 8,
2013.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. May 15, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT deny your right to union representation at an
investigatory interview in which you reasonably believe that
discipline may result.
WE WILL NOT direct you to immediately submit to a sub-
stance abuse test as part of our investigation into your behavior,
notwithstanding your request to obtain union representation
prior to the test.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights guaranteed
by Section 7 of the Act.
MANHATTAN BEER LLC