Login | March 25, 2019

Union rep missing from meeting, employer probe leads to firing

Law Bulletin columnist

Published: August 9, 2018

Jason Thomas worked as a cashier at a Fred Meyer superstore in Portland, Ore., and he was represented by the United Food and Commercial Workers Union Local 555.

One March afternoon in 2017, two Meyer customers and two co-workers reported to store management that they had smelled alcohol on Thomas’ breath while he was working. Management felt obliged to interview and screen Thomas for alcohol before the conclusion of his shift.

Meyer personnel led Thomas to a secured office within the store, telling Thomas, falsely, that management needed his help to identify a nonemployee allegedly harassing the self-checkout attendants.

Thomas, accordingly, had no reason to believe that Meyer intended to investigate whether he was under the influence of alcohol while on the job and so he did not initially request union representation for the meeting.

Sean Findon, the store’s new assistant manager, informed Thomas in the meeting that someone had smelled alcohol on his breath.

Findon asked Thomas if he had been drinking; Thomas replied no.

Thomas, now realizing that he was under investigation and could be disciplined, presented Findon with a printed card from his union that stated, “I request that my union representative or shop steward be present at this meeting. Without representation, I choose not to answer any questions.”

Findon, who was leafing through the company’s policy manual in search of its drug- and alcohol-testing protocol, ignored Thomas’ request printed on his union card, pushing it aside.

Thomas called the union at least twice on his cellphone but only connected to voicemail. Findon, after locating Meyer’s drug- and alcohol-screening protocol in the manual, announced that Thomas could not delay the interview any further if he could not secure union representation. Thomas again called the union, without success.

Findon exited the office and contacted a Meyer human resources manager who advised Findon that he did not need to wait for a union representative under the circumstances.

Thomas, meanwhile, kept calling the union without response, but inexplicably never called the emergency number that was printed on the union card in red ink.

Findon returned to the office and interrogated Thomas. Thomas, believing that his answers might save his job right there, answered all of Findon’s questions.

Directly, Thomas denied drinking on the job and claimed to have last drunk alcohol at 2 a.m. — hours before his shift started. Findon then informed Thomas that Meyer was going to send Thomas to a laboratory for a drug and alcohol test.

Thomas refused to take the test without union representation. Findon immediately suspended Thomas pending an investigation. Several days later, Meyer fired him for refusing the drug and alcohol test.

Thomas and Local 555 turned to the National Labor Relations Board and filed an unfair labor practice charge against Meyer for Thomas’ firing. Following a hearing in July, an NLRB administrative law judge found for the company and against Thomas. Fred Meyer Stores Inc., Case 19-CA-206136 (July 2, 2018).

The ALJ expressly found that Meyer did not violate Thomas’ so-called Weingarten rights, which allow a union-represented employee on request to have a union steward or representative present for any investigatory interview which the employee reasonably believes might result in discipline. NLRB v. J. Weingarten, 420 U.S. 251 (1975).

He wrote first that while Findon did not grant Thomas’ requests for union representation at the drug and alcohol interview or test, Findon never actually denied them either.

Instead, Findon allowed Thomas to call his union multiple times and did not in any way discourage Thomas from making the calls.

Second, the ALJ found that Meyer afforded Thomas some 18 minutes to contact a union representative from the time it informed Thomas of the real reason for the interview to the time the interview commenced in earnest.

Under the exigent circumstances, the ALJ reasoned, this amount of time was sufficient.

Third, the ALJ scored Thomas’ failure to call the emergency number that was on his card. And, the ALJ noted, there was no evidence that Thomas needed Findon’s help in reaching a union representative or that Findon would not have waited for a union representative to arrive before beginning the interrogation.

Given these facts, many of which were essentially undisputed, the ALJ dismissed the complaint against Meyer.

An appeal is expected.