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Drug Testing in Unionized Workplaces

If you work in a unionized workplace, your rights regarding drug testing are different from those of non-union workers in fundamental ways. Drug testing is a mandatory subject of bargaining under the National Labor Relations Act, meaning your employer cannot unilaterally implement testing for unionized workers. And under "just cause" provisions in most collective bargaining agreements, terminations for positive tests can be grieved and sent to arbitration.

Drug Testing as a Mandatory Subject of Bargaining

The National Labor Relations Board (NLRB) issued Memorandum GC87-5 in 1987, establishing that drug testing of current employees is a mandatory subject of bargaining under the National Labor Relations Act. This means:

  • Employers cannot unilaterally adopt drug testing programs for unionized workers
  • Existing programs cannot be unilaterally changed
  • Bargaining is required before implementation
  • Subjects of bargaining include who is tested, what triggers testing, what cutoffs are used, and what consequences follow

This is different from new applicants. Pre-employment testing of job applicants is generally not a mandatory subject of bargaining because applicants are not yet bargaining unit members. But once hired, drug testing of current employees requires negotiation.

Just Cause and Grievance Procedures

Most collective bargaining agreements include "just cause" provisions requiring that termination be supported by adequate evidence and proportionate to the offense. A drug test failure can be grieved on multiple grounds:

  • The test result is wrong (chain of custody, lab error, etc.)
  • The penalty is disproportionate (e.g., termination for a first offense when the CBA suggests progressive discipline)
  • The testing procedure violated the CBA (e.g., random testing of an employee not subject to random testing under the CBA)
  • Mitigating circumstances (medical use, accommodation request, length of service)
  • Disparate treatment (other employees with similar offenses received lesser penalties)
  • Procedural violations (notice, opportunity to respond, union representation)

The Daugherty Seven Tests

Many arbitrators apply the Daugherty Seven Tests (from the 1966 arbitration Enterprise Wire Co. by Arbitrator Carroll Daugherty) to evaluate just cause:

  1. Notice — Was the employee given forewarning of the consequences of the conduct?
  2. Reasonable rule — Was the rule reasonably related to legitimate business interests?
  3. Investigation — Did management conduct a fair investigation before discipline?
  4. Fair investigation — Was the investigation conducted objectively?
  5. Proof — Did the investigation produce substantial evidence?
  6. Equal treatment — Has the rule been applied even-handedly?
  7. Penalty — Was the penalty reasonably related to the seriousness of the offense and the employee's record?

An arbitrator who finds that the employer failed any of these tests may overturn the discipline or reduce the penalty.

Progressive Discipline

Many CBAs require progressive discipline — increasing severity of consequences for repeat offenses rather than termination for a first offense. A first positive cannabis test under a progressive discipline CBA might result in:

  • Verbal warning
  • Written warning
  • Suspension
  • Treatment requirement
  • Termination only after repeated violations

Even DOT-regulated workers retain some progressive discipline protection through union grievance procedures, though federal rules require return-to-duty processes regardless.

Union Representation Rights

Under NLRB v. Weingarten (1975), union members have the right to union representation at any meeting that may result in discipline. This means:

  • You can request a union representative before an MRO interview
  • You can request representation at any meeting with HR or management about a positive test
  • You can request representation during disciplinary hearings
  • Your employer may not punish you for asserting these rights

Always request your union representative as soon as you know there is a problem.

Practical Steps for Union Members

  1. Contact your union steward immediately when you receive any drug test notification
  2. Get a copy of your CBA and review the drug testing and discipline provisions
  3. Request union representation for any meetings about the test
  4. File a grievance promptly — CBAs typically have short filing deadlines (5–30 days)
  5. Document everything — meetings, conversations, deadlines, decisions
  6. Cooperate with the union investigation while being mindful of what you say
  7. Pursue all available challenges — split specimen, chain of custody, MRO process, just cause grievance

What Unions Cannot Do

Even strong union representation has limits:

  • Unions cannot override federal DOT testing requirements
  • Unions cannot override federal contractor obligations
  • Unions cannot force employers to retain workers in safety-sensitive positions after positive tests
  • Unions cannot guarantee outcomes — arbitration results vary
  • Union representation does not eliminate the original positive test result

Union representation increases your chances and provides procedural protection, but it does not change the underlying federal rules.

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