they were here the first case manhattan beer please the court my name is alan roberts i represent and that near distributors the petition across respondent in this case at its core this case is about what happened on june eighth two thousand and thirteen when a manhattan beer employee killed garcia diaz reported for work reeking from the smell of marijuana and with bloodshot and glassy eyes in violation of manhattan beers policy and its collective bargaining agreement with the union representing mr diaz two separate legal points flow from those undisputed facts first the so called weingartner rights for representation when it is requested at an investigatory interview that could lead to discipline do not apply to the drug test the men hatten beer routinely offered to diaz as an opportunity for him to show that the reasonable suspicion of the managers who observed him was wrong the second legal point that flows from this is that by statute the national labor relations board has no authority to it you you you say you concede that employee has a right to representation before agreeing to a drug task yes that's that is stated in the board's case law and particularly system ninety nine weingarten rights or triggered by an employee anticipating an investigatory interview that could lead to his or her discipline saying i want representation in this investigat interview that has a confrontational aspect and interactive aspect so what we have with mr diaz is several completed acts he appeared at minton beer reeking for marijuana with bloodshot and glassy eyes and that was observed there was discussion between mr diaz and his and two managers of the facility one of them said then that the manhattan beer manager must be talking about marijuana and the way it smelled on him that was the us his testimony through all of that time there is no occasion for a  didn't mr wetherell suggest that diaz would drive himself to the drug testing center and they would finish talking there and they were having an interchange that could potentially lead to discipline or mr diaz to make a concession of the reason for his appearance isn't that right the record shows that your honor but there is no indication about what the substance of the discussion would be whether there would be any questions the  record was never developed in that respect the point is there was there is a verbal interchange that is like just again being directed to go to a particular center and p and top will except for the fact that the reasonable suspicion already was established before that occasion and the test that was offered to mr diaz was it an opportunity that man made that would be or always extends to its employees who are going to be best one that along yes i take it it's a long yes it is it is a substantial evidence question yes and cannot the board reasonably and not arbitrarily look at those reports and make a conclusion that he right to fire an employee on reasonable suspicion alone the it's in the collective bargaining agreement section article thirty nine and it exists in the practice of minette and here where it has fired other people reasonably suspected of drug or alcohol use who did not take a drug or alcohol test when collective bargaining agreement alone as i read it provided that  employee who is impaired by illegal drugs when reporting for work is subject to immediately disciplinary action but that's different a little bit i think from reasonable suspicion mean that so they the test would have been either confirmatory or  good morning your honour's my clone and on behalf of the board seeking full enforcement of its order i have course want to turn to the court's questions about whether or not manhattan beer could fire mr diaz pier where you do that i'd like to just  ask your help and clarifying when the wind born violation occurred so the board seems to have held that important that the u have been helpful in observing the testing protocol itself and i think what it means by that is here in this was testified to in the record had a procedure when i was going to send somebody to get an investigatory drug test that procedure was the manager drove the individual to the drug test with the chain of custody paperwork and several copies of that chain of custody paperwork the individual was then escorted into the testing location and the manager then waited in the waiting room gave the chain of custody paperwork to the person who's going to be taking this specimen waited for it to be taken and then retrieved the keep train of custody paperwork and then brought it back to manhattan drug a drug test that's the initial source of the vial and that was that's the source of your violation that's being source i mean i think the board does say that he's entitled to a representative while he's deciding and also a representative could have been helpful i would say what the board says is the representative could have been helpful there now if if you're under question is a hypothetical that if this was only at the testing location and there's been no questioning there's no indication that there's going to be further questioning and all the individual has to do is submit to drug testing i think that's a very different case than what we have here so let me just if i could just outline a source of my confusion if so and at the beginning  representation before consenting to take the test and that that seems of concern representation a form before consenting to a test but then later the board clearly says that the diaz's rights are violated because he was denied the right to have a representative help him monitor the test during the test is it one or the other or both i think it's both your honor i think he has a right because there's there's going to always be protocols and procedures for the taking of the specimen and for the lead up to the taking of the specimen and individual has the right to their union representative to observe that process as much as they have the right to the universe the senate of observing the actual physical taking of the specimen but there's going to be protocols and procedures that happened before during and after the task that it particular on this record management has a representative in the waiting room that's observing those protocols so it's not too much to ask for the union to also be there as well that's what weingarten envisions a check on management but why wasn't enough for diaz to make his two phone calls one of which resulted in a conversation with mr gonzales advising him about whether to go forward and not just simply have an obligation to wait an indefinite period of time until the union makes someone available certainly not an indefinite period of time your honor and how long do they have to wait well with the board says a reasonable amount of time is the words that it uses and i certainly understand the court's concern that that could become a difficult question it's not a difficult question on this record this record was it was about two hours period of time between when mr diaz showed up to work and when they ordered him and gave him an ultimatum that he must take the task immediately without poking mr gonzales and there was no offer you know wait wait another hour and we'll get someone over the a company mr diaz share your honor i think that's a fair point but i think it's important to first remember that mr gonzalez was the second call because mr gonzales was the union agent who was on vacation that day mr henry was the individual who is supposed to be at  workplace and that's who the first call is to i agree but that's me that reflects the union of the employers openness to having someone present or to have a consultation and no hostility to the exercise of one point right well because it was that wrong because i think th individual still must be given a reason why opportunity to get the union representative that they're seeking to the location to advise them is this not reasonable you need to phone calls and had conversation hasten to say that mr gonzalez gave much advice to mr diaz i mean it was really i'm on vacation i cannot provide you with a copy of the collective bargaining agreement which is what you're requesting and if you don't want to take the test then you should you know the vice was bad doesn't mean it was in the face in that kind of a consultation and again have difficulty seeing the employer didn't take the position that you can't have anyone you can't talk with anyone we're shipping you off right now well i would respectfully disagree on that point i mean recall when he first says i want my union representative here the response is this is a company issue now you're not entitled to a union rep mr diaz that goes out on his own outside and calls his union representative i don't know if there was much interaction between him and the employer but i don't see anything in the record where the employer said oh yeah of course we'll wait for the union representative for a reasonable amount of time they say you have to take this now well well as we've said though there is some ambiguity in law about exactly who needs to be present for what the physical presence at the test works right you sure your honor but i think this record the board is granted substantial deference to look at the facts of this  different i mean first of all the individual in my heart he never suggested that he was actually willing to take the psychological evaluation that he was being ordered to take mr diaz repeatedly states that he is willing to take the drug test so long as his representation rights are respected i think that is very different because you have an individual who's willing to comply with management they just want their statutory rights protected so i think that's great that's a first difference with the hari i think also  the facts were that the individual did have an opportunity to have witnesses observe him that is after the employer orders him to take the evaluation and the individual goes around and ask people you know do you agree with management that i'm acting funny today do you agree that i need a medical evaluation and so that individual has an opportunity to get witnesses to observe him which is actually a core fundamental purpose of weingarten to have a witness for a later grievance hearing that has observed your conduct on that day in the last difference i would understand the differences you're making here but isn't this something that would make sense why when this be something that we should just remain and for further clarification the board can depart from its precedence in any way their wishes to within within reason certainly but here there is this this may be the ones that the board would would choose to adopt but isn't it doesn't make more sense for the for the board to make those kinds of distinctions and initially rather than for us as a court of  we're going to be deferential to to the board and consider what the board says should we hear more from the board i would disagree that every man is necessary and i would i would state that the main reason is predates the twenty five years of president requiring a weingarten representative at a drug test when it's requested he wasn't even involved in a drug test it was trying to trying to figure out if this person had some some psychological issues and i think a drug test might have been part of that but really it was a psychological evaluation that they were asking him to do so i think the more point president is safeway system ninety nine and groceries which are twenty five years of unbroken history post dating hari that require a representative before a drug test and so i think that's more relevant precedents and for that reason i don't think that agreement would be necessary in this case to consider m y i do also the board doesn't examined system ninety nine either does it i think it references it i mean there was some discussion in rails grocery and of course the board in this case is relying very heavily  on reasonable suspicion alone but i also want to respect for the court's time so if ok i do think it's critical to point out that on this record manhattan beer did not discharge employees for reasonable suspicion of drug use and i think it's critical if you look at appendix that and that that the search an is based on the paperwork that they filled out the paper that they filled out and the testimony of the managing of the director of operations and i think it's  telling if you look at appendix one forty eight the director of operations is asked if they are allowed to discharge an employee without a confirmatory drug test just on reasonable suspicion alone and he says no and he asked even a hypothetical in the hypothetical is very telling what if somebody quote came to work clearly intoxicated stumbling around slurring and quoting and then he's asked for their quote breathing smelling of alcohol unable to function any machinery and quote with that person still be entitled to a drug test or could you discharge that person for reasonable suspicion of drug use alone and the answer is that person would be entitled to a drug test because quote we would not prejudge or come to a conclusion the standard is the individual has a right to be tested period and we would not have our managers in a position to prejudge or come to a conclusion look at the c d a itself it says and he employee who is impaired by illegal drugs is subject to immediately does look at the contract as interpreted by the parties in fact may be a violation of the national labor relations act itself for a company to deviate from past practices as the contract has been interpreted by the parties so it's made here it is just not credible for men and beer to suggest that it's managers would discharge somebody for reasonable suspicion alone and so their further argument that this drug test was just exculpatory and that it was for mr diaz's benefit is simply not true on this record diaz showing up for work we can have marijuana with bloody you know bloodshot eyes and so on here i mean i think you know i think it is contested for mr diaz perspective that he had used any illegal drugs that day so i would start there but i would also say all the testimony about mr diaz his appearance and his odor come from management witnesses and the whole purpose of weingarten is the heavy union representative on the other side who can also observe the individual's appearance and testify at a later hearing like this one or grievance hearing as to whether or not the individual actually appeared this is they are disputing the record by mr diaz about whether he in fact weak to marijuana and had bloodshot eyes  reclassify we even agreed to have a picture taken we wouldn't be here yeah absolutely and i think it also you know the inner representatives advice to mr diaz might have been you want to take the drug test because you do you know it is not known what the advice of being represented would have been were a representative during the drug test well he says i won't take the drug test without my union representative and i would agree i think i think the tenor of your question  maybe is it unclear what when in the process mr de is wanted as you know represented to be present i think i think that i think it's a little unclear but i think he was entitled to it certainly when he asked for it which is when they're ordering him to take a drug test and he has to make up his mind whether or not he wants to take the drug test and that's i mean that's the that's that then you get into the hard problem you're saying that he was asking for a drug test that he was asking for a representative during he had a representative during a drug test itself that's that's that's different but you're saying that's unclear no i think he's asking for the representative while he's making up his mind whether or not to take the drug test and then would he have also asked his you represented to accompany him to the drug test i'm not sure your honor but the point is he was robbed of any opportunity to talk to his union representative the dissenting gauge on whether the conversation with gonzales satisfy his initial request and the mr diaz decided that he would not take a drug test without his union representative present that's a decision he was privileged to make neither manhattan beers policy nor board law requires that when hatton beer absolutely make available to an employee the drug test and investigatory interview under weingarten assuming this drug test is an investigatory interview is something that may not proceed because an employee makes any election and if the interview does not continue the company is privileged to make a decision on information available to it as this record shows it did on the only two times that it occurred the employee may waive and when diaz said it i will not go forward with this drug test unless my union representative is present that was an occasional under weingarten c four manhattan beer to say we will then proceed on the information that's available to us but the problem is joint appendix three thirteen small i'll quote small in our report i mean i don't understand what it why would she say or he think mr small was the person who observed the reasonable suspicion heat and when he and mr weather all spoke to mr diaz and said look if you go in past this you can stick your nose up at us and the next page then we're small whether olympian's all is completed terminations employment memorandum and states that he was terminated quote because he refused to go to a drug screen test and a quote you think it's that you think it's not reasonable for the board to conclude that he was germinated for reviews and to take the test in the context of the reasonable suspicion apparently that's how small