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15-2845(L) 

Manhattan Beer Distributors LLC v. National Labor Relations Board 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 

THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER 

MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 16th day of 

November, two thousand sixteen. 

Present: 

 ROBERT A. KATZMANN, 

 Chief Judge, 

 RICHARD C. WESLEY, 

 SUSAN L. CARNEY, 

 Circuit Judges. 

________________________________________________ 

MANHATTAN BEER DISTRIBUTORS LLC, 

 

 Petitioner-Cross-Respondent, 

 v. Nos. 15-2845, 15-3099 

NATIONAL LABOR RELATIONS BOARD, 

 Respondent-Cross-Petitioner. 

________________________________________________ 

For Petitioner: ALLEN B. ROBERTS, Epstein Becker & Green, P.C., 

New York, NY. 
 

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For Respondent: MICHAEL ELLEMENT and Jill A. Griffin (on the brief), for 

Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, 

Deputy General Counsel, John H. Ferguson, Associate 

General Counsel, and Linda Dreeben, Deputy Associate 

General Counsel, National Labor Relations Board, 

Washington, D.C. 

 On petition for review and cross-application for enforcement of an order of the National 

Labor Relations Board. 

 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the petition for review is DENIED, and the cross-application for enforcement is 

GRANTED. 

 Petitioner Manhattan Beer Distributors LLC (“Manhattan Beer”) petitions for review of a 

final National Labor Relations Board (“Board”) Decision and Order issued on August 27, 2015. 

In this Decision and Order, the Board found that Manhattan Beer had violated Section 8(a)(1) of 

the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1), by denying former 

Manhattan Beer employee Joe Garcia Diaz the right to union representation at an investigatory 

interview that Diaz reasonably believed could result in discipline. The Board also found that 

Manhattan Beer violated the NLRA by discharging Diaz for refusing to take a drug test without 

having a union representative present, and accordingly, ordered the remedies of reinstatement 

and backpay. We assume the parties’ familiarity with the facts and procedural history of this 

case. 

 “We review the Board’s factual findings for whether they are supported by substantial 

evidence,” and “[w]e will enforce the Board’s order if its legal conclusions have a ‘reasonable 
 

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basis in law.’” NLRB v. Special Touch Home Care Servs., Inc., 708 F.3d 447, 453 (2d Cir. 2013) 

(quoting NLRB v. Windsor Castle Health Care Facilities, Inc., 13 F.3d 619, 623 (2d Cir. 1994)). 

Here, the Board reasonably construed the NLRA, in light of relevant judicial and administrative 

precedent, in determining that Diaz had the right to the physical presence of a union 

representative before consenting to take a drug test in the context of an investigation that he 

reasonably believed would result in discipline. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 

260, 262 (1975). Therefore, we uphold the Board’s conclusion that Manhattan Beer violated 

Section 8(a)(1) of the NLRA. 

 In addition, we uphold the Board’s award of the make-whole remedy of reinstatement 

and backpay. Such relief is available when there is “a sufficient nexus between the unfair labor 

practice committed (denial of representation at an investigatory interview) and the reason for the 

discharge.” Taracorp Indus., 273 N.L.R.B. 221, 223 (1984); see also 29 U.S.C. § 160(c). Here, 

the Board reasonably determined that Manhattan Beer’s discharge of Diaz resulted from Diaz’s 

assertion of his Weingarten rights. See Ralphs Grocery Co., 361 NLRB No. 9 (2014); Int’l 

Ladies’ Garment Workers’ Union v. Quality Mfg. Co., 420 U.S. 276, 280 (1975). In particular, 

Manhattan Beer’s documentation supporting Diaz’s termination stated that Diaz was terminated 

because he “[r]efused to go for drug testing under the reasonable suspicion of substance abuse.” 

J.A. 264. Consequently, we uphold the Board’s conclusion that Diaz was entitled to 

reinstatement and backpay. 
 

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 We have considered all of the parties’ remaining arguments and find in them no basis for 

altering our decision. Accordingly, for the foregoing reasons, Manhattan Beer’s petition for 

review is DENIED, and the Board’s cross-application for enforcement is GRANTED. 

 FOR THE COURT: 

 CATHERINE O’HAGAN WOLFE, CLERK