Although unreported, Manhatten Beer v. NLRB, ____F.3d____(2d Cir. Nov. 16, 2016), may turn out to be a significant decision concerning Weingarten rights. With very little analysis, the court stated:
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.
Mitchell H. Rubinstein