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14 William Mitchell Law Review 277 (1988)


Many private employers seem to be busy deciding whether and how to test employees for drug use. Presumably most of these decisions are made by management acting alone. However, in unionized workplaces—one out of five private sector employees are represented by unions—federal labor law prescribes a different method. That method features collective bargaining by unions and management to set the rules, the use of a private third-party neutral to resolve disputes which arise under those rules (arbitration), and relatively little involvement by the government (the National Labor Relations Board, legislatures, and the courts). This system that labor law prescribes for dealing with the problem of drug testing is complex. Part I of this article describes that system, with a focus on the prominence of private standards and methods compared to the minor impact of public law and processes. Part II comments on this system, addressing two related questions: First, is the labor law system a wise one for resolving the issue of drug testing in unionized workplaces? The short answer is yes, although the role of public law should be increased. Second, are there lessons for the non-unionized sector? The short answer is that some features of the system used in unionized settings could be used in non-unionized settings, but only with modifications. Throughout, the article focuses on the issue of whether to test employees for drug use, although it touches on related issues, such as discipline for drug use, as well.