Case: Wal-Mart Stores Inc. v. Food & Commercial Workers Union
Citation: 176 LRRM 1145 (NLRB 2004)
Summary: A nonunion employee requested that a witness be present during an investigatory interview that could lead to discipline. Wal-Mart refused the employee’s request for a witness and continued the investigation. The employee was terminated for creating a hostile work environment and using foul language.
The NLRB found that an employee in a nonunion workplace does not have a statutory right to the presence of a witness/co-worker at an investigatory interview and that an employer in a nonunion workplace has no obligation to consent to such a request.
However, the Board noted that an employee in a nonunion workplace does retain the right to request a witness and cannot be disciplined for making such a request.
Action Item: The NLRB recently overturned its own past decision that had required nonunion employers to allow an employee at an investigatory interview to insist on and have the presence of a co-worker. However, as can be seen by this new Board decision, the NLRB still says that an employee at a nonunion company still retains at least the right to ask for the presence of the co-worker at an investigatory interview, and, therefore, his employer cannot discipline or terminate him for making the request (although the employer is free to decline that request). We will have to wait and see what the courts say about the Board’s new rule, but, for now, employers should be aware that the Board says that the employee’s request is still protected by the Labor Act. Note, however, that the Board’s rule does not apply if the employer, as opposed to conducting an investigatory interview, is simply informing the employee of discipline.
Case of Interest:
The following is a case of interest, dealing with privacy issues and the right to free association, although only applicable in the public sector -
SIXTH CIRCUIT RULES THAT SCHOOL DID NOT VIOLATE
DUE PROCESS RIGHTS WHEN TENURE WAS DENIED TO TEACHER HAVING RELATIONSHIP WITH FORMER STUDENT
Flaskamp v. Dearborn Public Schools, U.S. Court of Appeals, 6th Circuit, 10/05/04
http://caselaw.lp.findlaw.com/data2/circs/6th/022435p.pdf
The plaintiff taught P.E. in the public schools of Dearborn, Michigan. She was denied tenure after the board of education learned that she had an intimate relationship with a former student within nine months after his graduation. In making its decision, the board relied in part on information indicating that the relationship had begun prior to graduation and in part on the fact that the plaintiff had not been candid in addressing the school system’s concerns about the relationship. The plaintiff was given a hearing on the matter, with an attorney present, prior to the board’s final decision. In her lawsuit, the plaintiff claimed that she was denied her right to free association, privacy, and to be free of arbitrary state action in violation of the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment to the defendants on each claim, and the court of appeals affirmed.
While acknowledging that a right to intimate association exists, the court held that the board’s decision did not “directly and substantially” affect the plaintiff’s rights, since she was still free to associate with adults other than students. The court noted that the board’s finding that the plaintiff had not been truthful about the issue provided a legitimate reason for the board’s decision in and of itself, regardless of whether or not the relationship actually began before graduation. The court found that the plaintiff’s right to privacy likewise had not been violated – the board did not publicly disseminate the information obtained, which was itself quite limited, and it had a legitimate reason for its inquiry about the relationship.
As a practical matter, the court of appeals stated that it would be appropriate for schools to have a policy prohibiting sexual relationships between teachers and former students within a year or two after graduation, since such relationships develop over time. Such a policy might prevent senior students from being seen as prospects eligible for dating upon graduation; it might prevent interference with education of other family members who may still be in school; and it might curb sexual harassment liability arising from claims that a policy against such relationships was not adequately enforced.