Wednesday, March 23, 2011

NLRB Holds Employee Does Not Have a Right to a Particular Union Rep During Investigation

An employee, Odell Clarke, was asked to participate in an employer's investigation of sexual harassment. Clarke, a union member, refused to provide a statement to the Respondent’s district manager, Melissa Buonadonna, during an interview because the shop steward who normally sits in on these types of investigations requested that Clarke speak with a particular union representative first. The particular union rep was not available for a few days. The employer insisted upon a statement and when Clarke continued to refuse, he was suspended for insubordination and for not providing a statement. Clarke then filed a complaint with the National Labor Relations Board (NLRB) alleging a violation of Section 8(a)(1) of the NLRA.

Section 8(a)(1) of the Act provides a union-represented employee with the right to request the active assistance of a union representative at an investigatory interview—an interview that the employee reasonably believes may result in discipline. See NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). The ALJ found and the Board affirmed that "...inasmuch as Dunne was present to represent Clarke, Buonadonna was not required to defer the interview until the next Monday, when Castelli would be available. However, the judge nevertheless found that the Respondent violated Section 8(a)(1) by denying Clarke’s request to telephone Castelli, then insisting on interviewing Clarke and suspending him for his refusal to submit to the interview." The Board found that the ALJ proceeded to find a violation of the Act on an alternate and unlitigated theory, thereby denying the Respondent due process, reversed that finding and dismissed the complaint in its entirety.

The case is Buonadonna Shoprite, LLC and United Food and Commercial Workers Union, Local 1500. Case 29–CA–29720

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