Reference no: EM131281168

Cindy Adams worked as a salesperson at the nonunion Wal-Mart store in Wasilla, Alaska. On March 10, 2001, while walking to the employees' break room for lunch, she met Ken Stanhope in the hallway, who asked about her father, a Wal-Mart employee out on workers' compensation. She responded, and they continued to speak about her father. Stanhope then changed the subject, asking what she thought about the union, and she replied she did not want a union. Stanhope replied that her father was prounion and urged her to check out a prounion Internet site.

According to a statement written by Cindy Adams, she asserted that Stanhope said management were "all f-ken pricks and they would f-ken lie to your face without even batting an eye. And so we needed a union to stop management and make it safe for associates." Adams said that as Stanhope talked, he moved closer to her, and she became uncomfortable and twice moved back from him and ended the conversation, saying she was missing out on her lunch. While the ALJ did not believe Cindy Adams' testimony to be reliable or truthful, management acted upon her written version of events, and an investigation was conducted by comanagers Bruce Manderson and Marlene Munsell.

On March 16, the two comanagers conducted a meeting with Stanhope, investigating the allegations of Cindy Adams against him. Stanhope immediately requested the presence of his own witness, which was denied, and he was ordered to sit and continue with the interview, and he was sent home while the managers continued the investigation.

On March 17, after Stanhope reported for work, accompanied by an assistant manager and with, at the manager's request, a police officer standing nearby, Manderson approached Stanhope at the food court and asked him to follow him to his office. Stanhope replied that he would not go anywhere unless he had a witness. The request was denied, and thereafter, he was terminated for creating a hostile work environment and using foul language. Manderson testified that Stanhope's refusal to cooperate in the investigation without a witness present was a factor in the decision to discharge him. Does the "Weingarten right" apply in this case? Did Wal-Mart commit a Section 8(a)(1) unfair labor practice by denying Stanhope's request for a witness on March 16, 2001, and continuing the interview without the presence of his requested witness?

Did it violate Section 8(a)(1) by terminating Stanhope on March 17 after he refused to attend a subsequent investigatory interview without the presence of a witness? Decide.

[See the ALJ's decision to the Board's Wal-Mart Stores, Inc., and UFCWIU, Local 343 decision, 343 NLRB No. 127.]SSS