Labor Cases

Although the NLRB was created to deal with relations between private sector businesses and labor, many of their decisions apply to collective bargaining agreements between police unions and their departments. The NATIONAL LABOR RELATIONS ACT and other useful labor information can be found at:

NLRB

Click on the case titles to link to the full case decision.

Garrity v. New Jersey, (Garrity Rights) 385 U.S. 493 (1967)- The court ruled in this case that public employees could not be compelled by threat of disciplinary action to violate the principles of compulsory self-incrimination (Fifth Amendment Rights). If an employer is conducting an internal investigation of wrongdoing, it can compel the employee as a term of employment to answer all the questions. The employee has the right not have any forced incriminating  statements used against him or her in a criminal proceeding. It is the employee's responsibility, however, to assert his or her Garrity rights. These rights can and should be asserted if the investigation possibly does involve criminal misconduct.

If the employee asserts the Garrity rights, the employer must do the following:

altGive a direct order to the employee to answer the question;

alt The question must be specific and be directly and narrowly related to the employee’s duty or fitness for duty;

alt Advise the employee that the answers will not and cannot be used against him/her in a criminal proceeding, nor the fruits of those proceedings; and

alt Allow union representation if the employee also asserts their Weingarten Rights.

*Important note*

Although the Garrity rights prevent incriminating statements in a criminal proceeding, this is not absolute. The statements can be used to rebut false statements made by the person in a criminal case. The statements can also be used by Grand Juries and in civil proceedings.

Kastigar v. US, 406 U. S. 441 (1972)-The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity, as provided by 18 U.S.C. § 6002, from use of the compelled testimony and evidence derived therefrom in subsequent criminal proceedings, as such immunity from use and derivative use is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege. Transactional immunity would afford broader protection than the Fifth Amendment privilege, and is not constitutionally required. In a subsequent criminal prosecution, the prosecution has the burden of proving affirmatively that evidence proposed to be used is derived from a legitimate source wholly independent of the compelled testimony. The case is associated to Garrity in that criminal proceedings against a public employee cannot use an employee's statement that was compelled through the threat of termination.

NLRB v. Weingarten, Inc., (Weingarten rights) 420 U.S. 251 (1975)-"...the right of union representation at investigatory interviews which the employee reasonably believes may result in disciplinary action against him." The rep can:

International Ladies' Garment Workers' Union v. Quality MFG.Co., 420 U.S. 276 (1975)-A union representative has the absolute right to request to be present during an employee's interview on disciplinary matters. The representative cannot be disciplined for insisting on this right.

NLRB v. Coca Cola Bottling Co., 94 LRM 1200 (1977)(No Link)-Medical examinations are not protected under Weingarten unless the employee is being interviewed during the exam.

NLRB v. Baton Rouge Water Works, Inc., 103 LRRM 1056 (1979)(No Link)-When an employer has a meeting with an employee simply to tell him what discipline is being imposed, Weingarten does not guarantee union representation.

NLRB v. Cook Paint & Varnish Co., 102 LRRM 1680 (1979)(No Link)-The employer cannot compel any employee to participate in post-disciplinary interviews. The only reason for doing a post-disciplinary interview is to aid the employer in arbitration or to find out union strategies.

NLRB v. Westinghouse Electric Corp., 101 LRM 1497 (1979)(No Link)-If a collective bargaining agreement or past practice allows union representation when an employee receives discipline, the employer cannot disregard it. To do so is grievable and may also be an unfair labor practice.

NLRB v. Southwestern Bell Telephone, 105 LRRM 1246 (1980)(No Link)-The union rep has the right to speak and advocate for an employee during an investigative interview.

NLRB v. Coalgate Palmolive Co., 107 LRRM 1486 (1981)(No Link)-A union rep has the right to walk into an interview and demand to be present. If the employee being interviewed remains silent or does not object, the employee has effectively requested the rep's presence.

NLRB v. Consolidated Casinos Corp., 113 LRRM 1081 (1983)(No Link)-Weingarten applies to polygraph examinations, including pre and post examination interviews and the discussion of the test results.

Cleveland Board of Education v. Loudermill, 470 US 532 (1985)-Loudermill Hearing: Once a legislature confers property interests in public employment,” the Due Process Clause provides that certain substantive rights -- life, liberty, and property -- cannot be deprived except pursuant to constitutionally adequate procedures. “ The employee is entitled to receive notice and to have a hearing where the employee has the opportunity to respond.

O'Connor v. Ortega, 480 US 709 (1987)-“In determining the appropriate standard for a search conducted by a public employer in areas in which an employee has a reasonable expectation of privacy, what is a reasonable search depends on the context within which the search takes place, and requires balancing the employee's legitimate expectation of privacy against the government's need for supervision, control, and the efficient operation of the workplace. Requiring an employer to obtain a warrant whenever the employer wishes to enter an employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unreasonable. Moreover, requiring a probable cause standard for searches of the type at issue here would impose intolerable burdens on public employers. Their intrusions on the constitutionally protected privacy interests of government employees for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this standard, both the inception and the scope of the intrusion must be reasonable.”

If an employer has a legitimate reason, the employee’s, desk, file cabinets, vehicle, duty bags, etc. that are within the work environment can be searched for work product and evidence of work misconduct.

NLRB v. US Postal Service, 130 LRRM 1184 (1988)(No Link)-The union rep has the right to object to vague, misleading or confusing questions.

NLRB v. New Jersey Bell Telephone Co., 141 LRRM 1020 (1992)(No Link)-The union rep has the right to object to abusive, misleading, badgering, confusing, or harassing questions.

City of Ontario v. Quon, 130 S.Ct. 2619 No. 08–1332 (2010)-Quon was on the SWAT team and was issued a department pager for call outs. The pagers had a limit to the text characters sent and received each month. Quon routinely exceeded the limit as did several other officers. The officers paid for the overage costs. The Chief noticed that the pager bills showed regular over charges. He ordered an audit of the pager usage by the department to see if personal use was causing the overages or if the plan was inadequate to meet the needs of the department. The department also had a policy that clearly warned the officers that they had no expectation of privacy in the use of the pagers. The audit revealed that Quon sent several sexually explicit texts while on duty. He was disciplined. Quon and other officers sued claiming the department search of the text messages violated their Fourth Amendment rights and the federal Stored Communications Act. The USSC ruled that the search of the pagers served a legitimate work related purpose and was not excessive in scope, therefore, allowable.

Liverman v. City of Petersburg, No. 15-2207 (4th Cir. 2016)-Officers were discussing on Facebook about problems they were observing in their department. They discussed their concerns about promoting "green" officers to supervisory positions, and placing rookies in special units, and as FTO's and instructors when they lack the knowledge and experience to be in those positions. The Chief found that the officers were in violation of department policy. Each were given reprimands and placed on 6 months probation. They sued. The court held that the officers were discussing matters of public importance and their speech was protected under the First Amendment.