The NLRB has issued a decision allowing new remedies — reinstatement and back pay (“make-whole relief”) — for certain violations of an employee’s “Weingarten” rights. E.I. Dupont de Nemours & United Steel Workers Local 6992, 362 NLRB No. 98 (May 29, 2015).

In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the U.S. Supreme Court held a bargaining unit employee is entitled to union representation, on request, during an investigatory interview the employee reasonably believes might result in disciplinary action. When an employee requests representation, the employer may deny the request and conduct its investigation without interviewing the employee. However, if the employer proceeds with the interview, it must allow a union representative to represent the employee during the interview.

In Dupont, employee Smith was involved in a workplace accident in May, 2012. Smith was initially questioned by his supervisor and the company’s medical personnel about the accident. Smith did not request union representation during these interviews. When Smith was later called into an investigatory interview, he requested a union representative. His request was denied, but the company nevertheless questioned him about the accident. Company managers interviewed Smith several days later, again without union representation, and in a third interview with a union representative present. Dupont ultimately terminated his employment for providing false or incomplete information during the investigation based on his inconsistent explanation of the accident.

The Board’s Administrative Law Judge decided the employer unlawfully had denied Smith’s request for union representation, but it denied his request to be reinstated with back pay. The ALJ reasoned that Smith had not been discharged for asserting his Weingarten rights and his discharge was for cause (dishonesty in giving inconsistent responses).

Although the three-member NLRB panel reviewing the ALJ’s decision agreed the employer unlawfully refused Smith’s request for union representation while it went ahead with its questioning, two of the three also found the case presented an “issue of first impression . . . whether to provide make-whole relief to an employee discharged for misconduct that occurred during an unlawful interview.” Those members also created a new standard to be applied where the misconduct causing termination is precipitated by and occurs during an unlawful interview following a denial of Weingarten representation. In their opinion, make-whole relief is appropriate where: (1) an employer, in discharging an employee, relies at least in part on the employee’s misconduct during an unlawful interview; and (2) the employer is unable to show it would have discharged the employee absent that purported misconduct.

Because Smith answered questions in both lawful and unlawful interviews, the NLRB remanded the case to the ALJ to make specific findings regarding which interviews were the source of the inconsistent statements the employer relied on and whether the employer could demonstrate it would have discharged Smith regardless of any conduct during the unlawful interviews.

Given the NLRB’s activist approach, it was only a matter of time before it expands Weingarten rights. Unionized employers should be extra cautious about denying employees these rights, and where an employee declines representation during an investigatory interview, documenting that decision. This may not be the last expansion of Weingarten rights. Many commentators believe the Board will revisit Epilepsy Foundation, 331 NLRB 676 (2000), and again apply Weingarten to non-union employees.