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.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.