• NLRB Requires Make-Whole Remedy for Violation of Weingarten Right
  • July 8, 2015
  • Law Firm: Shawe Rosenthal LLP - Baltimore Office
  • The National Labor Relations Board has announced a new rule governing the remedy for a violation of an employee’s right to union representation during an investigatory interview that may result in discipline (i.e. Weingarten right).                                            

    Background and Facts of the Case: The U.S. Supreme Court, in NLRB v. Weingarten, Inc. established the Weingarten right to union representation, upon the employee’s request, during an investigatory interview that the employee reasonably believes may lead to disciplinary action. The failure to grant the employee’s request for a Weingarten representative is a violation of Section 8(a)(1) of the National Labor Relations Act, which protects an employee’s right to engage in protected concerted activity regarding the terms and conditions of employment.

    In E.I. Dupont de Nemours & Co., the employee requested, but was denied, a Weingarten representative. During the interviews, he made statements that the employer viewed to be dishonest and inconsistent, which resulted in his termination. An administrative law judge found the interviews to be illegal and issued a cease and desist order, but declined to order reinstatement or back pay because the employee had been terminated for cause. The Board’s General Counsel, however, argued that a make-whole remedy was warranted because of the nexus between the unlawful interviews and the employee’s misconduct.

    The Board’s Decision.
    The Board noted that “whether to provide make-whole relief to an employee discharged for misconduct that occurred during an unlawful interview” was an issue of first impression. It then set forth the rule that “a make-whole remedy is appropriate when: (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 that it would have discharged the employee absent that purported misconduct.” The Board reasoned that the employer’s unlawful conduct “may have created the circumstance that led to the conduct for which [the employee] was discharged.”

    Lessons Learned. As the one dissenting Board Member pointed out, this rule entitles an employee to backpay and reinstatement if discharged for misconduct that occurs during the unlawful interview without limitation as to the gravity or extent of the misconduct, and may even include the disclosure of previously unknown misconduct, such as theft or illegal drug sales, during such interview. Unionized employers are cautioned to ensure compliance with an employee’s Weingarten right.