What’s the Remedy for Misconduct at Illegal Investigatory Interview?

July 20, 2015

The National Labor Relations Board (NLRB) recently addressed a novel issue in a case involving an employee who engaged in misconduct during an investigatory interview for which he had been denied his right to a union representative. The employer discharged the employee for his misconduct. The issue facing the NLRB was, what is the appropriate remedy for such conduct?

What are Weingarten rights?

As a brief refresher, an employee’s rights to a union representative during an investigatory interview currently apply only in a unionized work environment. Those rights, known as Weingarten rights, essentially mandate allowing union representation at an investigatory interview that the employee reasonably believes could result in disciplinary action. An employee cannot be punished or retaliated against for exercising his Weingarten rights.

Once an employee has requested the presence of a union representative, the employer has three options:

  1. Allow the request and delay the meeting until a union representative can be present;
  2. Deny the request and end the interview; or
  3. Give the employee the choice of continuing the interview without the presence of a union representative or end the interview.

Although Weingarten rights seem simple enough, their application isn’t as clear. For example, what happens if an employer violates an employee’s Weingarten rights? Historically, the general remedy has been issuing a cease-and-desist order and requiring the employer to post a notice explaining employees’ rights. The law is less clear about what happens when an employer violates an employee’s Weingarten rights and subsequently terminates him for the conduct that led to the investigatory interview.

Case background

The case before the NLRB involved an incident in which Joel Smith slipped and fell on the floor of the plant where he worked. As a result of the fall, he was taken to the hospital. Upon his release from the hospital, he returned to the plant and was questioned by his supervisor about the accident. He was then directed to meet with the employer’s medical staff, who asked him additional questions.

Approximately one hour after the conclusion of his 12-hour shift, Smith was called into an investigatory interview with three management employees. He immediately requested a union representative, but his request was denied. During the interview, he was repeatedly asked questions about the accident.

One week later, Smith was called into yet another investigatory interview and was again questioned about the accident. Once again, he was denied a union representative. Ten days later, he was interviewed about the accident for a third time. This time, a union representative was present at the interview.

One week after the third interview, the employer made the decision to discharge Smith. The reasons for the termination included alleged inconsistencies in his description of the accident during his various interviews with management.

The union representing Smith filed an unfair labor practice (ULP) charge alleging, among other things, a violation of his Weingarten rights based on the employer’s denial of his request for a union representative at the first two investigatory interviews. The local NLRB regional office issued a complaint against the employer. In addition to the standard cease-and-desist and notice-posting remedy, the General Counsel requested a “make-whole remedy,” requiring the employer to reinstate Smith to his previous position and compensate him for lost wages and benefits.

Case goes to an administrative hearing

Following a hearing, the administrative law judge (ALJ) determined that Smith’s Weingarten rights had been violated. However, the ALJ stated that unless the employer had terminated Smith for asserting his Weingarten rights, current NLRB law prohibited him from issuing, a make-whole remedy. The ALJ found that Smith hadn’t been discharged for asserting his Weingarten rights but rather for his dishonesty and for allegedly giving inconsistent answers to questions he was asked in various interviews during the investigative process.

In a 1984 decision, Taracorp, the NLRB found that an employee’s insubordination and refusal to perform a requested task occurred outside the investigatory interview during which the employer had unlawfully denied the employee’s request for a union representative. In Taracorp, the NLRB limited the remedy to a cease-and-desist order because the make-whole relief “for this or any similar Weingarten violation” was contrary to the specific instruction in Section 10(c) of the National Labor Relations Act (NLRA) that the Board shouldn’t order reinstatement or back pay for an employee who was suspended or discharged “for cause.” The Board reasoned that there wasn’t a sufficient nexus between the ULP (denial of Weingarten rights) and the reason for discharge (perceived misconduct) to justify a make-whole remedy.

In the current case, the General Counsel alleged that Taracorp was a different situation because Smith’s conduct didn’t occur before or independent of the unlawful investigatory interview. Instead, the General Counsel argued that the conduct occurred during and was prompted by the unlawful interviews.

NLRB’s review

Upon review, the NLRB agreed with the General Counsel that this was a case of first impression. In other words, the Board had never previously been required to address the issue of providing make-whole relief to an employee who was discharged for misconduct that occurred during an unlawful interview. The NLRB determined that a make-whole remedy for a Weingarten violation is appropriate when (1) an employer, in discharging an employee, relies at least in part on the employee’s misconduct during the unlawful interview and (2) the employer is unable to show that it would have discharged the employee in the absence of the purported misconduct.

The NLRB sent the case back to the ALJ to determine if Smith’s discharge was based, at least in part, on his conduct during one of the two unlawful interviews. If the ALJ held that it was, then the employer would bear the burden of showing that it would have discharged Smith regardless of his conduct during the two investigatory interviews. E.I. Dupont de Nemours & Co., Inc., 362 NLRB No. 98 (2015).

Bottom line

Disciplining an employee for exercising his Weingarten rights will result in a make-whole remedy. Merely violating an employee’s Weingarten rights by denying him a union representative during an investigatory interview will result only in a cease-and-desist order and a posting requirement. However, if the employer relies, at least in part, on the employee’s conduct during an unlawful interview as the basis for an adverse action, a make-whole remedy will be appropriate unless the employer meets its burden to show that the employee would have been disciplined despite his conduct during the investigatory interview.

This article, slightly modified to note recent updates, was featured in the July 2015 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

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