Reinstatement and Backpay Appropriate If Employee Discharged for Misconduct Occurring During Unlawful Interview: NLRB | Practical Law

Reinstatement and Backpay Appropriate If Employee Discharged for Misconduct Occurring During Unlawful Interview: NLRB | Practical Law

In E.I. Dupont de Nemours & Co., Inc., the National Labor Relations Board (NLRB) held that make-whole remedies like reinstatement and backpay were available if an employee was terminated for engaging in misconduct during an interview in which the employer unlawfully denied the employee's request for a Weingarten representative. The NLRB found that a nexus between the employer's unlawful denial of a Weingarten representative and the reason for the employee's discharge was a sufficient basis for ordering the employee to be made whole.

Reinstatement and Backpay Appropriate If Employee Discharged for Misconduct Occurring During Unlawful Interview: NLRB

by Practical Law Labor & Employment
Published on 09 Jun 2015 • USA (National/Federal)
In E.I. Dupont de Nemours & Co., Inc., the National Labor Relations Board (NLRB) held that make-whole remedies like reinstatement and backpay were available if an employee was terminated for engaging in misconduct during an interview in which the employer unlawfully denied the employee's request for a Weingarten representative. The NLRB found that a nexus between the employer's unlawful denial of a Weingarten representative and the reason for the employee's discharge was a sufficient basis for ordering the employee to be made whole.
On May 29, 2015, in E.I. Dupont de Nemours & Co., Inc., a majority of the panel handling the NLRB's judicial functions (Board) held that make-whole remedies like reinstatement and backpay were available if an employee was terminated for engaging in misconduct during an interview in which the employer unlawfully denied the employee's request for a Weingarten representative. The NLRB found that a nexus between the employer's unlawful denial of a Weingarten representative and the reason for the employee's discharge was a sufficient basis for ordering the employee to be made whole. In this case, awarding the employee reinstatement and back pay would be appropriate if, on remand, the administrative law judge (ALJ) finds that the employer discharged the employee at least in part for his misconduct during unlawful interviews, and the employer cannot show that it would have terminated the employee for independent reasons. (362 N.L.R.B. slip op. 98 (May 29, 2015).)

Background

Joel Smith worked as a plant employee for E.I. Dupont de Nemours & Co., Inc. (Dupont). On May 23, 2012, Smith suffered a slip and fall at the plant and went to the hospital. The following day, Smith's supervisor at Dupont, as well as Dupont's medical staff, questioned Smith about the accident. Dupont's management then called Smith into an investigatory interview to question him further about the accident. Smith immediately requested that a union representative (Weingarten representative) be present for the interview, but Dupont's management denied his request (NLRB v. Weingarten, 420 U.S. 251 (1975)). Smith was interviewed a second time about the accident and again was denied a Weingarten representative. He was not provided a Weingarten representative until a third interview. On June 21, 2012, Dupont terminated Smith's employment in a letter stating that he had given "false or incomplete information . . . in connection with management investigations."
Smith's union filed a charge with the NLRB, and the NLRB filed a complaint alleging that Dupont:
  • Violated Section 8(a)(1) of the NLRA by denying Smith's request for a union representative during interviews that Smith reasonably believed could lead to discipline against him.
  • Terminated Smith for conduct he engaged in during the interviews.
An ALJ found that:
  • Dupont violated Section 8(a)(1) by failing to provide Smith with a union representative during the investigatory interviews.
  • Smith was discharged for misconduct during the investigatory interviews, but make-whole relief was inappropriate because Smith was terminated "for cause" and not for asserting his Weingarten rights (Taracorp, Inc., 273 N.L.R.B. 221 (1984)).
The NLRB's General Counsel excepted to the ALJ's finding that Smith was not entitled to make-whole relief.

Outcome

The Board unanimously affirmed that Dupont violated Section 8(a)(1) by failing to provide Smith with a union representative. A majority of the Board (Chairman Pearce and Member Hirozawa) held that Smith would be entitled to make-whole relief if it were found on remand that Dupont:
  • Discharged Smith at least in part for his purported misconduct during the unlawful investigatory interviews.
  • Was unable to show that it would have discharged Smith absent that purported misconduct.
The Board majority (Chairman Pearce and Member Hirozawa) noted that:
  • Taracorp involved an employee engaging in misconduct (insubordination) separate from an unlawful Weingarten interview. The Board in Taracorp denied reinstatement and backpay because:
    • the employee was not discharged for asserting his Weingarten right to representation; and
    • there was not a sufficient nexus between the employer's ULP (denying a Weingarten representative at an investigatory interview) and the reason for the employee's discharge.
  • The Board had never directly addressed the issue of whether a make-whole remedy is available to an employee discharged for conduct that occurred during an unlawful Weingarten interview.
  • A memorandum from the Division of Advice issued in 2010 advised that a make-whole remedy would be appropriate in a case involving an employee discharged in part for dishonesty during an unlawful Weingarten interview, unless the employer could show that it would have discharged the employee absent the employee's dishonesty (Birds Eye Foods, Case 03-CA-026833, Advice Memorandum, Feb. 3, 2010)).
  • The Board had previously denied a make-whole remedy in a case involving misconduct uncovered during unlawful video surveillance, but had distinguished that from cases where an employee's actions would have been cause for discipline had the employer not committed ULPs (Anheuser-Busch, Inc., 351 N.L.R.B. 644 (2007)).
The Board majority found that:
  • A sufficient resolution of this issue, which the majority characterized as being one of first impression for the Board, was not simply to hold that the only remedy for a Weingarten violation is a cease-and-desist order.
  • Awarding a make-whole remedy in cases involving a nexus between an employee's misconduct and the employer's denial of the employee's request for a union representative did not contradict Section 10(c)'s prohibition against awarding backpay and reinstatement to individuals suspended or discharged "for cause" (29 U.S.C. § 160(c)).
  • This case differed from a typical Weingarten case like Taracorp, where the employee's misconduct occurred independently of the unlawful interview, because:
    • there was a nexus between Dupont's unlawful interview and the misconduct for which Smith was discharged;
    • the unlawful Weingarten interviews may have created the circumstances that led to Smith's termination; and
    • the misconduct leading to discharge (Smith's dishonesty) occurred after Dupont's denial of Weingarten rights and during, not before, the unlawful interviews.
  • The dissent is flawed because it:
    • failed to consider the significance of the timing of Smith's misconduct and how Dupont played an unlawful role in Smith's termination; and
    • contained misplaced concern that the majority's holding would amount to bringing the criminal "fruit of the poisonous tree" doctrine into the labor sphere, as the majority simply holds that when an employer discharges an employee for misconduct the employer caused, the proper remedy is to make the discharged employee whole.
  • Remand was appropriate for the ALJ to identify whether:
    • Smith was discharged based in part on his conduct during at least one of the two unlawful interviews; and
    • Dupont could meet its burden of showing that it would have discharged Smith for reasons independent of his conduct during the two unlawful interviews.
The majority asserted that if the ALJ finds on remand that Smith was discharged based in part on his conduct during at least one of the two unlawful interviews, and if Dupont was unable to meet its burden, then the ALJ must order Dupont to make Smith whole with reinstatement and backpay.
Member Johnson dissented in part, noting that:
  • The appropriate remedy for Dupont's unlawful denial of Smith's request for a Weingarten representative during the investigatory interviews was a cease-and-desist order.
  • The Board's holding could not be reconciled with Taracorp's holding and marked a partial return to a discredited "fruit of the poisonous tree" standard from Kraft Foods that Taracorp overruled (Kraft Foods, 251 N.L.R.B. 598 (1980)).
  • Taracorp addressed the same factual situation as this case, and Taracorp could not be interpreted as allowing a make-whole remedy solely based on there being a nexus between the employer's Weingarten violation and an employee's misconduct.
  • Make-whole remedies are only available if an employee was terminated based on:
    • the Weingarten request itself;
    • conduct that cannot be deemed misconduct under the NLRA; or
    • conduct that results from an act that was itself a ULP, such as an unlawful layoff, unlawful work rule or unlawfully motivated investigation.

Practical Implications

The Board majority's decision in E.I. Dupont illustrates a clear dividing line on the issue of remedies when an employee is discharged for conduct that occurred during an unlawful Weingarten interview. The majority portrayed the issue as being one of first impression, while the dissent claimed the majority was merely returning to a discredited doctrine. To avoid this issue, employers must be careful not to infringe on union-represented employees' Weingarten rights in the first place by:
  • Knowing employees' rights under Weingarten and what triggers these rights.
  • Informing employees of the purpose of the meeting so that it is clear whether an employee's Weingarten rights may be implicated.
  • Being careful not to take any adverse action against an employee because of conduct he engaged in during the meeting where a Weingarten representative was denied, unless the employer can show that it would have taken the same action even absent the employee's misconduct during the interview.
To see a summary of a sample United Steelworkers CBA and compare it with other unions' CBAs, visit the What's Market Collective Bargaining Agreements Database.