Monday, July 20, 2015

The Hyperactive NLRB

July 2015
By: Walter J. Liszka, Esq.


Over the lengthy span of the author’s employment law career (commenced in November, 1972), it was a long established standard that the National Labor Relations Board (NLRB) was a somewhat slow-moving and methodical federal agency when compared to other federal agencies such as the Equal Employment Opportunity Commission (EEOC). This “long established standard” has been rant asunder over the last few years as the NLRB has done a 180-degree turn from a slow-moving methodical agency into a highly active and, what many consider, very liberal agency.

Over the past few years there have been a number of articles written by the author and others in our firm dealing with the NLRB’s “activist posture” on various issues (expansion of Section 7 Rights dealing with invalidation of employer handbook policies, the aggressive approach being taken with the McDonald’s litigation in establishing “joint employer status” between McDonald’s and its franchisees, the creation of the “ambush election rules” and warp speed processing of representational election issues, etc.). The NLRB has now again taken a very aggressive posture with another well-established and long-standing policy.

All employers who are involved in union relationships are cognizant of the NLRB vs. J. Weingarten, Inc. decision of the United States Supreme Court in 1975. That decision established the legal principle that a union-represented employee was entitled to have union representation present, upon the employee’s request, during any investigative interview that the employee reasonably believed might lead to disciplinary action. If the involved employee requested union representation, the employer could not continue to interview the employee, but the employer could deny the employee’s request for union representation and conduct its own investigation without interviewing the employee and come to any decision it wanted. This standard was established for union employees as previously indicated in 1975 and continued unchanged and unabated until recently. The NLRB did show a little aggressiveness in 2000 when in the case of Epilepsy Foundation, the “Weingarten rights” were extended to nonunion employees as well (i.e., a nonunion employee could request that another employee be present during the interview). The NLRB has now fashioned new remedies – reinstatement and back pay or what is considered “make-whole relief” for certain violations of Weingarten rights.

In the case of E.I. Dupont de Nemours & United Steel Workers Local 6992 (362 NLRB No. 98 – May 29, 2015) the NLRB has established the right of an individual who was denied Weingarten rights to receive the “make-whole relief”.

In the Dupont case, an employee by the name of Smith was involved in a workplace accident in May 2012. He was initially questioned by his supervisor and company medical personnel about the accident immediately after it occurred, but it should be noted at those meetings Smith did not request union representation. When he was later called into an investigative interview with other Dupont personnel, he did request union representation but that request was denied and, in fact, he was further questioned about the incident after he was denied union representation. He was interviewed a second time by company managers, again without representation; he was interviewed a third time, but at the third interview, he was provided with union representation. Dupont ultimately terminated Smith’s employment predicated on the fact that Dupont believed that Smith had “provided false or incomplete information during the interview process”. At the initial hearing at this matter at the Administrative Law Judge level, the ALJ decided that Smith had been unlawfully denied his representational rights, but the ALJ did not offer “reinstatement with back pay”. On appeal, the three-member board panel, upon reviewing the case, decided that the make-whole remedy was appropriate and created a new standard to be applied where the inappropriate termination was precipitated by or occurred during an unlawful interview. It was their opinion that the make-whole relief would be appropriate where an employer, in discharging an employee, relies, at least in part, on the employee’s commentary during an unlawful interview and that same employer had been unable to show it would have discharged the employee absent the purported denial of Weingarten rights, i.e., continued interview without requested union representation.

In the opinion of the author, this is an impossible standard for any employer to attain. Because information will be gathered in the unlawful interview (i.e., interview conducted without requested union representation), it will be impossible for the employer to establish that it would have discharged the individual in any circumstances. If, in fact, the employer had enough information to discharge the individual prior to the interview, why was the interview necessary at all? In point of fact, the employee could just have easily been taken into a room by company representatives and told “you are being fired for XYZ reason”. What was the need to get any information whatsoever from the involved employee?

Given the current standard of the NLRB’s activist approach, it is strongly recommended that employers be extra cautious in denying employees their rights to representation if so requested. It is strongly recommended that when an individual is called into an investigative interview and declines representation during that interview, that such “declining of representation” be reduced to writing and signed by the involved employee and company representatives. Only time will tell as to how far the NLRB is going to go (i.e., will this “make-whole remedy” be extended to the non-union situation?), but it is quickly changing its image of the slow plodding agency into a very activist one!

Questions? Contact Walter Liszka at waliszka@wesselssherman.com or call him at (312) 629-9300.(312) 629-9300