In its seemingly unending quest to reverse long-settled employer defenses, the National Labor Relations Board (“NLRB” or “Board”) has instructed an Administrative Law Judge to reconsider his decision denying reinstatement to an employee fired for dishonesty. The employee had been improperly denied a Weingarten representative in an investigatory interview. However, the employee had not been terminated for requesting a Weingarten representative, he was terminated for the dishonesty that came to light during the investigatory meeting. Historically and at least since 1984, the NLRB had denied reinstatement as remedy for a Weingarten violation unless the employee was discharged for asserting his/her right to a Weingarten representative. Absent that circumstance, the usual remedy is a cease and desist order and a notice posting. Notwithstanding the 30 years of precedent, the NLRB announced a new standard that will require reinstatement of an employee discharged based on misconduct that occurs during an unlawful interview, unless the employer can show it would have terminated the employee absent the misconduct. In other words, as described by Dissenting Member Johnson, the NLRB is adopting a “fruit of the poisonous tree” standard. No matter how egregious the misconduct, if it is discovered during an unlawful interview, the employee will be entitled to seek reinstatement. Although it is impossible to predict where the Board will strike next, unionized employers are well-advised to ensure compliance with the Weingarten rule, in view of this new “get out of jail free card.”
E.I Dupont de Nemours and Co., Inc., 362 NLRB No. 98 (May 29, 2015).