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Internal Investigations 101: Weingarten Rights (Part V)

An internal investigation is an important mechanism an organization can use to address an allegation of wrongdoing, determine legal liability, identify individuals or parties with culpability, comply with regulatory requirements, develop corrective measures and enhance operational efficiencies. Buckner is pleased to continue its blog series highlighting best practices, strategies and techniques that can be used by organizational leaders and counsel during an internal investigation. Today’s post will continue our overview of Weingarten Rights, which came as a result of the United States Supreme Court’s 1975 decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), which upheld a National Labor Relations Board (NLRB) decision that held employees possess a right to union representation during investigatory interviews:

In the May 29, 2015, decision in E.I. Dupont de Nemours & United Steel Workers Local 6992, 362 NLRB No. 98 (May 29, 2015), the NLRB issued a decision creating new remedies (i.e., make-whole relief–reinstatement and back pay) for some violations by an employer of an employee’s Weingarten Rights. The Dupont case involved an employee (Smith), who was involved in a workplace accident. The employer (i.e., supervisor and medical personnel) initially questioned Smith regarding the accident. Smith did not request a union representative during the questioning. Smith was subsequently requested to participate in an investigatory interview. Smith requested a union representative to be present in the interview. However, Smith’s request was denied by the company. The company questioned Smith regarding the accident. Additional mangers conducted an interview of Smith several days later, but Smith did not have union representation. During a third interview, Smith had a union representative present. The company terminated Smith’s employment for “[f]alsification of records, data, documents, or other information including giving false or incomplete information during employment or when applying for employment, or in connection with management investigations.”

The NLRB panel, which reviewed an administrative law judge’s ruling, determined the employer unlawfully refused Smith’s request for union representation when it conducted investigatory interviews. However, two of the three panel members noted the case created an “issue of first impression” regarding “whether to provide make-whole relief to an employee discharged for misconduct that occurred during an unlawful interview.” The two panel members developed a new standard when an employee’s misconduct that caused the termination is caused by and occurs during an unlawful interview following the employer’s denial of an employee’s request for union representation under Weingarten. The panel ruled make-whole relief, which attempts to place the employee back into the situation he or she would have been in if the misconduct had not occurred, is appropriate where: (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 it would have discharged the employee absent that purported misconduct. The NLRB panel also decided since Smith answered questions in lawful and unlawful interviews, the case was remanded to the administrative law judge to make specific findings regarding: (1) which interviews were the source of the inconsistent statements the company relied on; and (2) whether the company could demonstrate it would have discharged Smith regardless of any conduct during the unlawful interviews.

The full NLRB decision can be read by clicking the following link: E.I. Dupont de Nemours & United Steel Workers Local 6992, 362 NLRB No. 98 (May 29, 2015).


About Michael L. Buckner, Esquire

An attorney who provides clients with internal investigation, civil litigation, estate planning and compliance services.


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