Companies need to be conscious of when employees are permitted to have union representation because the consequences of unlawfully denying union representation can be grave.

Employee Andrew Smith was called into an interview with DuPont Company the day after he reported a workplace fall. DuPont had disciplined Smith just one year earlier for dishonesty and insubordination after the report of a slip-and-fall. The company refused Smith’s request to have a union representative during either of his two interviews.

DuPont concluded that Smith had a “history of dishonesty” and terminated him at least in part because of statements he made during the interviews.

The U.S. Supreme Court decision NLRB v. Weingarten Inc.established that an employee has a statutory right to request a union representative during an investigatory interview if the employee reasonably believes the interview may result in disciplinary action. The Board unanimously agreed that DuPont violated Smith’s Weingarten rights when it refused to let him have a union representative present.

The only remaining issue was what damages he was entitled to for violation of his Weingarten rights. While the Board has not typically ordered make-whole relief – reinstatement and back pay – it awarded this type of relief here. The Board explained that it will award make-whole relief if a company fires an employee “at least in part on the employee’s misconduct during an unlawful interview” and if the company cannot show that it would have discharged the employee absent the alleged misconduct.

The Board has once again shown that it will continue to stiffen penalties against non-compliant companies by forcing the employer to reinstate an employee with back pay, even if an employee lied during an interview.