E.I. DuPont de Nemours & Co., Inc.

National Labor Relations Board - Board Decisions

May 29, 2015

362 NLRB No. 98 (N.L.R.B. 2015)

362 NLRB No. 98
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
E.I. Dupont de Nemours & Co., Inc. and United
Steelworkers, Local 6992. Case 03–CA–090637
May 29, 2015
DECISION AND ORDER REMANDING IN PART
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On August 26, 2013, Administrative Law Judge Ste-
ven Davis issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed cross-exceptions and a supporting brief,
and both parties filed an answering brief and a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions in
part, and to adopt the recommended Order subject to
modification as a result of this remand.
At issue in this case is whether the Respondent violat-
ed Section 8(a)(1) of the Act by denying employee Joel
Smith a Weingarten1 representative during investigatory
interviews that Smith reasonably believed might result in
discipline and, if so, the appropriate remedy for those
violations. Although the judge found that the Respond-
ent violated Section 8(a)(1), as alleged, he concluded that
because Smith was discharged for misconduct—namely
dishonesty and inconsistency at “various interviews”—
make-whole relief was inappropriate under Taracorp,
Inc., 273 NLRB 221 (1984). The General Counsel ex-
cepts, arguing that because the Respondent terminated
Smith in part for his conduct during those unlawful in-
terviews, Taracorp is inapplicable and Smith is entitled
to reinstatement and backpay.
Initially, we agree with the judge, for the reasons he
states, that the Respondent violated Section 8(a)(1) of the
Act by denying Smith’s request for a Weingarten repre-
sentative at an investigatory interview on May 24, 2012,
and at the continuation of that interview on June 1,
2012.2 We also agree with the judge that appropriate

1 NLRB v. Weingarten, Inc., 420 U.S. 251, 252–253 (1975).
2 Weingarten entitles an employee to union representation, on re-
quest, at an investigatory interview which the employee reasonably
believes might result in his discipline. 420 U.S. at 267. See also
Murtis Taylor Human Services Systems, 360 NLRB No. 66 slip op. at
2–3 (2014). Although the employer may insist that the requesting
employee choose between participating in the interview unaccompa-
nied by his representative or having no interview at all, it cannot merely
remedies for these violations include a cease-and-desist
order and a notice posting. For the reasons set forth be-
low, however, we remand this case to the judge for fur-
ther findings and analysis on the issue of whether rein-
statement and backpay are additional appropriate reme-
dies, as urged by the General Counsel.
Facts
The Respondent makes Tedlar film and Corian coun-
tertops at its Yerkes Plant in Tonawanda, New York.
This case involves a May 23, 2012 incident during which
Smith, a 7-year employee at the Yerkes Plant, slipped
and fell on the plant floor. Smith had a prior slip-and-fall
accident about a year earlier, on May 12, 2011. Follow-
ing an investigation into that accident, the Respondent
disciplined Smith for, among other things, dishonesty,
insubordination, and unsatisfactory job performance.
Smith was interviewed without the benefit of a union
representative during that investigation.
The 2012 accident at issue here occurred during a hot
and difficult nighttime shift at the plant. At the time,
Smith was working as a wind-up operator, a position that
involves handling wet film. Smith was unfamiliar with
this position and inexperienced in performing the work.
While rushing to respond to a problem on the production
line, Smith fell on the stairs, threw his arms forward to
break his fall, and hit his knee. After the fall, the pain in
both Smith’s shoulder and knee prompted him to go im-
mediately to the hospital.
Following his release from the hospital in the early
morning hours of May 24, Smith returned to the plant,
where his supervisor, Mike Szymanski, questioned him
about the accident. Szymanski then directed Smith to
meet with the Respondent’s medical staff. Smith an-
swered their questions about the accident, as well.
Approximately 1 hour after the conclusion of Smith’s
12-hour shift, at a time when he normally took his diabe-
tes medication, he was called into an investigatory inter-
view about the accident with three management officials.
This turn of events caused Smith to miss taking his med-
ication.
When he was called into the interview, Smith immedi-
ately requested but was unlawfully denied a Weingarten
representative. During the interview, management re-
peatedly questioned Smith about the accident. After the

deny the request and continue the investigatory interview. See, e.g.,
Postal Service, 241 NLRB 141, 141 fn. 7 (1979). As found by the
judge, the Respondent violated the Act by not providing Smith with
union representation at these two investigative meetings, and by failing
to discontinue the meetings or give Smith the option of continuing the
interviews unrepresented or having no interviews at all. We agree with
the judge that Smith did not need to renew his request for representa-
tion at the second interview.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
interview, the managers also questioned several of
Smith’s coworkers about the accident.
One week later, on June 1, management officials again
interviewed Smith about his fall, and again unlawfully
failed to allow him a union representative. On June 11,
management interviewed Smith for a third time, but this
time a union representative was present.
On June 18, Respondent’s management met to discuss
possible disciplinary action against Smith. The meeting
included a presentation regarding the investigation of
Smith’s injury. The presentation detailed alleged incon-
sistencies in Smith’s description of the accident during
his various interviews with management. The presenta-
tion also referred to Smith’s prior 2011 discipline, which
purportedly showed a “history of dishonesty.” Following
the presentation, management decided to discharge
Smith.
On June 21, Smith received a letter from the Respond-
ent stating that he was terminated for “[f]alsification of
records, data, documents, or other information including
giving false or incomplete information during employ-
ment or when applying for employment, or in connection
with management investigations.”
Discussion
1. The judge’s remedial findings based on Taracorp
In addition to alleging that the Respondent violated
Section 8(a)(1) by denying Smith’s request for a
Weingarten representative at the May 24 and June 1 in-
terviews, the General Counsel alleged that the Respond-
ent terminated Smith, “in part, for conduct in which he
engaged during the May 24 and June 1 Interviews.” The
complaint accordingly requested a make-whole remedy,
requiring the Respondent to reinstate Smith and compen-
sate him for any lost wages and benefits. Citing
Taracorp, Inc., supra, the judge found that unless Smith
was discharged for asserting his Weingarten right, Board
law prohibited a make-whole remedy for the Respond-
ent’s Weingarten violations. The judge further found
that Smith was not discharged for asserting his
Weingarten right, but for his “dishonesty [in] allegedly
[giving] inconsistent responses to questions asked at his
various interviews during the investigative process.”
Therefore, the judge concluded that Smith’s discharge
was for cause and that make-whole relief was proscribed
under Taracorp.
In Taracorp, the employee’s misconduct—
insubordination and a refusal to perform a requested
task—occurred outside the interview where the employer
unlawfully denied the employee’s request for a
Weingarten representative. In limiting the relief for the
Weingarten violation to a cease-and-desist order, the
Board determined that make-whole relief “for this or any
similar Weingarten violation” is contrary to Section
10(c)’s specific remedial instruction that the Board
should not order reinstatement or backpay for an em-
ployee who was suspended or discharged “for cause.”3
Taracorp, 273 NLRB at 221–222. In explaining its deci-
sion, the Board reasoned that, in the “typical”
Weingarten case, id. at 223, “there simply is not a suffi-
cient nexus between the unfair labor practice committed
(denial of a representative at an investigatory interview)
and the reason for the discharge (perceived misconduct)
to justify a make-whole remedy.” Ibid.
2. The parties’ contentions
The General Counsel contends that this case differs
from Taracorp because the misconduct for which Smith
was discharged did not occur before or independent of
the unlawful Weingarten interviews. Instead, the Gen-
eral Counsel argues that Smith’s discharge was based on
conduct that occurred during and was prompted by the
unlawful interviews. The General Counsel maintains
that in these circumstances, unlike in Taracorp, a make-
whole remedy is warranted because there is a nexus be-
tween the Respondent’s unfair labor practices (the un-
lawful interviews) and the employee misconduct (dis-
honesty during those interviews).4
The General Counsel further maintains that Anheuser-
Busch, Inc., 351 NLRB 644 (2007), review denied 303
F.Appx 899 (D.C. Cir. 2008), relied on by the judge in
denying the requested make-whole remedy, is inapposite.
In Anheuser-Busch, the Board found make-whole relief
inappropriate where the employees had been discharged
for misconduct discovered through unlawful surveil-
lance. In denying a make-whole remedy, the Board spe-
cifically noted that the case was unlike ones in which the
Board had provided make-whole relief to employees
notwithstanding their misconduct. The Board explained
that in those other cases it was unclear “whether the em-

3 Sec. 10(c) of the Act (29 U.S.C. § 160(c)) provides:
No order of the Board shall require the reinstatement of any individual
as an employee who has been suspended or discharged, or the pay-
ment to him of any backpay, if such individual was suspended or dis-
charged for cause.
4 The General Counsel further asserts that Supershuttle of Orange
County, Inc., 339 NLRB 1 (2003), relied on by the judge in denying
make-whole relief, actually supports the requested remedy. Thus, in
finding that make-whole relief was warranted in Supershuttle for an
employee discharged for conduct during a discriminatorily motivated
investigation, the Board found that “the discharge . . . was not based on
misconduct uncovered by the investigation, but rather on misconduct
that was triggered by and elicited during the investigation.” Id. at 3
(Emphasis omitted.). The General Counsel argues that this is precisely
what happened here, because the Respondent relied on Smith’s conduct
in the unlawful May 24 and June 1 meetings when discharging him.
3
E.I. DUPONT DE NEMOURS & CO.
ployees’ actions . . . would have merited the discipline
imposed—that is, whether the employees’ actions would
have constituted ‘cause’ for discipline—if the employer
had not committed the unfair labor practices.” Id. at 649.5
The General Counsel argues that the present case is like
those distinguished by the Anheuser-Busch Board: it was
during the unlawful interviews that Smith engaged in the
conduct for which he was discharged, and had the Re-
spondent acted lawfully and either provided a representa-
tive or terminated the interview when it failed to honor
Smith’s representation request, Smith might not have
been discharged.
Recognizing that the Board has never directly ad-
dressed the issue of whether a make-whole remedy is
available to an employee discharged for misconduct oc-
curring during an unlawful Weingarten interview, the
General Counsel urges the Board to consider the ra-
tionale set forth in memoranda from the Division of Ad-
vice advocating such relief. In one such case, Birds Eye
Foods,6 an employer discovered through lawful video
surveillance that an employee had tossed a cup of coffee
into a supervisor’s office. During an unlawful
Weingarten interview, the employee initially denied
throwing the coffee. The employer discharged the em-
ployee, citing both the coffee-throwing and the employ-
ee’s dishonesty during the interview as reasons for the
discharge. Reasoning that a union representative could
have informed the employee about the video surveillance
system prior to the meeting, making it unlikely that the
employee would have lied, the Division of Advice de-
termined that a close nexus existed between the employ-
er’s unfair labor practice and the employee’s discharge.
The Division of Advice concluded that unless the em-
ployer could demonstrate that it would have discharged
the employee absent the employee’s dishonesty during
the unlawful interview, a make-whole remedy would be
appropriate.7

5 See, e.g., Kolkka Tables & Finnish-American Saunas, 335 NLRB
844, 849–851 (2001); Kidde, Inc., 294 NLRB 840 (1989).
6 Case 03–CA–026833, Advice Memorandum dated February 3,
2010.
7 The relevant Advice memoranda posited that where an employee is
discharged for misconduct occurring, at least in part, during an unlaw-
ful Weingarten interview, a make-whole remedy is warranted “unless
the employer can meet a [ ] mixed motive burden, showing that it
would have discharged the employee independent from his or her con-
duct during the unlawful interview.” The Lusty Lady, Case 19–CA–
026979, Advice Memorandum dated September 8, 2000, citing Nation-
al Rehabilitation Hospital, Case 05–CA–024870, Advice Memorandum
dated February 28, 1995.
Similarly, in National Rehabilitation Hospital,8 the
Division of Advice recommended a make-whole remedy
where the employer discharged an employee because of
his intemperate behavior during an unlawful Weingarten
interview. The Advice memorandum explained that a
make-whole remedy was appropriate because the “em-
ployee’s conduct of losing his temper upon being ac-
cused of improper conduct was the direct result of the
Employer’s having violated [the employee’s] Weingarten
right.”
Applying the foregoing reasoning to this case, the
General Counsel contends that a representative would
have aided Smith in preventing the misconduct that he
assertedly committed during the May 24 interview. In-
stead, exhausted from his nighttime work shift and hospi-
tal visit, and unable to take his diabetes medication,
Smith provided seemingly inconsistent and dishonest
answers when discussing work with which he was unfa-
miliar and inexperienced. Smith’s behavior, the General
Counsel urges, could have been avoided had a repre-
sentative been present to assist him, or had the Respond-
ent terminated the interview after denying Smith’s re-
quest for representation.
In response, the Respondent contends that this case
falls squarely within the parameters set forth in Taracorp
and Anheuser-Busch, and that pursuant to those holdings,
a make-whole remedy is appropriate in the Weingarten
setting only if an employee is discharged or disciplined
for asserting the right to representation. The Respondent
argues that the evidence shows that the Respondent dis-
charged Smith for cause—dishonesty during the investi-
gation—and not because he asserted his Weingarten
rights. Therefore, the Respondent contends, make-whole
relief is not available.9
3. Analysis
We agree with the General Counsel that this case pre-
sents an issue of first impression post-Taracorp: whether
to provide make-whole relief to an employee discharged
for misconduct that occurred during an unlawful inter-
view. And, contrary to the Respondent and our dissent-
ing colleague, we do not think that resolution of this is-
sue is as simple as saying that the only remedy for a
Weingarten violation is a cease-and-desist order. Such a
categorical limitation fails to provide a suitable remedy
in cases where an employee is disciplined, not merely for

8 Case 05–CA–024870, Advice Memorandum dated February 28,
1995.
9 The Respondent further asserts that the General Counsel “conven-
iently ignores Smith’s inconsistent responses (i.e., dishonesty) during
several indisputably lawful interviews which occurred both before and
after any alleged unlawful interview.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prior misconduct—whether discovered through lawful or
unlawful means—but for misconduct precipitated by and
occurring during an unlawful interview. In the latter
circumstances, we agree with the rationale urged by the
General Counsel and in the cited Advice memoranda,
and we accordingly find that a make-whole remedy is
appropriate when: (1) an employer, in discharging an
employee, relies at least in part on the employee’s mis-
conduct during an unlawful interview; and (2) the em-
ployer is unable to show that it would have discharged
the employee absent that purported misconduct.
Awarding a make-whole remedy in such circumstanc-
es is not contrary to Section 10(c)’s prohibition against
ordering reinstatement and backpay to any individual
suspended or discharged “for cause.” 29 U.S.C. §
160(c). As stated in Taracorp, make-whole relief should
not have been granted in those earlier Weingarten cases
where the employers had discharged employees for rea-
sons “wholly independent” of any unfair labor practice,
and therefore “for cause.” Id. at 223. But as the Board
acknowledged in Anheuser-Busch, the same logic does
not apply where there is a nexus between an employee’s
misconduct and the employer’s unlawful denial of the
employee’s request for a union representative. See An-
heuser-Busch, supra, 351 NLRB at 649.
Two circuit court cases preceding Taracorp illustrate
the significance of that nexus for purposes of the remedy.
In NLRB v. Potter Electric Signal Co., 600 F.2d 120 (8th
Cir. 1979), the employer unlawfully refused the requests
of two employees for a Weingarten representative during
investigatory interviews concerning a fight between
them. Id. at 123. Both employees were eventually dis-
charged for fighting. Ibid. The court denied reinstate-
ment and backpay, finding such a remedy contrary to
Section 10(c). In doing so, the court explained that the
employer’s Weingarten violation was “incidental” to the
employees’ discharge, and that the employees, “by their
own actions, caused their own discharges by participat-
ing in a fight which stopped the production line.” Ibid.
The court reached a similar conclusion in Montgomery
Ward & Co. v. NLRB, 664 F.2d 1095 (8th Cir. 1981),
finding that a make-whole remedy was inappropriate
where the employer, following an unlawful Weingarten
interview, discharged employees for stealing employer
merchandise. The court stated that “the employees ef-
fected their own discharge by stealing and the
[Weingarten] violation was simply incidental to the in-
vestigation which preceded the firing.” Id. at 1097.
This case differs from Taracorp and similar cases in
one critical respect: the nexus between the misconduct
and the unlawful interview. Unlike the typical
Weingarten case, where the misconduct occurs inde-
pendent of the unlawful interview, here the misconduct
giving rise to the discharge (Smith’s alleged dishonesty)
is asserted to have occurred after the denial of the
Weingarten rights and during, as opposed to before, the
unlawful interview. Thus, unlike Taracorp, where the
employer’s unfair labor practice played no role in the
employees’ misconduct, in this case the unlawful
Weingarten interview was not merely incidental to
Smith’s discharge; rather, it may have created the cir-
cumstance that led to the conduct for which Smith was
discharged. Therefore, cases like Taracorp are funda-
mentally distinguishable from this case, given the nexus
between the employer’s unlawful interview and the mis-
conduct for which the employee was discharged.
Our colleague accords no significance to the timing of
the misconduct for which an employee is discharged,
stating that whether the misconduct occurred before, dur-
ing, or after an unlawful interview is a “distinction with-
out legal significance.” But the temporal distinction is
far from meaningless and is precisely what distinguishes
this case from Taracorp and its progeny. In fact, the
scenario at hand—misconduct occurring during unlawful
Weingarten interviews—reveals a gap in our jurispru-
dence for which, until now, there was no answer. And
our answer here comports with Section 10(c)’s guiding
principle, which is to restore the status quo following an
unfair labor practice. Our colleague’s refusal to see the
significance in the timing of the misconduct turns a blind
eye towards the unlawful role that the Respondent may
have played in Smith’s discharge.
Nor does our decision today signal a return, partial or
otherwise, to our previously criticized Kraft Foods10
standard. We applied that standard to cases involving
misconduct that preceded an unlawful interview. Mem-
ber Johnson’s criticism in this regard is based on his
misperception that the timing of the misconduct is not
crucial. As we stated above, this case addresses a scenar-
io to which neither Taracorp nor its predecessor, Kraft
Foods, spoke.
Our colleague’s alarm that our decision amounts to an
application of the fruit of the poisonous tree principle,
and thereby enters the criminal procedure labyrinth that
Taracorp sought to avoid, is likewise misplaced. In the
criminal context, the fruit of the poisonous tree doctrine
prevents the government from relying on evidence of
wrongdoing brought to light because of illegal actions on
the part of the police. See, e.g., Hudson v. Michigan, 547
U.S. 586, 592–593 (2006). The rule we announce today
imposes no similar limitation on employers. Thus, we do
nothing to impair an employer’s ability to take action

10 Kraft Foods, 251 NLRB 598 (1980), overruled in Taracorp.
5
E.I. DUPONT DE NEMOURS & CO.
against an employee based on preexisting misconduct
brought to light only through an unlawful interview. We
merely hold that in the very different situation where an
employer discharges an employee for misconduct that it
caused in the first instance by persisting in an unlawful
interview, the remedy for the unlawful interview should
ordinarily include make-whole relief for the discharged
employee.
Our decision also withstands our colleague’s criticism
that the standard announced today has no limiting princi-
ple. The dissent incorrectly portends that our decision
will result in make-whole remedies for discharges
prompted by all sorts of outlandish, even criminal, be-
havior that possibly could occur during an unlawful
Weingarten interview. Our decision does not alter the
well-established principle that the Board’s make-whole
remedy is not available for conduct that is objectively
“so egregious as to take it outside the protection of the
Act, or . . . render the employee unfit for further service.”
Richmond District Neighborhood Center, 361 NLRB No.
74, slip op. at 2 (2014) (internal quotation marks and
citations omitted); see also C-Town, 281 NLRB 458, 458
(1986) (Board may withhold the traditional make-whole
remedies of reinstatement and backpay “in those flagrant
cases in which [an employee engages in post-discharge]
misconduct . . . of such character as to render the em-
ployee unfit for further service” (internal quotation marks
and citations omitted)).11
In sum, neither Taracorp nor Section 10(c) prohibits
the Board from ordering a make-whole remedy where, as
here, the employee’s discharge may have been caused, at
least in part, by conduct that would not have occurred but
for the employer’s violation of the employee’s
Weingarten right. Such relief is not only within the
Board’s “broad” remedial discretion under Section 10(c),
NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344,
346 (1953), but is necessary to “restore as nearly as pos-
sible the situation that would have prevailed but for the
unfair labor practices.” State Distributing Co., 282
NLRB 1048, 1048 (1987).
Whether a make-whole remedy is appropriate in this
case, however, depends on whether the Respondent, in
discharging Smith, relied, at least in part, on Smith’s
behavior during the two unlawful interviews. Smith par-
ticipated in several interviews, both lawful and unlawful,

11 Contrary to the partial dissent, the limiting principle set forth
above does not presume that an employee is engaged in protected activ-
ity during an unlawful Weingarten interview. As C-Town and other
postdischarge cases make clear, the Board’s consideration of whether
an employee’s conduct has rendered that employee unfit for further
service is not limited to circumstances where the purported misconduct
is part of the res gestae of protected activity.
during the investigatory process. In finding that Smith
was discharged for his dishonesty and inconsistency dur-
ing “various interviews,” the judge did not identify
which of the interviews gave rise to the misconduct for
which Smith was discharged. The Respondent contends
that all of the inconsistencies that formed the basis for
Smith’s termination were either disclosed for the first
time via lawful sources and repeated during one or both
of the unlawful interviews, or were not discussed at all
during those interviews. The General Counsel, mean-
while, points to record evidence showing that the unlaw-
ful interviews were the original source of at least five of
the discrepancies cited in the Respondent’s June 18 per-
sonnel review of Smith prior to his termination. Absent
a specific finding on this question, the Board cannot de-
termine whether a make-whole remedy of backpay and
reinstatement is warranted, or whether the more limited
cease-and-desist and notice-posting remedies are appro-
priate.
Accordingly, we remand this case to the judge to first
determine whether Smith’s discharge was based, at least
in part, on his conduct during one or both of the unlawful
interviews. If the judge so finds, the Respondent will
bear the burden of showing that it would have discharged
Smith regardless of any conduct during the two unlawful
interviews. If the Respondent succeeds in establishing
that it discharged Smith for reasons independent of his
conduct during the unlawful interviews, then a make-
whole remedy is inappropriate. If, however, the Re-
spondent fails to make this showing, then the judge must
order the Respondent to make Smith whole, including
backpay and reinstatement, consistent with our decision
today.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
Orders that the Respondent, E.I. DuPont de Nemours &
Co., Inc., Buffalo, New York, its officers, agents, succes-
sors, and assigns shall take the action set forth in the Or-
der, subject to potential modification of the remedy fol-
lowing remand.
IT IS FURTHER ORDERED that this proceeding is re-
manded to Administrative Law Judge Steven Davis for
further appropriate action as set forth above.
IT IS FURTHER ORDERED that the judge shall afford the
parties an opportunity to present evidence on the re-
manded issues and shall prepare a supplemental decision
setting forth credibility resolutions, findings of fact, con-
clusions of law, and a recommended Order. Copies of
the supplemental decision shall be served on all parties,
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
after which the provisions of Section 102.46 of the
Board’s Rules and Regulations shall be applicable.
Dated, Washington, D.C. May 29, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER JOHNSON, dissenting in part.
I agree with my colleagues that the Respondent twice
unlawfully denied employee Joel Smith’s request for
Weingarten representation during investigatory inter-
views. The appropriate remedy for this Section 8(a)(1)
violation is a cease-and-desist order. As for Smith’s dis-
charge, the only question that should be asked is whether
the discharge was motivated, at least in part, by his pro-
tected request for representation. Undisputedly, it was
not. Under longstanding law set forth in Taracorp, Inc.,
273 NLRB 221 (1984), Smith is not entitled to a make-
whole remedy of reinstatement and backpay. My col-
leagues, however, remand this case to the judge with
instructions to apply an evidentiary standard for deter-
mining Smith’s entitlement to a make-whole remedy of
reinstatement. This remand cannot be reconciled with
the Board’s holding in Taracorp. I vigorously dissent
from what is effectively a partial return to the discredited
Kraft Foods standard that courts of appeals criticized and
the Taracorp Board justly overruled on statutory and
policy grounds.
My colleagues attempt to distinguish Taracorp on fac-
tual grounds, and they are correct that the alleged
discriminatee in that case was discharged for conduct
that occurred prior to the unlawful denial of Weingarten
rights, rather than for conduct that occurred during an
interview after the Weingarten violation. However, that
is a distinction without legal significance. Illinois Bell
Telephone1 is instructive on this point. In that case, al-
leged discriminatee Hatfield was unlawfully denied
Weingarten representation. During the ensuing inter-
view, she confessed to making personal telephone calls
without paying for them and to improperly adjusting the

1 Illinois Bell Telephone Co., 251 NLRB 932, 933 (1980), enf. de-
nied and remanded in relevant part 674 F.2d 618 (7th Cir. 1982), sup-
plemented 275 NLRB 148 (1985), enfd. sub nom. Communications
Workers Local 5008 v. NLRB, 784 F.2d 847 (7th Cir. 1986).
timing of certain collect calls. She was discharged for
this misconduct, and the Board originally provided a
make-whole remedy under Kraft Foods.
On review, the Seventh Circuit noted that the Re-
spondent had discharged Hatfield for cause and remand-
ed the case with instructions that the Respondent should
be permitted to show whether it had evidence of Hat-
field's misconduct, independent of that which was ob-
tained during the illegal interview. A hearing was held
and an administrative law judge found that the Respond-
ent failed to produce any credible evidence of Hatfield’s
misconduct independent of the interview. He therefore
found that Hatfield would not have been fired but for her
participation in the interview and under Kraft Foods was
entitled to a make-whole remedy.
By the time the Board reviewed the judge’s supple-
mental decision, it had issued the Taracorp decision,
specifically overruling both Kraft Foods and the relevant
part of the prior Illinois Bell decision.2 Accordingly,
without disputing the judge’s determination that Hatfield
would not have been fired but for information obtained
during the interview conducted after denial of her
Weingarten rights, the Board found that she was not enti-
tled to make-whole relief. Specifically, the Board stated
“Hatfield's discharge resulted from her alleged miscon-
duct and not from the Respondent's denial of her request
for a representative. Accordingly, there is an insufficient
nexus between the violation committed and the reason
for the discharge to warrant a make-whole remedy.”3
To the extent that my colleagues would draw an even
finer line of factual distinction to validate their remand
here—i.e., that unlike the cases discussed above, the Re-
spondent here relied on misconduct during the interview
that was unrelated to the misconduct that triggered the
investigation—even that distinction is meaningless in
light of the express language and rationale of Taracorp.
The Board there stated that “in Weingarten cases, the
reason for the discharge is not an unfair labor practice,
but some type of employee misconduct. In short, there
simply is not a sufficient nexus between the unfair labor
practice committed (denial of representation at an inves-
tigatory interview) and the reason for the discharge (per-
ceived misconduct) to justify a make-whole remedy.”4

2 Taracorp, 273 NLRB at 222 fn. 6.
3 Illinois Bell, 275 NLRB at 148; see also Montgomery Ward & Co.,
273 NLRB 1226, 1227 (1984), enfd. mem. 785 F.2d 316 (9th Cir.
1986) (make-whole remedy found inappropriate under Taracorp for
employee discharged based on confession obtained during unlawful
interview); Massillon Community Hospital, 282 NLRB 675, 677 (1987)
(same).
4 273 NLRB at 223.
7
E.I. DUPONT DE NEMOURS & CO.
Contrary to my colleagues and the analyses in the
nonprecedential Division of Advice memoranda cited by
the General Counsel, Taracorp clearly does address the
factual situation presented here and is not amenable to
any reasonable interpretation that a make-whole remedy
could in any circumstances be based solely on a nexus
between the Weingarten violation and unprotected mis-
conduct that is an otherwise valid reason for the dis-
charge, regardless of whether that misconduct occurred
prior to or during the unlawful investigatory interview.
As the Board stated in a subsequent decision, “To clarify,
the Board does not order make-whole remedies for the
denial of employees' Weingarten rights. Taracorp, Inc.,
273 NLRB at 223. The appropriate remedy for a
Weingarten violation is an order requiring the employer
to cease and desist from further such violations and to
post a notice to that effect. Id. at 224. A make-whole
remedy is appropriate only if the General Counsel can
prove an additional violation.”5 Consistent with this
rationale, there must be a showing that the discipline was
based, at least in part, on the protected request for
Weingarten representation,6 or on other conduct that
cannot be deemed misconduct under the Act, or results
from an act that was itself an independent unfair labor
practice, such as an unlawfully implemented layoff,7 an
unlawful work rule,8 or an unlawfully motivated investi-
gation.9 This case does not involve any of those scenari-
os.
My colleagues strive to portray Joel Smith in a sympa-
thetic light,10 but none of that has any bearing on the le-
gal issue presented, nor can it be the basis for limiting the
scope of their remedial determination to the facts of this
case. As far as their legal nexus test goes—and it goes
quite far—any employee will be entitled to reinstatement
and backpay if discharged for misconduct that “occurred
after the denial of the Weingarten rights and during, as

5 Barnard College, 340 NLRB 934, 936 fn. 12 (2003) (emphasis in
original).
6 Taracorp, 273 NLRB at 223 fn. 12.
7 E.g., Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203,
217 (1964), cited for this proposition and expressly distinguished from
Weingarten violations in Taracorp, 273 NLRB at 222-223,
8 See generally Continental Group, Inc., 357 NLRB No. 39 (2011).
Accordingly, if the alleged “misconduct” at issue in an unlawful
Weingarten interview is shown to be based on what is itself an unlawful
rule, a make-whole remedy may be appropriate.
9 E.g., Supershuttle of Orange County, Inc., 339 NLRB 1 (2003),
and Kidde, Inc., 294 NLRB 840, 840 fn. 3 (1989).
10 In describing Smith’s 2012 accident and the investigatory inter-
views that led to his discharge the factual narrative in the plurality
opinion mentions that Smith’s 2012 accident occurred during a “hot
and difficult nighttime shift,” he was inexperienced in performing the
assigned work, and he missed taking his diabetes medicine as a result
of one investigatory interview.
opposed to before, the unlawful interview.” There is no
limiting principle that would permit a different result if
the employee were a loathsome character or if the mis-
conduct causing the discharge was heinous or even crim-
inal. For instance, if Smith had become angry and
punched a supervisor during his unlawful interviews, he
would nevertheless be entitled to a make-whole remedy
because the denial of union representation may have cre-
ated the circumstance that led to the misconduct.11 It is
not even clear that my colleagues’ rationale stops there,
or whether it would extend to the disclosure of previous-
ly unknown misconduct, such as theft of company prop-
erty or the sale of drugs, during an unlawful interview
investigating unrelated misconduct. In this respect, the
result here is a partial restoration of the “fruit of the poi-
sonous tree” policy that invites renewal of judicial criti-
cism and flies in the face of the Taracorp Board’s con-
cern that “What began as a limited protection of employ-
ees and a potential guide to management in conducting
fair and expeditious investigations of employee miscon-
duct has become a labyrinth of rules and procedures
analogous to the law of criminal procedure.”12
In sum, there is not, and should not be, any basis for
interpreting the extant law set forth in Taracorp as per-
mitting a make-whole remedy based solely on a denial of
Weingarten representation rights. The judge here cor-
rectly came to this conclusion in rejecting the General
Counsel’s request for this remedy. I would affirm the
judge, and I dissent from my colleagues’ failure to do so
consistent with the requirements of clearly controlling
precedent.

11 My colleagues’ statement of the motivational test to be applied on
remand directs “the judge to first determine whether Smith’s discharge
was based, at least in part, on his conduct during one or both of the
unlawful interviews. If the judge so finds, the Respondent will bear the
burden of showing that it would have discharged Smith regardless of
any conduct during the two unlawful interviews.” (Emphasis added.)
This statement of the test, and its but-for logic, do not indicate any
exception relating to the nature of the interview misconduct. Neverthe-
less, my colleagues assure that adherence to precedent holding that
certain conduct may be objectively so egregious as to lose the Act’s
protection would limit the entitlement to a make-whole remedy for
employees who engage in such misconduct during an unlawful inter-
view. Apart from the analytical dissonance of this claim—which in-
cludes the mistaken presumptions that the mere fact of participation in
an unlawful interview is protected activity and that the employee’s
misconduct is caused by the interview—I question the efficacy of this
supposed limitation in light of the Board’s recent disinclination to find
almost any misconduct to be so egregious. See my dissents in Pier
Sixty, LLC, 362 NLRB No. 59, slip op. at 4 (2015), Jimmy John’s, 361
NLRB No. 27, slip op. at 10 (2014), and Plaza Auto Center, Inc., 360
NLRB No. 117, slip op. at 15 (2014). At the very least, as my col-
leagues make clear in this case, dishonesty during an unlawful inter-
view will not be found sufficiently egregious.
12 273 NLRB at 223.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dated, Washington, D.C. May 29, 2015
______________________________________
Harry I. Johnson, III, Member
NATIONAL LABOR RELATIONS BOARD
Jesse Feuerstein, Esq., for the Acting General Counsel.
Michael R. Moravec, Esq. (Phillips Lytle LLP), of Buffalo,
New York, for the Respondent.
Catherine Creighton, Esq. (Creighton, Johnsen & Giroux,
Esqs.), of Buffalo, New York, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed by the United Steelworkers, Local 6992 (Union) on
October 4, 2012, a complaint was issued against E.I. DuPont de
Nemours & Co., Inc. (Respondent or Employer) on February
12, 2013.
The complaint, as amended, alleges that in violation of Sec-
tion 8(a)(1) of the Act, the Respondent denied the request of its
employee Joel Smith to be represented by the Union during an
interview which began on May 24, 2012, and which continued
on June 1, 2012.1 The complaint alleges that Smith had reason-
able cause to believe that the interview would result in discipli-
nary action being taken against him.
The complaint also alleges that on about May 24, and con-
tinuing on June 1, the Respondent conducted the interview with
Smith even though the Respondent denied Smith’s request for
union representation. Finally, the complaint alleges that the
Respondent terminated Smith for conduct in which he engaged
during the interview.
The Respondent’s answer denied the material allegations of
the complaint, and on April 15, 2013, a hearing was held before
me in Buffalo, New York. Upon the evidence presented in this
proceeding, and my observation of the demeanor of the wit-
nesses and after consideration of the briefs filed by the Acting
General Counsel2 and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent, a corporation having its office and place of
business in Tonawanda, New York, is engaged in the manufac-
ture of chemical products. Annually, the Respondent purchases
and receives at its Tonawanda, New York facility, goods valued
in excess of $50,000 directly from points outside New York.
The Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. The Respondent also admits, and I find that
the Union is a labor organization within the meaning of Section

1 All dates hereafter are in 2012, unless otherwise stated.
2 Hereafter, the Acting General Counsel shall be referred to as the
General Counsel.
2(5) of the Act.
II. THE FACTS
Smith has been employed for 7 years at the Yerkes plant. He
is a special projects operator in the tedlar department in which
he processed a liquid mix into film. The process includes the
mix being subject to temperature changes, its being pulled
through a series of wipers which dry it by removing water and a
chemical called DMAC, and then the film is cut and stretched,
and placed in an oven. The film goes onto a vacuum roll which
holds it taut. The wind up operators attach the film to a waste
roll, the operators cut the trim off and cause knives to cut part
of the film. The detached area is taken down three stairs to a
pit where a trim puller takes the film and it is then placed in a
vacuum tube where it then is transported to a different area.
Occasionally, the film breaks during this process. At those
times, an alarm bell rings and the wind up operators must “hus-
tle” in responding “as fast as [they] can.” After responding
they have to enter the pit.
A. Smith’s 2011 Injury
In May 2011, Smith slipped on a wet floor and fell, injuring
his chest and knee. He did not file a Workers Compensation
claim and lost no time at work. He reported the injury and an
investigation was conducted by Cheri Park, a safety specialist
whose job it is to investigate accidents. Smith stated that Park
interviewed him and they visited the area of the accident, and
Smith explained the incident to her. Park denied visiting the
site of the accident with Smith.
Smith was given a “Corrective Action Document” entitled
“unsatisfactory job performance and violation of serious acts of
misconduct.” It cited four findings: that Smith was insubordi-
nate in that he failed to comply with management’s instructions
not to work in the specific area; his job performance was unsat-
isfactory in that he failed to complete his sit down assignment
in a timely manner and failed to provide a written list of ideas
to improve production of low volume products; he was dishon-
est by hindering the investigation by originally stating that the
solvent on the floor was a small amount, but then admitting that
he spilled one to two gallons of solvent; and that he did not
report his injury immediately, as required. The letter concluded
that Smith’s performance was unsatisfactory, and warned that it
was “imperative that you demonstrate sustained satisfactory
performance in all aspects of your job. You need to understand
that this write up is serous and that it is expected that all areas
of your job performance remain satisfactory. . . . Failure to
comply with these terms could result in further corrective ac-
tion.” (Emphasis in original.)
B. Smith’s 2012 Injury
Smith’s regular job was that of a special projects operator.
In September 2011, he was assigned to work as a wind up oper-
ator, a completely different type of job. He was trained as s
wind up operator for 3 to 4 months, and worked in that job title
only two to three times for a maximum of 45 minutes per shift
over a period of 1 month. He worked in that position to relieve
other wind up operators while they took their breaks. He was
then returned to his regular job as a special projects operator for
a period of 2 to 3 months, and then worked in a different area,
9
E.I. DUPONT DE NEMOURS & CO.
and finally was assigned to work again as a wind up operator.
He received no additional training in the wind up area before
this assignment, and mentioned his concern about being inexpe-
rienced to his Supervisor Michael Szymanski.3 Nevertheless,
Smith began work on May 23 in the 7:30 p.m. to 7:30 a.m.
shift.
Just prior to the beginning of that shift, Szymanski met with
Smith and his coworkers, wind up operators Dave Riester4 and
Tim Eberle and reviewed the night’s tasks.
Supervisor Szymanski stated that the sheet of film broke
about 30 times during Smith’s worktime, which was more than
the usual number. Smith was required to descend three steps
into the pit “constantly” or at least every 30 minutes and look
up at the passing sheet in order to observe any defects in the
film.
At about midnight, while Smith was in the pit, the film
broke. He responded to the alarm by attempting to ascend the
stairs. He put his foot on the first step and it slid off. He threw
his arms forward to break his fall and hit his knee against the
stair. He continued to work after the fall. He then noticed a red
stain on the film and discovered that it was his blood which was
coming from a small cut on his arm. He removed the three
pairs of gloves he was wearing at the time. He threw out the
cotton gloves with which he wiped the blood, and removed his
other gloves.
Smith then went to Szymanski’s office, but Szymanski was
not present. Smith stated that he then went to the breakroom
where he wiped the blood from his arm and applied a band aid
to his arm. He stated that he had band aids in his lunchbox. He
stood at the exit door for some fresh air, and told Riester and
Eberle, who approached him, that he hurt his knee. Smith then
returned to Szymanski’s office and told him that he hurt his
knee, explaining that it felt that it was swollen five times its
normal size and was “throbbing.” He also told Szymanski that
he had been bleeding and Szymanski noted that Smith was
wearing a band aid.
Smith showed his knee to Szymanski who testified that he
did not see any swelling but gave Smith an ice pack, which he
applied to his knee. Then, for the first time, Smith felt severe
pain in his shoulder and applied the ice pack to that area, telling
Szymanski that his shoulder hurt worse than his knee. Szyman-
ski asked if he wanted to go to the hospital and Smith declined.
He went to the breakroom, and remained there for about 30
minutes during which time his shoulder pain became worse.
He then told Szymanski that he wanted to go to the hospital.
Szymanski drove him to the main gate where a taxi took him to
the hospital. The physician took x-rays and advised that Smith
should see an orthopedist. Szymanski drove him back to the
plant.
Szymanski testified that, before Smith returned to the plant,

3 Szymanski denied that Smith expressed any concern about his abil-
ity to perform his work.
4 Dave Riester’s name was also variously spelled Reister throughout
the documents received in evidence and in the transcript. I have used
the name he gave at the Workers Compensation hearing. Since he
testified there, that is probably the most accurate spelling of his last
name.
he (Szymanski) phoned Barb Pilmore, the Tedlar area superin-
tendent who is his supervisor, and told her that Smith fell and
was injured. Szymanski then went to the area of the accident
and did not see any liquid on the floor. Pilmore, who did not
testify at this hearing, testified at the Workers Compensation
hearing that when she heard that Smith had slipped due to
something wet on his shoe and had hurt his knee and shoulder,
“it was suspicious to me because it was exactly the way he
described an injury that happened to him a year before, so I
immediately was suspicious about it just because of the way the
injury was described to me.”
The Respondent’s witnesses testified that, whenever there is
an injury at the plant, an investigation must take place as possi-
ble thereafter. The purpose of the investigation is to learn what
happened and identify the causes, thereby preventing a reoccur-
rence of the accident. Such an investigation includes a careful
chronological history of how the accident occurred and whether
it was caused by a failure of systems, equipment, materials, or
human error. Smith conceded that the Employer’s safety de-
partment always conducts an interview concerning the cause of
an accident.
Pursuant to this protocol, an investigation was begun with
Szymanski asking Smith certain questions about the accident.
Szymanski testified that he and Smith went to the pit area to-
gether and Smith demonstrated how he fell. Smith denied re-
turning to the area with Szymanski that night.
Szymanski’s notes of his conversations with Smith on May
24 stated that Smith told him that he was working with the
vacuum roll and standing on wet film when he slipped on the
first stair and fell. Smith told him that he and Riester were
working in the pit; Smith told the medical department that the
“floor was wet—a lot of film breaks—foot slipped off the stair
because of water—place was soaked—water was everywhere”;
that neither he nor Riester saw any “objective signs of the inju-
ry”; Szymanski saw band aids on Smith’s right arm with some
evidence of blood on the band aid. Smith told the medical de-
partment nurse that when he fell he jammed his arms and left
shoulder and heard something pop in his left shoulder.
Szymanski asked Smith to report to the Respondent’s medi-
cal department, which he did at about 6:45 a.m. He told medi-
cal assistant, Shannon, what happened and then Nurse Charlene
entered. They asked how the accident happened. They asked if
the floor was very wet and Smith said it may have been. The
nurse examined his shoulder, and told him that Cheri Park, the
safety specialist, wanted to see him.
C. The May 24 Meeting and the Request for
Union Representation
Smith stated that at about 8:30 a.m. on May 24, he met with
Park, Pilmore, and Szymanski in a conference room, and that
before he sat down he said “I’d like a union representative with
me.” Smith testified that he asked for a union agent because his
interview with Park 1 year earlier “contributed” to his disci-
pline at that time.
Szymanski quoted him as saying “do I need a union repre-
sentative for this?” and that he or Park replied “no, we are just
doing a regular, standard investigation.” The Respondent’s
answer to the complaint admitted that Smith was told that he
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
“did not need union representation and denied his request.” No
union agent was asked to join the conversation and the inter-
view continued without a union representative being present.5
Smith was asked questions by Park and Pilmore. The ques-
tions included a chronology of events leading up to the accident
and its aftermath. They asked where he was and what he was
doing at the time of the accident; did anyone see him fall; was
he wearing his personal protective equipment; was the floor wet
or dry; how did he fall; whether his shoes were wet; whether he
used the handrails to climb the stairs? Smith answered that the
floor was wet at times during his shift, but that he could not
recall whether it was wet at the time of the accident.
After each answer, Park wrote Smith’s response on a flip
chart, an erasable board. She then asked Smith whether his
version of his answer was correct. If not, she revised what she
wrote. Then another question would be asked.
The answers were transcribed from the flip chart onto a
computer. They included a time-line of the events beginning
with the start of the shift. They stated that at about midnight,
Smith was in the pit with Riester, and at 12:35 a.m. his right leg
slipped off the pit stair, noting that there was “nothing on the
stair; possibly wetness from trim on shoe; wet film on floor;
floor surface was dry; arms went out to catch himself while
falling forward; noticed blood on sheet from arm; right arm;
kept working; grabbed a paper towel to wipe arm. At 12:45
a.m. reported to Szymanski’s office; showed Mike his knee—
throbbing; iced knee—took ice and placed it on shoulder and
discussed what happened. A notation stated that his shoes were
“fairly new.”
Smith testified that the questions asked at the meeting were
the same as those posed by Szymanski during the 1-1/2 hour
meeting earlier in his office, and Szymanski testified that Smith
gave the same answers at the meeting as he had given to Szy-
manski. Smith testified that the questions, which were the
same but phrased differently each time, were posed by Park one
right after the other. He stated that he had the impression that
Park was “trying to trick me into saying something.” Pilmore
asked him about wet trim being on the floor, and if he saw pud-
dles or tripping hazards on the floor.
Smith testified that he felt “very antsy,” was shaking inside,
and was uncomfortable. He was upset at her asking the same
questions “over and over again in different ways.” He tried to
hold his temper despite his getting agitated, and attributed his
feeling this way possibly to his exhaustion, and that he had not
yet taken his diabetes medication. His arm was very sore and at
8:30 a.m. he told Szymanski and Park that his shoulder was
very painful and that he wanted to go home. Szymanski and
Park denied that Smith appeared agitated or frustrated.
After the meeting, Park and Pilmore met with Riester and

5 Jim Briggs, the Union’s representative who serviced the plant for
more than 10 years, testified that he informs employees that they should
ask for union representation if they are injured on the job. He also
advises the shop stewards to meet with the employee and investigate
the matter before the injured worker is interviewed by the Employer.
Park testified that she conducted 10 to 15 investigations involving
employee accidents and none of the workers involved requested union
representation.
Eberle and asked them what happened. Thereafter, Smith was
seen by an orthopedic surgeon who recommended surgery.
Smith returned to work on light duty, meaning that he sat in the
breakroom for his entire shift.
That afternoon, Sharon Laskowski, the safety, health and en-
vironmental manager who was Pilmore’s supervisor, emailed
Park and Pilmore, stating that she had reviewed the flip charts
and interactions with the medical department, and suggested
areas for follow up:
With the shift crew: whether water was “everywhere” as
Smith allegedly told the medical department, were Band Aids
on his arm prior to the incident, the exact locations of all indi-
viduals during the shift, witnesses to the accident, and
With Smith: what he did with the bloody paper towel, why he
did not report the incident when he saw blood, where he ob-
tained the Band Aids, the condition and type of tread on his
shoes (visual check please), confirm whether there were hand-
rails on the stairs, and if so ask Smith if he used them, what
personal protective equipment he wore at the time of the inci-
dent.
Later, Pilmore and Park interviewed Eberle, Riester, and
Craig Moeller about the accident. They were asked about the
wet condition of the floor, Smith’s band aids, and their
knowledge of the accident. Park took notes which mainly con-
sisted of a chronology of the events relating to the accident.
According to the notes, Riester related that he noticed two
band aids on Smith’s arm at the 8:15 p.m. meeting with Szy-
manski; he noticed that Smith was having a “hard time” and
was sweating and tired, and Riester assisted him because of his
difficulty; Riester believed that Smith was not properly quali-
fied to perform that job; Riester noted that wet trim was on the
floor, but that the film was not dripping; he did not see any
puddles; Riester did not see Smith fall; Smith told Riester that
he hurt his knee and that it was swollen five times the normal
size; he did not see Smith bleeding; Riester was with Smith and
Szymanski when Smith displayed his knee but he did not see
any evidence of an injury or swelling.
The interview with Eberle revealed that Eberle also saw
Smith wearing two band aids on his arm during the meeting
before the accident, and when he saw Smith limping, asked him
what happened and was told “nothing, I have a bad knee.”
Eberle saw no bleeding. Moeller’s interview produced no in-
formation relating to the accident.
Laskowski testified that she was “concerned” after reading
the chronology, and wanted more information concerning
Smith’s shoe treads, what protective equipment he wore, and,
because blood had been involved, she wanted to learn where
the blood went, did it contaminate anything and was it cleaned
up properly. Accordingly, she wanted to ask Smith some more
questions.
D. The June 1 Meeting
On June 1, Smith was told to attend a meeting. The session
took place in Pilmore’s office where Laskowski was also pre-
sent.
Smith did not ask for union representation at that meeting
because, he testified, he asked for a union representative at the
11
E.I. DUPONT DE NEMOURS & CO.
first meeting on May 24, and was refused. Accordingly, he
believed that another request would be futile. Nevertheless, he
testified that he was fearful that this meeting could result in
discipline based on his experience the prior year when a meet-
ing with Park led to his receiving a disciplinary warning.
Smith stated that during the 1 hour meeting, Laskowski
asked many questions, many of which were the same as asked
of him at the May 24 meeting but were posed in different ways.
Additional questions were asked about how he disposed of the
bloody glove, where he put it, and did he know that it should
have been placed in a biohazard bag. Laskowski also asked
about the condition of his shoes.
Szymanski entered the meeting as it was ending when the
participants were speaking about the shoes and sleeves that
Smith wore at the time of the accident. The removable sleeves
are made of butyl rubber to protect the wearer. Szymanski was
asked to look at Smith’s shoes and sleeves. Szymanski exam-
ined Smith’s shoes which were in a locker and reported that
they were in new condition with the tread being new and dry.
He located many sleeves but could not find any with Smith’s
initials or name on them. Szymanski testified that Smith said
that his initials were on the sleeves.
After the meeting, Laskowski sent an email to Pilmore and
Anthony Casinelli, a manager, advising that she and Pilmore
met with Smith, and that she asked him what personal protec-
tive equipment he had been wearing; the condition of the tread
on his shoes; she asked him for clarification regarding the type
of pit he stood in; whether there were handrails on the steps in
the pit (answer: he did not know); whether he recalled using
them (answer: probably not); whether anyone was in the pit
with him (answer: he did not know); asked for a description of
how he fell (answer: his foot was probably wet from standing
on wet film and he slipped on the first step); Laskowski wrote
that he did not offer that his arms were extended when he fell or
that he caught himself; Laskowski also wrote that Smith “con-
firmed” that the floor was not wet from water, and that she
asked him several times and he answered that he was sweating
profusely but water was not on the floor. Laskowski noted that
Smith said that when he fell, something cut through his butyl
sleeve, and he did not know where the sleeve was.
One hour later, Pilmore sent an email to Laskowski, advising
of some “oddities” including that Smith had not mentioned that
he was wearing butyl sleeves before the meeting that morning,
or that there was a tear in it caused by his fall. She also men-
tioned a discrepancy that, in the prior week, Smith said he was
removing a wrap from the vacuum roll, but that morning, told
them that he was pulling bad film from the good roll. Pilmore
questioned why he would be wearing butyl sleeves for either
task, concluding “nothing big, but a couple more little things
that just don’t make sense.”
E. The June 11 Meeting
Another hour-long meeting took place on June 11. Present
were Szymanski and Paul Szulist, the head of special projects.
The Respondent brought in Union Representative Mark
Khoury. Smith stated that the meeting began immediately with
Szulist’s “accusations” that there were “discrepancies” in his
answers at the prior meetings. It was asserted that two band
aids had been on Smith’s arm before the accident, specifically
that Smith entered the plant that day with a band aid on his arm.
Szulist claimed that at the meeting with Szymanski just prior to
the start of the shift on May 23, Smith had a band aid on his
arm which was seen by Szymanski, Riesert, and Eberle.6 Smith
denied that claim. Szulist repeated that there were discrepan-
cies in Smith’s story in the prior meetings.
As testified by Szymanski, Szulist also claimed that Smith
had been told when he was hurt last year that he must stop work
and report the injury immediately. Szulist asked why Smith
had not done that after his current injury. Smith replied that he
wanted to continue to work, and would report it later. Szulist
also claimed that neither Szymanski, Riesert, nor the hospital’s
personnel noticed that Smith’s knee was swollen, and asked
Smith if he reported that fact. Smith answered that the ice pack
brought the swelling down before he arrived at the hospital.
Szulist asked about whether there was water on the floor of the
pit.
Szymanski testified that at about the time of this meeting,
Pilmore told him that she was “immediately suspicious” of
Smith’s injury, indeed, Szymanski stated that, although he was
not suspicious of Smith because he did not know him, he be-
lieved that “everything didn’t match,” meaning that Smith’s
answers to Szulist’s questions did not match what Szymanski
had seen and heard from Smith immediately after the accident.
However, Szymanski conceded that what Smith told him on the
night of the accident was the same as he told Pilmore and Park
the next morning.
Szulist took notes of the nine questions asked of Smith and
the answers given by him.7 The questions were ostensibly for
the purpose of clarifying statements Smith made in prior inter-
views. The questions were not simply asked and replies re-
ceived. Rather, Szulist challenged Smith’s answers, occasion-
ally causing him to change his answer. The questions and an-
swers as written by Szulist are as follows.
Smith was confronted with his comment during the safety
investigation that he cut his arm when he fell and applied band
aids which he had in his lunchbox, but at a shift meeting later
that night he was seen with band aids on. “Please explain.”
Smith answered that he attended no earlier meeting, and when
Szymanski said that there was a meeting, Smith “still eluded
the question,” when Smith denied having a break that evening,
he was challenged and then admitted to having a break. Later,
Smith was asked whether he was wearing band aids when he
visited the Employer’s medical department in the morning.
Smith replied that he was not certain but must have had them
on, then maybe he was not wearing them, but was not certain.
Smith was reminded that he said that his knee struck the
steps, and Szulist said that there was no bruising or abrasions
on his knee or leg . . . “how do you explain this?” Smith re-
plied that his knee was swollen and red and he showed it to

6 Riesert and Eberle were interviewed by the Respondent and stated
that they saw Smith wearing the band aids during the meeting. Neither
man testified here. A videotape of Smith’s arrival at the plant that day
show that he was wearing no band aids or bandages on his arm at that
time.
7 GC Exh. 6.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Szymanski. Szymanski denied seeing any signs of redness or
swelling. Szulist mentioned that Smith said that his knee was
swollen to five times its normal size but there was “no observed
swelling” and when he saw the Employer’s medical department
and hospital physician, “your issue was your shoulder. Please
help me understand the differences.” Smith answered that the
swelling was reduced because ice was applied before he went
to the hospital, and that he told Szymanski that his shoulder
hurt also. Szulist also asked him how much blood dripped from
his wound and what he did with the film which had blood on it.
Smith replied that there were only one to two drops of blood on
the film, and that he wiped it off with his glove and threw the
glove in the garbage. Szulist asked if that method of disposal
was “standard practice.” Szulist also asked Smith to again
explain the circumstances of the blood stain. Szulist asked why
he threw the butyl gloves out. Smith said that he threw his
cotton gloves out but retained his butyl gloves. Szulist said
“that isn’t what he first told me and he said that that is what
happened.”
Szulist asked Smith “initially you stated that you were pull-
ing film off from the vacuum roll. Later you stated that you
were moving bad film from a good roll. What were you really
doing at the time of the incident?” Smith answered, and then
said that there were so many things occurring that evening that
it was hard to remember exactly what happened. Smith said
that he did not know whether another employee was in the pit
with him, but then Szymanski noted that Smith told him that
night that Riester was in the pit with him. Smith said that he
did not remember whether Riester was with him.
Szulist asked how much time elapsed between the time he
noticed blood on the film and the time he reported it to his su-
pervisor. Smith relied that about 15 minutes had elapsed.
Szulist asked why he waited, and reminded him that following
his injury last year he was instructed to immediately report any
injury. Finally, Smith was asked the condition of the floor at
the time of the incident. He said the floor was clear, and there
was no liquid on the floor. Szymanski then reminded Smith
that during their initial interview Smith stated that he was
standing on wet film which probably got on his boots and
caused him to fall. Smith replied that he did not recall.
Szulist’s conclusion was that Smith was “very nervous and
evasive on some of the questions. When challenged on dis-
crepancies of previous statements made during initial investiga-
tions, he stated that he was unsure of which statement was the
correct one.” At the end of the meeting, Smith asked Szulist if
he was being discharged and Szulist replied that he was trying
to understand some of the discrepancies in his statements.
F. The Decision to Discharge Smith
Conni Krysiak, the Respondent’s employee relations super-
intendent, testified that following the meeting with Szulist, as
typically occurs after an investigation is completed if there is
any potential impact on the employee, the “area” (in this case
the Tedlar area) will discuss with her the findings they made.
Pursuant to this process, Szulist and Pilmore, the Tedlar area
superintendent, shared “all of the notes from the investigation
with me.” Krysiak also reviewed the emails, interview notes
and typed flip chart notes.
A written “Personnel Review—Joel Smith Alleged Injury”
dated June 18 was presented at a staff review session attended
by 15 people. The review document stated that Smith was
interviewed on the morning of the incident, and that follow-up
interviews were conducted with a supervisor, two co-workers,
and the Employer’s medical department on the date of the inci-
dent. It stated that “there were multiple inconsistencies in Jo-
el’s own description of the event and with information collected
from others who were involved.”
The review then set forth seven alleged inconsistencies:
1. Smith claimed that his knee was swollen five times larger
than normal, but no knee swelling/injury was observed by su-
pervisor, coworker, Employer’s medical department or hospi-
tal staff.
2. Smith stated that he applied Band-Aids from his lunchbox
following the accident, but two coworkers and his supervisor
noted that Band-Aids were present during a meeting prior to
the accident.
3. Smith said that he had no work breaks, but supervisor and
coworkers stated that he had two work breaks. Smith admit-
ted to having a break. Smith stated that runability was poor
for five hours (multiple film breaks) Computer data indicates
that there was a period of 90 minutes with no film breaks.
4. Smith stated that blood dripped on film and he wiped the
blood with his glove and threw his bloody gloves away, then
stated that he discarded only the cotton gloves. No one saw
blood. When asked if there was a lot of blood, Smith stated
that he did not know.
Smith first told his supervisor he was in the pit with a
coworker but the coworker denied that he was in the pit with
Smith. Smith later said that he was not certain if anyone was
in the pit with him, and then that he could not remember if
anyone else was present.
5. Smith first said that at the time of the accident he was pull-
ing film from a vacuum roll, and then said that he was pulling
bad film off the good roll. When asked about the discrepancy
he said he couldn’t remember.
6. Smith first said that he was standing on wet film and
slipped off a step. Later he told the medical department that
the floor was wet, and water was everywhere. In later inter-
views he stated that the floor was clear and there was no water
or liquid.
7. Smith told his supervisor that his arms went out as he fell
forward and hurt his shoulder. He told the medical depart-
ment that he jammed his arms and heard a pop. In a follow-
up investigation he said he didn’t remember if he landed on
his shoulder and made no mention of extending his arms.
The review document also has a section entitled “other ex-
tenuating circumstances: history of dishonesty from April 11,
2011 incident.” That section states that (a) Smith “hindered”
that investigation by initially claiming that he slipped on a
small amount of solvent on the floor which was discharged in
the course of flushing a new pump. “When questioned and
challenged that the solvent was not there just prior to the inci-
13
E.I. DUPONT DE NEMOURS & CO.
dent and the amount on [the] floor is not reflective of splashing
from a pump cleaning, and showing him the pictures just after
the incident, Smith then admitted that he spilled some solvent
while filling a pail and (b) claimed that he completed his sit
down assignment but had put it in his lunchbox and taken it
home and would bring it in when he returned to work on May
21. When asked for it he said it was in his locker but he could
not produce it even after checking two lockers and his lunch-
box, after which he said it was in a locked locker for which he
had no keys.
Finally the document states that after the 2011 incident he
was told that following an injury he must stop and report to his
supervisor immediately, but after the current 2012 injury he did
not. He was asked if he remembered the advice of 2011. “He
said he did remember, and knew what he was supposed to do,
but stated he chose to continue working because it was his na-
ture to want to complete the job.”
Smith’s misconduct was viewed by the Tedlar area as a vio-
lation of the Employer’s “serious acts of misconduct.” Krysiak
stated that “it’s up to the area to recommend what disciplinary
action to take, and it recommended discharge. Krysiak consid-
ered how serious the violation was and recommended that
Smith be discharged. A staff review which included 15 people,
considered the recommendation, approved it, and the plant
manager also agreed that termination was appropriate. Krysiak
noted that the safety personnel have no responsibility regarding
disciplinary decisions.
Krysiak testified that Smith was fired for falsification. When
asked what the falsification was, she stated that “he didn’t give
complete information or he gave false information, because
there were so many discrepancies in his story that we really
couldn’t figure out what had happened or if anything had hap-
pened. . . . The falsification of company records is his recount
of the events.”
G. The Letter of Discharge
Smith received a letter dated June 21, signed by Krysiak,
which stated that he was terminated, effective immediately, “as
a result of your violating a Serious Act of Misconduct, specifi-
cally”:
7. Falsification of records, data, documents, or other infor-
mation including giving false or incomplete information dur-
ing employment or when applying for employment, or in
connection with management investigations.
Analysis and Discussion
The complaint alleges that in violation of Section 8(a)(1) of
the Act, the Respondent denied Smith’s request to be represent-
ed by the Union during an interview which was conducted on
May 24 and June 1, despite his reasonable belief that the inter-
view would result in disciplinary action being taken against
him. The complaint also alleges that on about May 24, and
continuing on June 1, the Respondent conducted the interview
with Smith even though it denied Smith’s request for union
representation.
H. The Request for Union Representation
The complaint alleges that Respondent denied Smith’s re-
quest to be represented by the Union during an interview which
began on May 24, 2012.
In commenting on the Supreme Court’s decision in NLRB v.
J. Weingarten, Inc., 420 U.S. 251, 262 (1975), the Board stated
in Consolidated Edison Co. of New York, 323 NLRB 910, 910
(1997), that
Weingarten entitled an employee to union representation on
request at an investigatory interview which the employee rea-
sonably believes might result in his being disciplined.
Weingarten therefore requires an employer to evaluate an in-
vestigatory interview situation from an objective standpoint—
e.g., whether an employee would reasonably believe that dis-
cipline might result from the interview.
I credit Smith’s testimony that on May 24 he said “I’d like a
union representative with me.” Even assuming that he did not
make such a specific request, Supervisor Szymanski’s recollec-
tion that Smith asked “do I need a union representative for this”
constituted a proper request for union representation. Szyman-
ski testified that he or Park replied “no, we are just doing a
regular, standard investigation.” The Respondent’s answer
admitted that Smith was told that he did not need union repre-
sentation and denied his request. Assuming that Szymanski
responded that way, or, as the Respondent admits, that he was
told that he did not need a representative, those responses were
not sufficient to allay Smith’s fear of disciplinary action as the
Respondent did not give any reason why he did not need assis-
tance. Lennox Industries, 244 NLRB 607, 608 (1979).
The Board has held that a request necessary to invoke the
Weingarten right to representation is “liberal, and need only be
sufficient to put the employer on notice of the employee’s de-
sire for union representation.” Consolidated Edison, above at
916. Thus, a question to a supervisor “whether he should ob-
tain representation” was held to be sufficient to require the
presence of a union agent. Southwestern Bell Telephone Co.,
227 NLRB 1223 (1977); Illinois Bell Telephone Co., 251
NLRB 932, 938 (1980). I accordingly find and conclude that
Smith made a proper request for union representation at the
investigatory interview concerning his accident.
II. THE WEINGARTEN VIOLATION
I further find that Smith would reasonably believe that the
May 24 interview might result in his being disciplined. He was
disciplined 1 year earlier for another accident involving a fall
and injury. Where an employee had been disciplined before the
interview at issue, it has been held that he had a reasonable
belief that the instant interview might result in discipline. Cir-
cuit Wise, Inc., 308 NLRB 1091, 1109 (1992); Quazite Corp.,
315 NLRB 1068, 1069 (1994). Indeed, Smith testified that he
asked for a union agent because his interview with Park 1 year
earlier “contributed” to his discipline at that time.
Further, inasmuch as Pilmore was “immediately suspicious”
when she heard that Smith had fallen and injured himself, her
evaluation of the May 24 interview from an “objective stand-
point” should have led her to believe that Smith would reason-
ably believe that he would be disciplined for this accident as
well.
The Respondent argues that the May 24 interview was a
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
“preliminary step in a standard accident—not disciplinary—
investigation, and that the purpose of the investigation is to
determine the cause of the accident in order to prevent its reoc-
currence.” I agree, but regardless of the purpose of the investi-
gation, the question is whether Smith reasonably believed that
he would be disciplined as a result of it. Weingarten holds that
union representation is called for in an investigatory as well as
disciplinary interview. It is true that such investigations are
properly required and routinely conducted in the plant whenev-
er an accident or injury occurs. By definition, the investigation
into the cause of the accident is an “investigatory interview”
which requires, upon request, the presence of a union repre-
sentative.
Park testified that no employee requested union representa-
tion in the score of accident investigations that she has been
involved in. The Respondent argues that therefore, none of
those employees reasonably believed that they would be disci-
plined as a result of the investigation. That may be the case,
but Smith reasonably believed that he would be disciplined
following the investigation, and he requested such representa-
tion.
As set forth above, Smith did not request union representa-
tion at the meeting 1 week later, on June 1. He credibly testi-
fied that he believed that it would be futile to do so since his
initial request was denied. In Ball Plastics Division, 257
NLRB 971, 976 (1981), the Board held that an employee’s
request for union representation made at an initial meeting was
sufficient to require the employer to furnish representation at
later meetings. An additional request at the later meeting was
not necessary to invoke the Weingarten right to union represen-
tation. The Board noted that the same supervisor to whom the
initial request was made was present at the later meetings. See
Amoco Oil Co., 278 NLRB 1, 8 (1986). Here, Pilmore was
present at the May 24 and the June 1 meetings. I find that
Smith would reasonably believe that inasmuch as his initial
request on May 24 was denied, that any further request would
similarly be denied.
In addition, it is clear that the June 1 meeting was a continua-
tion of the fact-finding investigative process begun at the May
24 meeting. Thus, as set forth above, after the May 24 meeting,
Park and Pilmore interviewed Riester and Eberle. Later on
May 24, Laskowski became concerned after reviewing the evi-
dence amassed thus far, and asked that certain follow-up ques-
tions be asked of Smith and his coworkers. That prompted the
meeting with her, Pilmore, and Smith on June 1. Following the
meeting, Laskowski, in reporting the details to Anthony
Casinelli, her supervisor, stated that “Barb Pilmore and I met
with Joel . . . to continue the safety investigation re his alleged
slip/fall.” The two interviews were not independent, dealing
with separate incidents or occurrences. They both involved an
inquiry into the May 23 accident and Smith’s actions therein.
It is clear that the responses that Smith gave at the May 24
session prompted the June 1 meeting. The questions posed and
the answers given on May 24 were expanded upon on June 1.
The nature of the sessions was the same—to investigate
Smith’s accident and inquire into the exact course of events.
Thus, this meeting was an investigation which Smith would
reasonably believe would result in discipline. In fact, the in-
formation brought out in this meeting and the May 24 meeting
were later used in the personnel review to provide a basis for
his discharge. It was noted in that report that his interviews in
the morning of the incident and “follow-up interviews with
employee” on June 1 and 11 revealed “multiple inconsistencies
in Joel’s own description of the event . . . .”
I accordingly find that in requesting union representation at
the May 24 meeting, Smith reasonably believed that he would
be disciplined as a result of the interview that day. I further
find that the Respondent violated Section 8(a)(1) of the Act by
not providing Smith with union representation at the May 24
and June 1 interviews, and by failing to discontinue the investi-
gation or giving him the choice between continuing the inter-
view unrepresented or having no interview at all. Postal Ser-
vice, 241 NLRB 141, 141 (1979).
III. THE REQUEST FOR A MAKE-WHOLE REMEDY
The complaint alleges that the Respondent terminated Smith
for conduct in which he engaged during the interview, and the
General Counsel seeks a remedy which would include the rein-
statement of Smith with backpay.
In Taracorp, Inc., 273 NLRB 221 (1984), the Board, in over-
ruling Kraft Foods, 251 NLRB 598 (1980), held that a make-
whole remedy is inappropriate in a case involving a Weingarten
violation. It stated that an employee discharged for misconduct
or any other nondiscriminatory reason is not entitled to rein-
statement and backpay even though the employee’s Section 7
rights may have been violated by the employer in a context
unrelated to the discharge. The Board held that it was “unable
to justify the imposition of a make-whole remedy where an
employer’s only violation is the denial of an employee’s re-
quest for representation at an investigatory interview.” Section
10(c) of the Act precludes the Board from granting a make-
whole remedy to employees disciplined for misconduct uncov-
ered through an unlawfully-conducted investigatory interview.”
Anheuser-Busch, Inc., 351 NLRB 644, 646 (2007).
In Barnard College, 340 NLRB 934, 936 fn. 12 (2003), the
Board stated that it “does not order make-whole remedies for
the denial of employees’ Weingarten rights, citing Taracorp,
above. The appropriate remedy for a Weingarten violation is
an order requiring the employer to cease and desist from further
such violations and to post a notice to that affect. A make-
whole remedy is appropriate only if the General Counsel can
prove an additional violation . . . that [the employees] were
disciplined, at least in part, for asserting their Weingarten
rights.” (Emphasis in original.) A make-whole remedy would
apply only if the employee was discharged for asserting his
right to representation. Here, of course, there is no allegation
and no proof that Smith was discharged for asserting his right
to union representation at the interviews.
Nevertheless, the General Counsel seeks to expand the rem-
edies for Weingarten violations to include a make-whole order,
citing three cases analyzed by the Board’s Division of Advice.8
The Division of Advice recommended that a make-whole order

8 Birds Eye Foods, Case 03–CA–026833 (2010); The Lusty Lady,
Case 19–CA–026979 (2000); National Rehabilitation Hospital, Case
05–CA–024870 (1995).
15
E.I. DUPONT DE NEMOURS & CO.
be sought because the employers’ decision to discharge the
employees was based on their conduct during the unlawfully
conducted interview. I note, of course, that Division of Advice
memoranda are not Board decisions and have no precedential
weight.
The Board has stated that the “meaning of the phrase ‘for
cause’ does not include an inquiry into the source of the em-
ployer’s knowledge of the misconduct.” Cause means the ab-
sence of a prohibited reason. The Board noted that in the
Weingarten cases that the employees were discharged, as here
“based on information obtained during interviews” and engaged
in misconduct for which they were discharged. The Board
concluded by holding that it interprets Section 10(c) to preclude
it from granting a make-whole remedy where the employees
were disciplined for cause, even if the employer learns of the
misconduct though unlawful means.” Anheuser-Busch, above
at 647.
The General Counsel’s reliance on Supershuttle of Orange
County, Inc., 339 NLRB 1 (2003), is misplaced. In that case,
the Board found that the employer’s antiunion animus toward
the employee led to the investigation in which the employee
made false statements which prompted his discharge. The
Board distinguished Taracorp, and held that since this investi-
gation was unlawfully motivated there was a “clear and direct
connection between the employer’s unlawful conduct (its anti-
union animus) and the reason for discipline.” Finally, the
Board stated that the discharge was not based on misconduct
uncovered by the investigation, but rather on misconduct that
was triggered by and elicited during the tainted investigation,
concluding that “there is a direct connection between [the man-
ager’s] antiunion animus and [the employee’s] discharge.” 339
NLRB at 3.
Here, in contrast, there is no evidence that the Respondent
possessed any antiunion animus toward Smith who was dis-
charged for misconduct and for no other reason.
The General Counsel correctly argues that Smith was dis-
charged for dishonesty because he allegedly gave inconsistent
responses to questions asked at his various interviews during
the investigative process. It is clear that the Respondent sought
to question and re-question him about the events at issue. Its
motivation for the several interviews is questioned by Smith
who testified that the Employer sought to take advantage of his
weakened and painful physical condition and “trick” him into
making false statements.
Regardless of the reason for the several interviews, it is clear
that the Respondent used Smith’s different responses to estab-
lish to its satisfaction that his answers were inconsistent. The
General Counsel argues that had Smith’s request for a union
representative been granted, the representative would have
counseled him that he should not answer questions due to his
physical condition or to provide only those answers that he was
certain of. In this regard, the General Counsel cites the Su-
preme Court’s reason for its requirement of union representa-
tion—that “a single employee confronted by an employer on
whether certain conduct deserves discipline may be too fearful
or inarticulate to relate accurately the incident being investigat-
ed, or too ignorant to raise extenuating factors . . . a knowl-
edgeable union representative could assist the employer by
eliciting favorable facts. . . .” 420 U.S. at 262–263.
It is possible that a union representative could have assisted
Smith in this manner. The Respondent argues that any help a
union representative could have provided would not have aided
Smith. Since union representation was not provided, we cannot
know the answer.
I find and conclude that a make-whole order is not appropri-
ate and would be contrary to Board law.
CONCLUSIONS OF LAW
1. The Employer, E.I. DuPont de Nemours & Co., Inc., is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, United Steelworkers, Local 6992, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By denying the request of employee Joel Smith for union
representation during the interviews conducted by the Re-
spondent on May 24 and June 1, under circumstances in which,
at the time of the request, Smith reasonably believed that the
interview might result in his discipline, the Respondent en-
gaged in an unfair labor practice within the meaning of Section
8(a)(1) of the Act.
4. The Respondent has not violated the Act by failing and
refusing to reinstate Joel Smith.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, E.I. DuPont de Nemours & Co., Inc., Buf-
falo, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Requiring any employee to take part in an interview
without union representation, if such representation has been
requested by the employee and the employee has reasonable
grounds to believe that the interview will result in disciplinary
action.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cility in Tonawanda, New York, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since May 24,
2012.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. August 26, 2013

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT require you to take part in an interview without
union representation, if such representation has been requested
by you and you have reasonable grounds to believe that the
interview will result in disciplinary action against you.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights guaranteed
by Section 7 of the Act.
E.I. DUPONT DE NEMOURS & CO., INC.