NLRB and Court Says Lying Out of Desperation to Get a Job is OK

Employee Membrino worked at non-union Pessoa Construction Company—until he attended a union meeting and discussed his employment concerns with a union representative. These meetings are generally protected by Section 7 of the National Labor Relations Act. After losing the impending unfair labor practice charge, Pessoa offered Membrino reinstatement but disputed the amount of back pay awarded to Membrino.

Pessoa contended that the NLRB should have reduced the award due to misrepresentations Membrino made when he sought work after being fired by Pessoa. Specifically, Membrino admitted he lied by holding himself out as “Membrino Trucking” or “Membrino Delivery Services” to cover gaps in his employment, and he failed to disclose periods of time when his commercial driver’s license had been suspended or revoked. Membrino also agreed that he failed to disclose he had a felony conviction for distribution of a controlled substance and possession of a handgun.

While the NLRB basically overlooked Membrino’s lies, on appeal the Fourth Circuit credited his explanation and noted that Pessoa failed to show Membrino’s actions prevented him from obtaining or retaining any jobs. According to the court, “If anything, the misrepresentations inured to the benefit of Pessoa in that they mitigated the earnings losses occasioned by Pessoa’s illegal termination of Membrino under the NLRA.” Feel free to file this ruling alongside the one that allows employees to berate and curse out their supervisors.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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