NLRB Finds Vulgar, Offensive, and Threatening Statements in Context of Union Decertification Protected Activity

In September, the National Labor Relations Board (NLRB) held that an employer engaged in an unfair labor practice when it suspended and discharged an employee for making vulgar, offensive and potentially threatening statements in the workplace. In Fresenius USA Manufacturing (358 NLRB No. 138), a pro-union employee anonymously scribbled vulgar, offensive, and at least in once instance, threatening statements on several union newsletters in an employee break room. There was no dispute that such statements were intended to encourage other employees to support the Union in an upcoming decertification election. Several employees complained about the statements. Accordingly, the Company’s Vice President investigated. The handwriting was recognized to be that of the subject employee, and the Company’s Vice President questioned him about the statements. The employee denied responsibility for the statements. The employee later called the Vice President, mistakenly thinking that he was calling his Union representative, and admitted to writing the statements. When the Vice President identified himself, the employee unsuccessfully tried to deny his identity. Based upon such confirmation of authorship, the Company suspended and ultimately discharged the employee for writing the statements and for falsely denying responsibility for such statements. On review, the NLRB held that the employer lawfully investigated authorship of the comments and lawfully questioned the employee about his role in the statements given the multiple complaints that the comments generated. However, the Board held that the employer violated the National Labor Relations Act by suspending and discharging the employee because such offensive comments constituted protected activity because they were intended to encourage other employees to support the Union in an upcoming desertification election. In so holding, the Board reasoned that the location of the comments favored protection because break rooms are generally appropriate places for distribution of union-related literature and discussion of union-related matters. Additionally, the Board found that the subject matter of the comments favored protection because the employee was exercising his Section 7 right to attempt to re-organize his fellow employees. The Board also concluded that the statements were impulsive rather than premeditated and the workplace was not unused to profane speech. In particular, the Board pointed to the fact the employer had not disciplined other employees in the past for using similar language. The Board’s decision is unquestionably difficult precedent for employers. The takeaway is to tread carefully when considering discipline for offensive, vulgar and dishonest behavior where such behavior occurs in the context of union or concerted activity, and pay particular attention to how the employer has responded to similar vulgar and offensive conduct in the past. Moreover, be aware that the employee’s dishonest conduct in falsely denying responsibility for the conduct will not insulate the employer from an unfair labor practice finding.