As the end of its fiscal year approaches (September 30), the NLRB pushes more decisions out than it has in the last several weeks.  Not a whole lot are of note, honestly.  There seems to be an uptick of default judgments being issued,-findings of violations of the NLRA without a formal hearing,–but it is difficult to tell whether that is normal or whether there is a greater trend for this sort of action. The Board did issue a decision in a case involving whether an employee’s discharge for violation of the employer’s harassment policy violated the Act. As we have previously noted, defining what is “protected” employee conduct and that which is “unprotected” is not always easy. Doing away with the suspense, the NLRB did find the employee’s conduct remained protected, and therefore, the resulting discharge was unlawful.  In Fresenius USA Manufacturing, Inc. 358 NLRB No. 138 (September 19, 2012), the employer was faced with an attempt by employees to decertify the union.  During the course of the campaign, three union newsletters that were posted in the employee breakroom were anonymously defaced in a manner supportive of the union.  One of the scrawlings said, “Dear P*ssies, please read,” while another said “Hey cat food lovers, how’s your income doing?”  Finally, the third statement said “Warehouse workers, RIP.”  Several female workers complained about the statements, claiming that they were “vulgar, threatening and offensive.” The employer did what it was legally obligated to do in a situation where an allegation has been raised that the anti-harassment policy has been violated:  it conducted an investigation.  The investigation led to a a male employee whose handwriting was strikingly similar to the notations made on the newsletters.  When the employer interviewed the employee, however, he denied the handwriting was his and no action was taken at the time.  The employee then tried to call his union representative to discuss the investigation but “unwittingly dialed” the employer’s vice president.  Thinking he was talking to his union representative the employee, contrary to his previous statements, admitted that he had defaced the newsletters.  The vice president then identified himself to the employee.  “After exclamations of disbelief, [the employee] attempted to deny his identity.”  The employer then called the employee in and suspended him and ultimately discharged him for the comments he made as well as his dishonesty in the investigation. The union filed charges, of course.  At the trial, the Administrative Law Judge concluded that the investigation and discharge were both lawful.  What is somewhat surprising is that the Acting General Counsel appealed both findings, contending that the investigation was unlawful interrogation and the discipline was for protected conduct.  This appears to be an attempt to extend the assault on workplace investigations by attempting to punish an employer who investigates alleged misconduct. The Investigation Held To Be Lawful The Board found that the investigation was lawful “based on the handwritten newsletter comments themselves and the multiple complaints it received,” the employer had “a legitimate interest in investigating the comments.”  The Board also concluded that questioning of the employee about the language and not his union activity was perfectly lawful as well. The Discharge Held To Be Unlawful The Board did, however, reverse the judge with respect to the discharge, finding it unlawful.  The Board concluded that the fact the comments were made in the breakroom as opposed to the shop floor was at best a neutral location.  The Board also took issue with the severity of the comments, finding a particular intent on behalf of the employee:

[The employee’s] use of the term ‘p*ssy’ does not weigh against continued protection.  In addition to serving as a crude anatomical reference, the term is also commonly employed to refer to a weak or ineffectual person–someone who is not a “man.”  That clearly was the sense in which [the employee] used the term in his attempt to encourage all warehouse employees–not any particular employee or only female employees, to ‘man up’ and support the Union in the decertification election.

The Board also minimized the seriousness of the “Warehouse workers, R.I.P.” comment, noting “context matters” and that:

 [T]he comment was unaccompanied by any physical or otherwise threatening conduct that would warrant treating it as something other than a figure of speech suggesting that the warehouse workers were sowing the seeds of their own ruin.

Poetic stuff, but it gives no consideration at all to the several women who found the comments to be offensive and threatening (which could lead to liability if no action was taken). Member Hayes dissented, asserting that the majority’s findings might have consequences beyond the current situation:

Taken as a whole, these pronouncements confer on employees engaged in Section 7 activity a degree of insulation from discipline for misconduct that the Act neither requires nor warrants.  Predictably, we will see these pronouncements unloosed from their factual foundation and applied broadly in future cases.

The decision is not terribly surprising.  The Board was faced with alleged misconduct that was intertwined with protected activity; in all such situations it will give an employee greater latitude.  The real takeaways are as follows:

  •  When confronted with alleged misconduct that may be closely related to otherwise protected activity, employers should focus the investigation on the conduct and not the broader activity.  But, be aware that the NLRB may still take the position that the investigation itself is unlawful, as it did here.
  • In this case, the employee outright lied on two occasions (during the investigation and after he had mistakenly called the company vice president), the Board would have found such dishonesty to be protected.
  •  Know that the Board’s analysis naturally gives weight to the subjective intent of the perpetrator and appears to give little or no weight to the people reporting the problem.

When reading the Board’s certainty about what was meant by the employee when he wrote these things, it is interesting to compare how quickly the Board would find a fairly innocuous comment in a handbook to be unlawful as it recently did in TT & W Farm Products, Inc., 358 NLRB No. 125 (September 11, 2012) (handbook language prohibiting employees from “bearing false witness” a violation of the Act) even though there is zero evidence the language was ever applied or that any employee was even aware of it.