NLRB Finds Vulgar and Threatening Statements Not Sufficiently Vulgar or Threatening to Warrant Termination

By Nelson Cary and Al Kinzer

While a petition to decertify a union was pending, a pro-union employee wanted to express his support for the union. In the employer’s breakroom, he encountered three different pro-union newsletters.  Impulsively, he scribbled onto each of these newsletters a different message. These included:

• “Dear P***ies, Please Read!” (The actual message did not have any asterisks in it.)
• “Hey cat food lovers, how’s your income doing?”
• “Warehouse workers, RIP.”

A number of female employees complained. The employer, believing that the comments were threatening, vulgar, and in violation of its sexual harassment policy, began an investigation. The first employee questioned, because a comparison of his handwriting to the messages on the newsletters, denied responsibility for the handwritten messages. 

The next day, however, that employee mistakenly called the employer, when he thought he was calling the union’s business representative. During this call, the employee admitted writing the messages on the union bulletin. The employer subsequently suspended, and then discharged, the employee for violating its sexual harassment policy and for lying in the course of the company’s investigation.

The NLRB found, in a 2-1 decision (pdf), that the discharge was unlawful, and ordered the employee reinstated with backpay. Why would the NLRB order the reinstatement of an employee who violated the employer’s sexual harassment policy, and then lied about it? Among other things, the NLRB majority explained that:

• vulgar language isn’t automatically unprotected, when uttered in the course of a union organizing campaign;
• the comments were “impulsive,” not premeditated;
• the word “p****” is also commonly used to refer to a weak or ineffectual person, “in addition to serving as a crude anatomical reference”;
• other employees used profanity in the workplace, including one employee who was admonished, but not fired, for twice putting a sticker on a piece of work equipment that said “don’t be a d***”;
• the “RIP” statement wasn’t really threatening when viewed in the context of the decertification effort; and
• the employee’s conduct occurred in the breakroom, not the production floor.

What about the lie, you ask? The NLRB majority dismissed the lie, noting that the employer’s questioning of the employee “put him in the position of having to reveal his protected activity, which [NLRB] precedent holds an employee may not be required to do where, as here, the inquiry is unrelated to the employee’s job performance or the employer’s ability to operate its business.” 

Most labor professionals, of course, would argue that a sexual harassment investigation is not only a matter of employee performance, but is also directly related to the employer’s ability to operate its business. Member Hayes (R), the sole dissenting member in this decision, recognized that very principle, among many others in his dissent. He found that the employer did not violate the NLRA in terminating the employee, and disagreed with the majority’s suggestion that the employee was privileged to lie about his conduct during the employer’s lawful interview about alleged sexual harassment.

The NLRB’s Acting General Counsel (“AGC”) also alleged in this case that the employer violated the NLRA by investigating the harassment complaint and questioning the employee about his participation. Thus, the AGC contended that even the employer’s act of investigating a sexual harassment complaint violates the NLRA. Labor professionals looking for good news in the NLRB’s decision will be pleased to know that the NLRB rejected these arguments and concluded that the investigation and questioning of the employee were lawful actions, consistent with the employer’s obligations to comply with anti-discrimination laws.