Employee's Offensive and Potentially Harassing Comments Are Protected under the NLRA: NLRB

Practical Law Legal Update 7-521-4808 (Approx. 5 pages)

Employee's Offensive and Potentially Harassing Comments Are Protected under the NLRA: NLRB

by PLC Labor & Employment

Key Litigated Issues

In Fresenius USA Manufacturing, Inc., the NLRB analyzed an employer's investigation and subsequent discharge of an employee for making vulgar, offensive and threatening statements during a union decertification campaign. Key litigated issues were whether the employer lawfully:

Investigated the employee for making the statements.
Suspended and then terminated the employee based on the results of its investigation.

Background

During a campaign to decertify the International Brotherhood of Teamsters, Local 445 as the collective bargaining representative for Fresenius USA Manufacturing, Inc.'s employees, a pro-union employee and driver for Fresenius, Kevin Grosso, anonymously commented on three union newsletters he left in an employee breakroom in an attempt to encourage warehouse workers to vote for the union. His comments included:

"Dear Pussies, Please Read!"
"Hey cat food lovers, how's your income doing?"
"Warehouse workers, RIP."

Grosso testified at trial that he believed the union was losing support among the warehouse workers and wrote the comments on the newsletters to encourage the workers to support the union in the upcoming decertification election. Grosso also admitted during the trial that his second comment was a play on his first and they could be understood as demeaning to women.

Several female workers complained to Fresenius that the comments were vulgar, offensive and threatening, and after one of the workers recognized the handwriting on the comments as Grosso's, members of Fresenius' management questioned Grosso about the statements. Grosso denied that he had written them, but later inadvertently admitted he was responsible. Grosso was suspended pending Fresenius' investigation and later discharged based both on his anonymous comments and because he had lied during the investigation.

The NLRB issued a complaint based on the union's unfair labor practice charge, claiming that Fresenius violated the NLRA by investigating and disciplining Grosso because of his protected comments. An NLRB administrative law judge (ALJ) found for Fresenius on both claims and dismissed the complaint. The NLRB's Acting General Counsel filed exceptions with the four-member panel (Board) heading the NLRB's judicial functions.

Outcome

On September 19, 2012, a three-member panel of the Board issued an opinion in the case, upholding the ALJ's opinion that Fresenius' investigation into Grosso was lawful, but finding, contrary to the ALJ, that Fresenius unlawfully suspended and discharged Grosso in violation of the NLRA.

The Board first found that Fresenius' investigation of the comments was lawful, as:

Fresenius had a legitimate interest in investigating Grosso's comments, based on both their content and the complaints Fresenius received about them.
Fresenius' decision to investigate the comments was consistent with its anti-harassment policy.
Under Title VII, Fresenius could be held liable for comments constituting sexual harassment if it knew about the conduct and did not take corrective action. For more information on an employer's vicarious liability for harassment, see Practice Note, Harassment: Employer Vicarious Liability for Harassment.

In addition, the Board found Fresenius' questioning of Grosso was lawful under the NLRA, because:

Employers may question employees about facially valid harassment claims during a fair investigation, even if the conduct took place while the employees were exercising their Section 7 rights.
Fresenius did not ask Grosso about his union activity or views during its limited questioning.

However, the Board found that Fresenius violated the NLRA for suspending and then discharging Grosso for engaging in protecting activity, because his comments encouraged other workers to support the union in the decertification election and were not sufficiently egregious to warrant losing their protection under the NLRA.

Under the Board's prior decision in Atlantic Steel Co., the Board considers the following factors when determining whether an employee's conduct is protected under the NLRA from discipline:

The place of the discussion.
The subject matter of the discussion.
The nature of the employee's outburst.
Whether the outburst was, in any way, provoked by an employer's unfair labor practice.

Weighing these factors, the Board found Grosso's conduct was not egregious enough to lose NLRA protection because:

He left his comments in the employee breakroom, which is generally an appropriate place for employees to distribute union-related materials. The ALJ had found that the anonymity of Grosso's comments exacerbated their disruptive effect and caused a greater impact on employees than if Grosso had made the comments publicly, which weighed against their protection. Although the Board noted the ALJ's concern could be a legitimate one, in this case it was not, since the comments did not remain anonymous for very long and the ALJ's speculation that the anonymity of the comments would invite warehouse employees to think other drivers like Grosso held the same views was unfounded.
Grosso's comments concerned the employees' faltering support of the union.
The nature of Grosso's conduct weighed in favor of protection because:
- there was no evidence his comments were premeditated;
- vulgar language may be protected by the NLRA, particularly where evidence in this case showed profane speech had been used in the workplace before and in at least one instance did not result in discipline;
- Grosso's supposedly threatening language on one of the newsletters ("Warehouse workers, RIP") was not actually threatening in context; and
- the anonymity of the comments did not make them more disruptive in this case.
Where, as here, there is no evidence the employer provoked the employee's comments, the final Atlantic Steel factor is neutral.

The Board also found that, aside from the Atlantic Steel analysis, the totality of the circumstances in this case weighed in Grosso's favor.

Member Hayes dissented from the Board's holding that Fresenius violated the NLRA by suspending and discharging Grosso, arguing the majority's decision erroneously implied that:

Misconduct occurring during organizational activity must be accorded greater latitude than other Section 7 activity.
Profanity in the course of labor relations is the norm in any workplace.
Remarks that would be unprotected on the shop floor should be protected when made in an employee breakroom instead.
Comments that coworkers reasonably believe are harassing and sexually insulting do not disrupt productivity.
Threatening speech alone does not warrant loss of NLRA protection.

Practical Implications

The Board's decision in Fresenius USA Manufacturing, Inc. highlights that compliance with the NLRA and other federal laws such as Title VII may not always be aligned, particularly when offensive language is used to support union activity. In light of this decision, employers may need to evaluate the costs and benefits of complying with one federal agency's directives, such as the NLRB, while arguably violating another's, such as the EEOC.

Employee's Offensive and Potentially Harassing Comments Are Protected under the NLRA: NLRB | Practical Law