On September 19, 2012, the National Labor Relations Board (“NLRB”) continued its assault on an employer’s right to set and enforce reasonable workplace rules. This time, the target was a mean-spirited employer who had to gall to fire an employee who scrawled profanities on newsletters left in a break room and then lied to an investigator when asked if he had done it. Because the conduct occurred in the context of a union decertification campaign, the Board found the employee’s conduct to be protected by the National Labor Relations Act and ordered the employee reinstated with backpay. Fresenius USA Manufacturing, Inc., 358 NLRB No. 138 (2012).
In Fresenius, a group of warehouse employees were preparing to vote in a union decertification election. Shortly before the election, someone wrote “Dear Pussies, Please Read!” and “Warehouse Workers, RIP” on union newsletters left in a break room. Several female employees complained to Fresenius that the comments were vulgar, threatening, and offensive. One employee recognized the writing as that of Kevin Grosso, a pro-union driver. Management questioned Grosso, who denied writing the comments.
The next day, Grosso placed a phone call to what he thought was his union representative. In the call, he confessed to writing the statements. Unfortunately for Grosso, he had inadvertently called a company vice president. Based on this admission, Fresenius fired Grosso because he had written vulgar, sexually offensive comments and had lied in the course of an investigation.
Grosso’s union filed an unfair labor practice charge, alleging that Grosso was fired because of his support for the union. An administrative law judge ruled in favor of Fresenius. The NLRB reversed the ALJ, finding that the comments were simply pro-union statements made in a workplace where profanity was not unusual.
The Fresenius decision is yet another intrusion into an employer’s right to impose reasonable standards for workplace conduct. As the Board’s recent Costco decision illustrates, the current NLRB believe that employer rules prohibiting “defamatory” statement violate the NLRA. The Banner Health Systems decision holds that employees cannot be barred from discussing confidential workplace investigations with co-workers. Now, the Fresenius decision holds that employees may lie and use profanity with impunity so long as it is part of union representation election. One wonder where, if anywhere, this NLRB will draw the line on the scope of permissible employee (mis)conduct.
By Eric Paltell