In yet another challenge to employers’ ability to manage their workplaces, the National Labor Relations Board (NLRB) recently ruled that an employer violated the National Labor Relations Act (NLRA) when it terminated an employee who wrote “vulgar, offensive, and threatening” statements on several union newsletters left in an employee break room, and then lied about it when questioned by his employer. Although the employer was allowed to investigate and interrogate the employee about the statements, the NLRB said that it went too far when it actually terminated the employee for lying about and writing the statements.

In Fresenius USA Manufacturing, the employer was in the midst of a decertification campaign when several female employees lodged a written complaint over vulgar, harassing and threatening statements they found scribbled on union newsletters in the break room. The statements (“Dear Pussies, Please Read!” and “Warehouse workers, RIP”) were meant to coerce employees into voting for the union in the upcoming decertification election, and the evidence pointed to a specific employee as the culprit. Management questioned the employee about the statements and the employee first lied, but later confessed. The employer then terminated him for lying during the investigation and for his statements.

In what first seemed like a win for the employer, the NLRB upheld the employer’s right to investigate the complaints, findings that “employers have a legitimate business interest in investigating facially valid complaints of employee misconduct, including complaints of harassment.” The NLRB also upheld the employer’s right to question the employee, as long as he was never asked about his union views or any of his union activities. The NLRB’s decision took a sharp anti-employer turn, however, when it found that the employee’s statements and his false denial were protected, and the employer’s act of discharging him for engaging in such protected activity violated the NLRA. In response to the employer’s argument that the employee’s offensive statements were so egregious as to lose the protection of the NLRA, the NLRB reasoned that they were merely “impulsive” and not premeditated, and therefore did not lose their protected status.

In his familiar dissenting role, Member Brian Hayes once again came to the employer’s defense, finding that the majority’s decision conferred upon employees “a degree of insulation from discipline that the Act neither requires nor warrants.” He also chastised the majority for placing employers in the untenable position of tolerating conduct that could form the basis for a Title VII harassment claim in the name of protected concerted activity. Member Hayes further noted that the majority’s decision would limit an employer’s ability to “maintain civility and order in their workplace.”

The Fresenius decision adds another layer of risk to discipline decisions made in cases involving inappropriate workplace behavior and the enforcement of reasonable work rules designed to comply with employment law obligations and to promote civility and decorum in the workplace.