Continuing to push the limits of reason, the Board recently upheld an ALJ’s decision finding that an employer unlawfully suspended a striking employee who made an obscene gesture and “grabbed his crotch” towards another employee while on the picket line. As one might expect, the employer concluded that the employee who engaged in the obscene gesture violated the company’s sexual harassment and workplace violence policies. To discipline the employee for the conduct, the employer issued the employee a suspension. The Union subsequently filed an unfair labor practice charge challenging the suspension.

After a hearing on the issue, while the ALJ concluded that the striker did engage in “misconduct” by making the lewd gesture towards the other employee, he found it did not rise to a level sufficient to lose the protection of the National Labor Relations Act. In fact, the ALJ concluded “that for a striking employee to forfeit the protection of the Act, an implied threat of bodily harm must accompany a vulgar or obscene gesture.” So, given that the striker only engaged in admittedly “vulgar or obscene” conduct, the employer could not suspend the employee for his activity on the picket line.

In reaching this conclusion, the ALJ summarily dismissed the employer’s obligations to prohibit sexual harassment under Title VII of the Civil Rights Act by concluding that this obscene conduct did not constitute sexual harassment. In doing so, the ALJ boldly claimed that the misconduct “cannot be legitimately characterized as `sexual harassment’” and that, under Title VII, “a plaintiff generally cannot prevail on the basis on a single incident not involving physical contact.” The ALJ cited one federal appeals court case from 2006 in support of his conclusion. The Board then adopted the ALJ’s decision on the issue with no additional discussion.

Employers should stay tuned as this case looks ripe for appeal.