October 12, 2012

NLRB Approves Of The Use Of Profanity And Harassing Conduct In The Workplace

In the midst of a union decertification campaign, a union supporter made anonymous, vulgar statements about the employer.  On a union newsletter, he wrote “Dear Pussies, Please Read.”  On another union newsletter, he wrote “Hey cat food lovers, how’s your income doing?”  And on a third newsletter, he wrote “Warehouse workers, RIP.”  After receiving complaints from several female employees, his employer learned through an investigation that one male employee had written all of those anonymous comments — in fact, he ultimately admitted doing so.  He was fired and he challenged his termination with the NLRB, claiming that he was fired for engaging in protected, concerted activity.

The Board found that these vulgar and potentially threatening statements were not “so egregious” as to lose protection under the National Labor Relations Act.  In reaching that conclusion, the Board focused on three factors: (1) the writings were made in a work area; (2) they were made during a union campaign; and (3) on one prior occasion, an employee had affixed a sticker to a piece of equipment that said “Don’t be a dick.”  It ordered the employee reinstated with backpay.

The Board acknowledged that the comments were “vulgar” and “demeaning to women,” but apparently gave no weight to that, finding instead that it was “part of the res gestae [the sequence of events] of otherwise protected activity.”  Implicitly, the Board ignored precedent from federal appellate courts chiding it for similar rulings that were found to be “preposterous” and not “reasonably defensible.”

This decision, while likely to be reversed by an appellate court, is notable because it seemingly puts employers in a “Catch 22” upon receiving complaints about offensive or harassing conduct during an organizing campaign.  Ordinarily, the law would encourage employers to conduct an investigation and discipline those responsible for such conduct, but this decision cautions against that common sense conclusion.


Category: Employee Handbooks,