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NLRB Says Employee's Offensive and Threatening Comments Did Not Justify Discharge

The National Labor Relations Board (NLRB) continues its zealous watch over employers’ policies or practices that violate the National Labor Relations Act’s (NLRA) employee protections, even when the alleged protected activity involves offensive and potentially threatening language. The NLRA applies to both union and non-union workplaces and protects employees’ right to talk about their work conditions – wages, supervisors, benefits, union organizing, etc.

During a decertification campaign, a pro-union employee left three union newsletters with handwritten statements scrawled across them in the employee break room. The statements read, “Dear Pussies, Please Read,” “Hey cat food lovers, how’s your income doing?” and “Warehouse workers, RIP.” Several female workers complained that the statements were vulgar, offensive and threatening. One said she recognized the handwriting as a particular employee’s. When questioned about the statements, the employee initially denied responsibility, but later inadvertently admitted to leaving the notes.

The employee was suspended during the employer’s investigation, and later discharged, because of his comments. In a 2-1 decision, the Board held that the employer’s investigation was lawful because it was consistent with the company’s anti-harassment policy. Moreover, the employer could be held liable (under Title VII) for comments constituting harassment if it knew about the conduct and did not take corrective action.

However, the Board determined that the employer went too far, and violated the NLRA, when it suspended and then terminated the employee. The Board found that the employee’s comments were aimed at encouraging other workers to support the union and were not sufficiently egregious to warrant losing the protection of the NLRA. The Board considers the following factors when determining whether an employee’s conduct is protected under the NLRA:

• The place of the discussion;
• The subject matter of the discussion;
• The nature of the employee’s outburst;
• Whether the outburst was provoked by an employer’s unfair labor practice.

Considering each factor, the Board found the circumstances weighed in the employee’s favor:

• The comments were left in the employee break room, which is generally an appropriate place for employees to distribute union-related material (although the anonymity of the comments exacerbated the disruptive effect, and weighed against their protection, the Board did not view this as significant because the comments did not stay anonymous for long);
• The comments concerned the waning support of the union;
• Even vulgar language may be protected by the NLRA, particularly where evidence showed profane speech had previously been used in the workplace and did not result in discipline; and
• In addressing the fourth factor, the Board observed the employer did not provoke the employee’s comments, but reasoned that the other circumstances weighed in favor of protecting the employee’s conduct.

Compliance with potentially conflicting federal laws (e.g., Title VII and the NLRA) is a tricky tightrope for employers to balance. An employer’s well-intentioned observance of one law (in this case, Title VII, which protects employees’ civil rights) may violate another (here, the NLRA). Employers may find compliance with the ruling challenging since the Board’s decision lacks a bright-line rule. However, employers must thoroughly investigate each incident and then identify and weigh all the facts and circumstances (using the Board’s guidance) carefully before making a termination decision.

Need help with an investigation, a disciplinary issue, or an update to your handbook or policies? Contact us – we can help!