The National Labor Relations Board strikes again. Now it wants to control how employers handle offensive and threatening language in the workplace — and says that sometimes, employees have a right to lie to their superiors.
The NLRB recently ruled that Fresenius USA Manufacturing, violated the National Labor Relations Act by firing an employee who wrote “vulgar, offensive and threatening” statements on union newsletters left in a workers’ break room and then lied to management in a subsequent investigation.
The background: Fresenius employees voted to unionize two units at its
Chester, NY facility: drivers and warehouse workers. After a year, however, the union and the company hadn’t been able to agree on a collective-bargaining agreement for either unit.
At that point, a warehouse employee filed a decertification petition for the warehouse unit. In the midst of the decertification campaign, three union newsletters — with handwritten comments across the front — appeared in an employee break room.
The statements: “Dear Pussies, Please Read!”, “Hey cat food lovers” (an apparent reference to the ‘pussies’ remark), “how’s your income doing?”, and “Warehouse workers, RIP”.
Several female employees complained to management that the comments were vulgar, offensive and threatening.
Fresenius officials investigated, and the evidence pointed to vocal union supporter Kevin “Dale” Grosso. Grosso denied any involvement in writing the offensive comments.
The next day, however, Grosso attempted to call a union rep to discuss his being questioned by management. But he misdialed the phone — and got a company vice president instead. Mistaking the VP for his union rep, Grosso admitted he had written the comments on the union newsletters.
After a review session with HR, Grosso was fired. Two reasons were given: His comments on the newsletters and his dishonesty during the investigation.
Employee had right ‘not to respond truthfully’
When the case came before the NLRB, the board agreed with an earlier administrative law judge’s finding that Fresenius investigation of the offensive comments and subsequent questioning of Grosso didn’t violate labor laws.
“Employers have a legitimate interest in investigating facially valid complaints of employee misconduct, including complaints of harassment,” the Board wrote.
But here’s the kick in the head for employers: The Board ruled that Fresenius violated the NLRA by terminating Grosso for writing the comments on the newsletters.
“Grosso’s handwritten comments encouraged warehouse employees to support the Union in the decertification election … in writing (the comments), Grosso was engaged in protected union activity.”
But what about his lying to his superiors during the investigation? Here’s what the NLRB said: “Fresenius’ questioning of Grosso put him in the position of having to reveal his protected activity,” which is prohibited when “the inquiry is unrelated to the employee’s job performance or the employer’s ability to operate its business …
“(A)lthough Fresenius had a legitimate interest in questioning Grosso … Grosso had a right (under federal labor law) not to respond truthfully.”
The conclusion: In the midst of a union organizing drive, employees have carte blanche to lie to their employers during legitimate workplace investigations. And that further erodes employers’ ability to manage workplace conditions — like barring profanity among workers.
The NLRB marches on.