For those of you dealing with unions, you may be interested in reading a recent NLRB decision in which it held that an employer could not discipline or terminate employees who make vulgar, offensive, or threatening statements.

In this case, an employee scribbled vulgar and threatening statements on several union newsletters that were left in the employee break room. A number of female employees complained about the statements and the employer investigated the situation. The investigation identified the employee who wrote the vulgar comments and this employee was interviewed. During the interview, the employee denied making the statements. The employer confirmed that the employee had written the vulgar statements and discharged him for making the statements and lying about writing them.

The employee appealed his termination to the NLRB. The NLRB found that the employer was within its rights to investigate the statements, but could not terminate the employee as a result of the investigation.

A Puzzling Conclusion

The NLRB found that the employer violated the NLRA by suspending and discharging the employee because the employee was engaged in protected activity. Nor could the employer terminate the employee for lying because, the NLRB held, the employer’s questioning of the employee put him in a position of having to reveal his protected activity.

It is truly frustrating that an employer cannot take action against an employee when an employee engages in vulgar and offensive conduct. The dissenting member of the NLRB put it well when he stated my colleagues impermissibly fetter the ability of employers to comply with the requirements of other labor laws and to maintain civility and order in their workplace by maintaining and enforcing rules non-discriminatorily prohibiting abusive and profane language, sexual harassment, and verbal, mental, and physical abuse.

This NLRB decision could force employers to make a choice between the NLRA and the discrimination statutes when addressing employee misconduct.