A: When you are an employee represented by a union and going through a union decertification campaign.
In Fresenius USA Manufacturing, a pro-union employee anonymously scribbled vulgar, offensive, and threatening statements on several union newsletters in an employee break room. His statements were intended to encourage other employees to support the union in an upcoming decertification election.
The National Labor Relations Board held that the employer lawfully investigated authorship of the comments and lawfully questioned the employee about his role in the statements given the multiple complaints and the comments generated. However, the employer violated the National Labor Relations Act by suspending and discharging the employee because such offensive comments constituted protected activity, since they were intended to encourage other employees to support the union in an upcoming decertification election.
Let’s examine some of the details of the comments and why they were protected:
- The location of the comments favored protection because break rooms are generally appropriate places for distribution of union-related literature and discussion of union-related matters.
- The subject matter of the comments favored protection because the employee was exercising his Section 7 right to attempt to re-organize his fellow employees.
- The statements were impulsive rather than premeditated and the workplace was used to profane speech, and the employer had not disciplined others in the past for similar language.
Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.