National Labor Relations Board Affirms Discharge for Employee Who Lied During Investigation

A decertification vote for the International Brotherhood of Teamsters Local 445 was on the horizon when three union newsletters appeared in the employee break room. All of the letters included anonymous handwritten comments such as “Dear P—ies, Please Read,” “Hey cat food lovers, how is your income doing?,” and “Warehouse workers, RIP.”

Several female employees complained to the company that the handwritten statements were vulgar, offensive, and threatening. The company undertook an investigation, which included interviewing a warehouse driver. The driver initially denied responsibility for the messages, but later admitted writing them. The company fired him because of the written comments and his dishonesty during the company investigation. The union filed an unfair labor practice charge.

The Board decided this case without addressing the issue of whether the handwritten statements were protected by the National Labor Relations Act. Instead, the Board concluded that the company lawfully terminated the driver for his dishonesty during the investigation. The company has legitimate business interests in investigating the harassment complaints. Employers may need to question employees about such complaints, even if the conduct took place during the employee’s exercise of Section 7 rights. The Board concluded that the company never questioned the driver about his union views or other union activity, and that there was no evidence that the company used the investigation as a reason to pry into union activity generally.

The driver’s false statements to the company were not protected under the NLRA. Companies are required to promptly investigate employee misconduct, including charges of harassment, and the Board correctly found that Section 7 activity does not act as a bar to these investigations.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at