At least some good has come out of the Supreme Court’s finding that President Obama’s recess appointments were invalid in Noel Canning. By virtue of the Supreme Court’s decision, the Labor Board reconsidered its decision in Fresenius USA (pdf) and concluded that an employer acted lawfully when it discharged a union supporter for lying during an internal investigation into who scribbled vulgar, offensive, and arguably threatening statements on union newsletters in the employer’s break room.
Before you get too excited, the Board took pains to point out that it assumed the employee’s vulgar statements were protected. Additionally, the Board noted that it will find that an employee is privileged to lie during internal investigations where the employee has a legitimate interest in shielding his section 7 activity from his employer. But the Board said it will recognize an exception to the right to lie about section 7 activity where the questioning and lie relate to the employee’s job performance or the employer’s business.
In this case, the Board found the discharge permissible because the investigation had a legitimate business interest. Specifically, the employer received a number of complaints from female employees that the statements were intimidating, vulgar and offensive and its investigation of those complaints was consistent with its anti-harassment policy and with federal law. The board also noted that the investigation did not pry into the employee’s support for the union, but questioned him solely on the handwritten comments the allegedly harassing comments. Also, the employer’s discharge was consistent with the employer’s past practice.
Takeaways: The Board’s decisions on where to draw the line between permissible and impermissible employee speech are anything but clear. Employers should get experienced legal advice before addressing these issues.