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NLRB: Sexually Charged Comments Did Not Justify Firing

By: Robert J. D'Anniballe, Jr.
December 4, 2012

A New York company violated federal labor law by firing an employee who made vulgar and sexually offensive comments during the run-up to a union-decertification vote, the National Labor Relations Board ("NLRB") has ruled.

The decision, Fresenius USA Mfg., Inc. & Int'l Bhd. of Teamsters, Local 445, 358 NLRB No. 138 (Sept. 19, 2012), carries important implications for companies balancing their responsibilities under the National Labor Relations Act ("NLRA") and civil-rights statutes, such as Title VII of the Civil Rights Act of 1964.

Background

Fresenius manufactures and distributes disposable dialysis products.  Starting in 2008, the Teamsters represented two bargaining units at the company's Chester, N.Y. facility- a driver's unit and a warehouse-worker's unit.  When both units failed for more than a year to come up with collective-bargaining agreements with the company, a warehouse employee filed a decertification petition for the warehouse unit.

During the decertification campaign, a pro-union driver, Kevin Grosso, anonymously scrawled the following three messages on union newsletters in the employee break room: "Dear Pussies, Please Read!"; "Hey Cat food lovers, how's your income doing?"; and "Warehouse workers, RIP."

Several female warehouse workers complained to Fresenius officials that they found the statements vulgar, offensive and threatening.  The company, concerned about possible violations of federal civil-rights laws and internal company policies, investigated their complaints. Grosso initially denied involvement, but Fresenius later discovered that he was the source of the comments.  Fresenius then fired Grosso, both for making the offensive comments and for his dishonesty.

An administrative law judge found that Fresenius did not violate the NLRA, either by investigating the complaints or by firing Grosso.

The Decision

The NLRB reversed.  Though the Board concurred that the company had a legitimate basis to investigate the warehouse workers' complaints and question Grosso, it held that his firing violated the NLRA. 

The Board focused its decision on whether the profane and vulgar nature of Grosso's comments caused him to lose the anti-retaliation protection of the NLRA.  In concluding that his comments remained protected - despite the use of the word "pussy" - the NLRB  reasoned: "In addition to serving as a crude anatomical reference, the term is also commonly employed to refer to a weak or ineffectual person - someone who is not a 'man.'  That clearly was the sense in which Grosso used the term in his attempt to encourage all warehouse employees - not any particular employee or only female employees - to 'man up' and support the Union in the decertification election."

The Board also emphasized the history of unpunished profane speech at Fresenius, including the presence of a sticker reading "DON'T BE A DICK" on an employee's jack that was used at work and in patients' homes. 

Board Member Hayes dissented, predicting that the decision would "impermissibly fetter the ability of employers to comply with the requirements of other labor laws."

Bottom Line

The NLRB's decision gives short shrift to both the harmful effects of sexual harassment and the laudable efforts of companies like Fresenius to stamp out vulgar, sexually charged conduct from the workplace.  Nonetheless, in light of the opinion, employers involved in labor disputes need to tread carefully when disciplining employees engaged in inappropriate behavior if the employees' actions might nonetheless be protected under the NLRA.