A warehouse employee who anonymously scribbled vulgar, offensive, and, possibly threatening statements on several union newsletters left in an employee break room in an undisputed attempt to encourage his fellow employees to support the union in an upcoming decertification election was wrongfully discharged for his activities, a divided National Labor Relations Board rules.

In a good-faith response to female employees’ complaints about the statements, the employer investigated the statements, questioned the suspected worker about them, and, upon confirming his authorship, suspended and discharged him for making the statements and falsely denying responsibility for them.

The Board majority says that while the employer’s investigation and questioning of the accused worker did not violate the National Labor Relations Act, the suspension and discharge did. Although the Board recognizes that employers have a legitimate business interest in investigating facially valid complaints of employee misconduct, including complaints of harassment or sexual harassment, the majority says the suspension and discharge came “in the midst of a decertification campaign,” and the comments scribbled by the accused worker was for the purpose of “encouraging warehouse employees to support the Union in the upcoming decertification election.” Although his comments were vulgar, offensive, and included the phrase “RIP,” there is no basis for concluding that his comments would reasonably be perceived by employees as a threat of physical harm, says the Board majority. There was also evidence that the employer had previously dealt with vulgar employee conduct—unconnected to any protected activity—by issuing only minor discipline. Further, there was no evidence that his commentary interfered with the employer’s production, challenged any supervisor’s or manager’s authority, or otherwise undermined its ability to maintain order and discipline at the employer’s facility.

Although his comments triggered a legitimate managerial interest for the employer in determining whether the anonymous comments constituted possible harassment in the workplace, the circumstances indicated that company and the warehouse workers “knew or reasonably should have known” that his comments had nothing to do with harassment and everything to do with the upcoming decertification election in the warehouse, the Board majority decides. Fresenius USA Manufacturing and Teamsters