Properly navigating workplace harassment laws is a tricky endeavor for any company.  A recent decision from the National Labor Relations Board (NLRB) in Fresenius USA Manufacturing, Inc. (September 19, 2012) makes employers’ obligations in this arena even more uncertain.

In Fresenius, Kevin Grosso, a pro-union employee, made several anonymous written comments in an Fresenius employee break room, apparently in an attempt to sway warehouse workers to vote against an ongoing union decertification campaign.  After some of Grosso’s female co-workers complained to Fresenius that the comments were vulgar, offensive and threating, Fresenius investigated the comments and questioned Grosso directly, based on the fact that other employees identified his handwriting.  During the investigation, Grosso inadvertently admitted responsibility for the comments, and Fresenius’ human resource manager terminated Grosso’s employment.

Following the termination, the union asserted a claim for unfair labor practices against Fresenius based on the investigation and Grosso’s termination.  At trial, the NLRB Administrative Law Judge found in favor of Fresenius, ruling that both the investigation and the termination complied with the National Labor Relations Act (“NLRA”).  On review, the NLRB upheld the ALJ’s ruling that the investigation, including the questioning of Grosso, was appropriate under the NLRA, based principally on Fresenius’ obligations under Federal law and its own employment policies to investigate harassing behavior.  However, the NLRB found that terminating Grosso’s employment did violate the NLRA insofar as Grosso’s comments encouraged other workers to support the union and therefore constituted protected activity under Section 7 of the NLRA.

To its credit, the NLRB’s opinion acknowledged that employers have a legitimate interest in investigating complaints of misconduct, including complaints of harassment. As the NLRB was seemingly aware, such investigations are a crucial component of ensuring compliance with Federal laws (Title VII in particular) and with an employer’s own workplace anti-harassment policies. Nonetheless, the NLRB was unwilling to overcome the protections of the NLRA in this instance.  The NLRB held that although otherwise protected activity may in some occasions lose protection if the language is “sufficiently opprobrious, profane, defamatory, or malicious”, the use of vulgar or profane language in the workplace does not necessarily destroy the Act’s protections.  According to the NLRB, Grosso’s comments, though facially offensive to other employees, did not rise to the level necessary to avoid the protections afforded by the NLRA.

Clearly, this decision places employers in a difficult position in having to avoid liability for failing to address and prevent workplace harassment but simultaneously having to avoid running afoul of NLRA-protected activity.  The NLRB’s ruling in Fresenius creates a crossroads of competing employer obligations under these two legal principles that will force employers to proceed with the utmost caution in addressing harassing conduct related to any form of union or concerted activity.  Employers facing these situations should seek the guidance of their HR professional and legal counsel in order to negotiate these seemingly contradictory responsibilities.