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Labor Board Permits Questioning of Employee in Workplace Misconduct Investigation, Despite Protected Activity

An employee’s dishonesty during his employer’s lawful investigation into workplace complaints could serve as a basis for discipline of the employee, even if the conduct in question took place during the employee’s exercise of Section 7 rights under the National Labor Relations Act, the National Labor Relations Board has decided. Fresenius USA Manufacturing, Inc., 362 NLRB No. 130 (June 24, 2015)

The employee, an open and active union supporter, anonymously scribbled vulgar, offensive, and threatening statements on several union newsletters in a company break room to persuade his co-workers to support the union in a decertification election. During the ensuing investigation prompted by complaints about the statements by several female employees, the employee denied authorship. After the company confirmed the employee’s authorship, he was suspended and discharged for the statements and his dishonest denial of authorship.

The Board previously had decided the suspension and discharge were unlawful.

Looking at the case anew, however, the Board concluded that even assuming (without deciding) the employee’s handwritten statements were protected (the statements en­couraged warehouse employees to support the union in the decertification election), the company lawfully discharged the employee for dishonesty. The Board observed that “as part of a full and fair investigation, it may be appropriate for the employer to question an employee about factually valid claims of harassment and threats, even if that conduct took place during the employee’s exercise of Section 7 rights.” In addition, the Board noted the company had a legitimate business interest for investigating the handwritten comments and that its decision to investigate was consistent with its anti-harassment policy and with other federal statutes, including Title VII of the Civil Rights Act of 1964. The company was justified in expecting the employee to answer its questions truthfully. Although, the Board noted, in some circumstances an employee may have a legitimate basis for lying to his employer (for example, where an employer unlawfully interrogates an employee about his union organizing activity), this was not such a case.

The Board also concluded the company had conducted its investigation in a manner that was consistent with the purpose of its investigation, The company explained the reason for the investigation to the employee, the questioning was reasonably tailored to the purpose of the investigation, the company did not ask about his union views or any of his other union activities, and it focused exclusively on the handwritten comments alleged to be harassing and threatening.  Further, the Board found the investigation did not occur in a context of employer hostility to protected union activity.

The Board next found the employer met its burden of showing that it would have taken the same action even in the absence of the employee’s handwritten statements because discharge for dishonesty was consistent with discipline it had imposed for similar violations in the past. The Board noted that employers may satisfy their burden by demonstrating dishonesty was an independent reason for prior terminations, or that a practice of discipline for similar acts of dishonesty exists.

Employers questioning employees in connection with an investigation must have a legitimate business interest and conduct the investigation in a manner consistent with the purpose of the investigation. In addition, the questioning should be reasonably tailored to the purpose of the investigation and the interviewee should not be asked about union views or the union views of any coworker. The questioning should be focused exclusively on the particular conduct alleged to be problematic.

Jackson Lewis P.C. © 2020National Law Review, Volume V, Number 182


About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.

Roger Kaplan employee drug testing attorney, Jackson Lewis Law Firm

Roger S. Kaplan is a Principal in the Long Island, New York, office of Jackson Lewis P.C. He has worked with many employers to help assure their drug and abuse testing policies and procedures comply with the state and federal laws and to develop effective testing strategies. He has frequently addressed business and professional groups on substance abuse testing issues.

Mr. Kaplan has represented clients and appeared before executive departments and administrative agencies, such as the United States Department of Labor (...