As we have reported before, the National Labor Relations Act (“NLRA”) can be a trap for unwary employers. This is partly true because the NLRA has been found to protect speech that would generally be considered untruthful or offensive and might otherwise permit the employer to terminate the individual. A few recent decisions serve as examples of employee speech that was found to be protected under the NLRA.
In one case, Dalton School, Inc., an Administrative Law Judge ordered the reinstatement of a teacher who sent emails criticizing the administration’s response to issues surrounding the school’s production of a play. In one of his emails, the teacher (Mr. Brune) strongly suggested that the administration had lied (“they lied to us and lied to the students . . . “). However, when he was later asked if he had made such a statement, the teacher denied it. The teacher was later terminated and he subsequently filed an unfair labor practice complaint with the NLRB. After hearing the evidence, the ALJ assigned to the case ruled that the school had violated the NLRA and ordered that the teacher be reinstated with full pay and benefits. While the ALJ noted that he did not believe the school when it argued that the teacher was terminated for lying about making the remarks and not for sending the emails in the first place, the ALJ went on to state that it ultimately would not have mattered.
Brune’s discharge would not be rendered lawful even if he lied to Respondent on March 11 and if Respondent discharged him in part for this lie. The “lie” was elicited by Respondent during an investigation that was motivated by Respondent’s animus toward Brune’s protected email.
In another recent case, the National Labor Relations Board (NLRB) upheld a finding by an ALJ that it was illegal for an employer to prohibit and/or discipline its employees for wearing stickers and buttons that read “WTF Where’s the Fairness” and “Cut the Crap! Not My Healthcare.” (Pacific Bell Telephone Company.) The employer had argued that the vulgar nature of the stickers and buttons served to take the speech outside of the protection of the NLRA. However, the NLRB disagreed, finding that despite the common meaning of “WTF,” the employer hadn’t proven that it did not simply refer to “Where’s the Fairness” in this case.
We find that the possible suggestion of profanity, or “double entendre,” as the Respondents characterize it, is not sufficient to render the buttons and stickers unprotected here, where an alternative, nonprofane, inoffensive interpretation is plainly visible and where further, the buttons and stickers were not inherently inflammatory and did not impugn the Respondents’ business practices or product.
While one might reasonably question why the employees would wear something that purportedly meant “W[here’s] T[he] F[airness] Where’s the Fairness,” employers should nonetheless take note that taking an action against employees based on something they’ve said can lead to an NLRA complaint. The decision comes on the heels of another case in which an employer was ordered to reinstate an employee who yelled racially offensive taunts at some replacement workers as they crossed near a picket line.
In light of these recent decisions, employers must carefully consider all the facts and circumstances in situations involving employee “speech,” and seek counsel as necessary, before deciding upon an appropriate course of action.
If you have any questions about how the information in this article may affect you or your business, please contact Peter Richter at prichter@stroudlaw.com or (608) 257‑2281 or your Stroud attorney.
DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice. This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship. You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.
