The NLRB Condones Sexual Harassment


Sexual harassment is condoned if it is “Protected Concerted Activity”

My friend Jon Hyman of the Ohio Employer’s Law Blog wrote a post about an NLRB (National Labor Relations Board) decision that so outraged me I had to write something as well. Jon focuses on the total case but I wanted to talk about the fact that by this decision the NLRB condones sexual harassment and is forcing employers to decide which U.S. law it must follow.
The Case
The company who has been the latest target of the NLRB outlandish decisions is Fresenius USA Manufacturing. In this situation the employees of Fresenius were in the midst of a decertification election. One ardent union supporter, Kevin Grosso, was accused of, and found guilty of, scribbling notes on several union newsletters and leaving them in the restrooms. He was attempting to encourage (threaten?) his fellow employees to support the union by notes that read “Dear Pussies, Please Read” and “Warehouse workers RIP.”
Needless to say, many workers found this offensive and the company, in compliance with Title VII of the Civil Rights Act that prohibits sexual harassment, investigated. In determining that Grosso wrote the notes they also recorded that he lied about having done so. Subsequently he was terminated. This is a course of action any reasonable employer would have taken in light of the hostile and deceitful actions Grosso had taken.
NLRB action
An initial administrative law judge ruled that Fresenius acted properly in its actions of both investigating and terminating Mr. Grosso.  However, the Acting General Counsel of the NLRB filed an appeal, saying that the company, while in its rights to investigate, had over stepped its bounds in terminating Grosso. They ruled that this was a violation of his Section 7 rights by terminating him for his protected concerted activity of supporting the union regardless of the offensive language and threats. A three member panel made the following determination:
Having found the interrogation lawful, we reject that argument. Nevertheless, Fresenius’ questioning of Grosso put him in the position of having to reveal his protected activity, which Board precedent holds an employee may not be required to do where, as here, the inquiry is unrelated to the employee’s job performance or the employer’s ability to operate its business.
A possible interpretation
So under the guise of protected concerted activity, which is protected under the National Labor Relations Act, any employee could be free to engage in sexual harassment and create a hostile environment and a company would not be able to do anything but investigate. It would not be able to discipline or even terminate because this would violate a Section 8 right. This is a pretty bad position to be in. Who is going to sue you now?
This puts companies in the very difficult position of having to choose which Federal law they are going to abide by, the NLRA or Title VII. And lest you think the NLRA only applies to union situations then you have not been reading or paying attention. See my posts here, here and here.
Read Jon Hyman’s post
To get an attorney’s point of view on this case Jon’s post Now the NLRB says employers can’t regulate threatening or offensive speech (this is getting ridiculous) needs to be read. He makes a broader case than I do and it is must reading. (Thank you Jon.)
As a side note, Grosso’s actions were successful, the decertification was defeated 10-2. Guess that made him a hero in the Union’s eyes.

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