A New Low For The NLRB – Employees Have A Right To Lie During Workplace Investigations

Kegler Brown E-mployment Alert

The National Labor Relations Board has issued yet another disturbing decision.

This case arose in the context of a union decertification vote (a vote by employees to oust an existing union). An employee anonymously put fliers in the employee break room that, on their face, appeared to be profane, threatening, and arguably sexually harassing. A number of female employees expressed concerns to management that the statements were vulgar, offensive, and threatening. When one of the co-workers recognized the handwriting on the fliers, the company investigated and questioned the suspected writer. The employee, named Grosso, admitted that the fliers could be regarded as improper, but he denied writing the statements and that he had ever even seen the fliers previously. However, Grosso later admitted that he was the one who wrote the statements. The company fired Grosso for two reasons: (1) the nature of the statements written on the fliers, and (2) his dishonesty during the investigation.

First, the Board held that Grosso could not be fired for the coarse nature of his comments because the purpose was to encourage employees to vote in the union election, so they constituted “protected activity.” Then, in a startling extension of the protected finding, the Board ruled:

“... although [the employer] had a legitimate interest in questioning Grosso and lawfully did so, Grosso had a Section 7 right not to respond truthfully. We therefore find that Grosso’s refusal to admit responsibility for the comments cannot serve as a lawful basis for imposing discipline.” [Fresenius USA Manufacturing, Inc., 358 NLRB No. 138 (2012)].

The long-term effect of this ruling remains to be seen. It goes without saying, however, that if employees have a legal right to lie during internal investigations, every employer will be significantly hampered in trying to fulfill its legal obligations to conduct workplace investigations and enforce its personnel policies.