How Constellium should inform employers’ policies and practices 

Assume an employee writes the words “whore board” on company overtime sign-up sheets. Serious misconduct, right? In fact, the employer faced with this situation terminated the employee for offensive conduct.

In Constellium Rolled Products Ravenswood, LLC v. NLRB, the U.S. Court of Appeals for the District of Columbia agreed with a National Labor Relations Board (NLRB) decision finding the termination was unlawful. The case illustrates that National Labor Relations Act protections sometimes can trump an employer’s right to regulate potentially offensive language at work.

What happened?

In 2013, the employer changed its process by which employees could sign up for overtime. The new system required interested employees to sign their names on a sheet posted outside of the facility’s lunchroom. The new overtime sign-up process prompted significant objections from the employer’s unionized employees, who preferred the employer’s prior overtime system. The union and numerous employees filed grievances under the employer’s collective bargaining agreement and unfair labor practice charges with the NLRB.

Numerous employees, including supervisors, began referring to the sign-up sheet as the “whore board.” One employee took it a step further and wrote the phrase on top of the sign-up sheet. The employer first suspended and ultimately terminated the employee over the incident.

In an unfair labor practice charge to the NLRB, the union argued that the language was protected by the National Labor Relations Act (NLRA).

In this case, NLRA trumps employee discipline

Section 7 of the NLRA gives employees the right to engage in concerted activity to effect  change to the terms and conditions of employment. Section 7 rights include the right to complain about terms and conditions of employment. In some cases, the NLRB concludes that even vulgar or offensive speech is protected. This case shows the difficult position employers are in, faced with a duty to prohibit offensive language on the one hand, and the potential argument that language is protected concerted activity on the other.

The D.C. Circuit initially reversed the NLRB’s decision, remanding the NLRB’s 2018 ruling and holding that the NLRB must consider potential conflicts between the NLRA and anti-discrimination laws in its analysis. In doing so, the court applied a standard for balancing the rights of employers and employees when someone is disciplined for protest behavior that may be considered abusive conduct.

Specifically, instead of analyzing whether the use of the term “whore board” was sufficiently offensive to warrant termination, the NLRB and the court analyzed whether the employer would have terminated the employee for writing “whore board” on the overtime sign-up sheet absent any connection to Section 7 activity. Essentially, the court looked at whether the employer knew the behavior was part of a larger protest and whether there was evidence it was motivated by that protest behavior when disciplining the employee. In this case, the court ruled that such evidence existed in the form of inconsistent application of company policies.

The D.C. Court of Appeals reasoned that because the employer had generally tolerated employees’ use of the specific phrase “whore board,” as well as their general use of profanity in the workplace, the employer could not show it would have terminated the employee absent his complaints about the new overtime policy. The majority opined:

“[employer] could have avoided NLRA liability by showing that it had a history of enforcing laws and policies against discrimination and harassment in a consistent manner, or by showing that it was turning over a new leaf in that regard when it disciplined [employee], but it showed neither. We recognize the difficulties that sometimes come with implementing new behavioral standards in the workplace. However, we find no evidence in the record that [employer] began enforcing any such standards prior to [employee]. This is fatal.”

Consistency is key

It is imperative that employers’ policies regarding workplace behavior and employee discipline are enforced and applied consistently and uniformly. It also is essential that when disciplining  employees for offensive language used in the context of complaints about working conditions, employers be mindful of protected concerted activity. Careful analysis of the surrounding circumstances and consistent application of policies will be key to having a defensible position if challenged under the NLRA.