NLRB Upholds Employee’s Use of Offensive Language in Protest of Employer’s Overtime Policy

By Chris Johlie and Erin Walsh - Franczek Radelet P.C.

August 14, 2018

In Constellium Rolled Products Ravenswood, LLC, the National Labor Relations Board recently ruled in a 2-1 decision that the employer unlawfully discharged an employee who had written “whore board” on an overtime sign-up sheet.

Constellium had unilaterally implemented a new overtime policy after negotiations with the union that represented its employees. The policy required employees interested in working overtime to sign up on a sheet (posted on a bulletin board outside the lunchroom) seven days in advance and allowed the employer to discipline an employee who signed up for overtime but did not work it.

Employees were not happy about the new policy; the union grieved it, and those employees who opposed it began calling the overtime sign-up sheet a “whore board,” implying that those who signed up for overtime were compromising their loyalty to the union and their coworkers in order to benefit themselves and accommodate the employer. The term “whore board” became a relatively common expression, even among supervisors, and there was no evidence that the employer disciplined anyone for using the expression. That changed, however, when an employee wrote “whore board” on the sign-in sheet. The employer fired the employee for “willfully and deliberately engaging in insulting and harassing conduct.”

Board members Pearce and McFerran, both holdovers from the Obama administration, ruled that the employee who wrote “whore board” on the overtime sign-up sheet was engaged in protected, concerted activity under the National Labor Relations Act. Even though the employee acted alone in writing on the sign-up sheet, his conduct was “a continuation and outgrowth of the employees’ boycott and opposition to the [employer’s] implementation of an overtime policy that they not only opposed in principle, but also reasonably believed violated the existing terms and conditions of the expired collective-bargaining agreement.”

The Board majority conceded that “whore board” was “harsh and arguably vulgar,” but found no reason to conclude that the employee had forfeited protection under federal labor law because

1. the employee’s conduct was a single, brief act that appeared to be impulsive or spontaneous rather than deliberate;
2. there was no evidence that the conduct interrupted production; and
3. the employer had tolerated profanity in the workplace and had failed to discipline others for using the identical expression.

Board Member Emanuel, who was appointed to the Board by President Trump, dissented. He agreed with the administrative law judge’s conclusion that the conduct defaced employer property and therefore was unprotected, and the employer’s decision to fire the employee was justified by its right to maintain discipline and order in its facility.

This case may have come out differently if it had been assigned to a panel of Board members consisting of two Republicans and one Democrat, instead of the other way around. Since last December, the NLRB’s Republican majority has been behind several significant decisions that reflect a greater appreciation for employer interests when it comes to the interpretation of the National Labor Relations Act. Perhaps one of Member Emanuel’s Republican colleagues would have joined him in deciding the case based on the employer’s property interests. In the end, however, Constellium highlights the contours of what is and isn’t protected, concerted activity and importantly for all employers, demonstrates the importance of consistent enforcement of the rules.