D.C. Circuit Affirms NLRB Vulgar Graffiti Ruling
On August 9, 2022, the U.S. Court of Appeals for the District of Columbia held that the National Labor Relations Board (“NLRB”) had adequate justification to rule that an aluminum manufacturer (“Constellium”) violated the National Labor Relations Act (“NLRA”) by firing a worker who made a vulgar protest against the employer by writing the words “whore board” on overtime sign-up sheets — signifying the employee’s distaste for the company’s overtime policy. See Constellium Rolled Products Ravenswood, LLC v. NLRB, No. 21-1191 (D.C. Cir. 2022). The D.C. Circuit had previously remanded the NLRB’s 2018 ruling against Constellium, holding that the NLRB must consider potential conflicts between the NLRA and anti-discrimination laws in its analysis, as Constellium’s defense to the discharge was that the employee’s vulgar post was derogatory to women and violated the company’s anti-discrimination policy.
On remand, the NLRB ruled that the writing on the overtime sign-up sheets constituted protected activity under the NLRA in protest of Constellium’s overtime procedures, and that the employee was unlawfully fired as a result of engaging in such Section 7-protected conduct. As noted, Constellium argued that enforcing anti-discrimination laws and company policies motivated its decision to fire the employee for using gender-based profanity. The NLRB was not persuaded by this argument, finding that the underlying factual record indicated that Constellium otherwise tolerated extensive vulgarity, profanity, and graffiti in the workplace.
The D.C. Court of Appeals affirmed the NLRB’s decision, holding that Constellium’s failure to previously enforce behavioral standards against vulgar language was “fatal” to its defense that it fired the employee for his profanity, rather than in response to his protected activity.
As this recent decision by the D.C. Court of Appeals demonstrates, employers should be mindful of how they interpret and apply their own conduct policies and endeavor to consistently enforce them. Employers should be mindful of the potential tension between employees’ protected rights under federal, state and local anti-discrimination laws and the NLRA. The failure to consistently enforce policies and practices may result in the NLRB viewing an attempt to belatedly do so when an employee has engaged in Section 7-protected activity under the NLRA as pretextual.