An employee writes “whore board” on a company bulletin board — you can fire him, right? Not according to the NLRB and now the federal D.C. Circuit Court of Appeals. In Constellium Rolled Products v. NLRB, the employer’s discipline and the NLRB’s ruling on the resulting unfair labor practice charge is a perfect example of how “protected concerted activity” under the National Labor Relations Act can be a very confusing and unclear concept.

Back to Basics

So, what is “protected concerted activity”? Basically, this term means activity that is engaged in by a group of employees to improve or otherwise to affect working conditions, including, of course, wages and hours, but also other issues such as scheduling, work assignments, training, safety, and all sorts of similar workplace items. Under the NLRA, an employer cannot discriminate against (i.e., discipline) workers for these activities, whether they be verbal, in writing, or on social media.

But when does this activity “cross the line?” Generally, an employee’s harassing or threatening behavior, prohibited in all workplaces nowadays, does not enjoy protection and can be the basis of discipline. Comments that are sexually discriminatory or harassing would not be “protected” for example.

Does “Whore Board” Cross the Line?

So, what about “whore board”? In this case, an employee wrote this term on a posted overtime sheet, and the company fired him for it. The company took the position that it was an unacceptable comment because it was sexually harassing. And, by the way, the company had been hit with a million-dollar sexual harassment lawsuit a few years earlier due to sexual comments on a bulletin board.

The NLRB and the appellate court disagreed. The NLRB ruled that the comment was protected as a lawful protest to the company’s overtime policy. Apparently, the company failed to show that it had disciplined others for similar conduct in the past or that the company was “charting a new course.” The D.C. Circuit agreed.

Now What?

So, what do we do now? When considering employee discipline, be careful and thoughtful.  Even if the conduct looks like harassment (like “whore board”), take these steps:

• Does the employee’s conduct involve a complaint or protest against a company policy, such as overtime assignments or shifts?

• If so, look at your past practices, and be sure that any discipline imposed is consistent with precedent.

Be sure that the discipline is not and does not appear to be related to protected concerted activity, or you could end up responding to an unfair labor practice charge.