September 26, 2022

Volume XII, Number 269

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September 26, 2022

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Did We Hear That Right? NLRB Holds Discipline for ‘Whore Board’ Graffiti Is Improper

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.

© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 228
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About this Author

John Hargrove Employment Lawyer Bradley
Partner

John Hargrove is a partner in the Birmingham office in the Labor and Employment and Construction and Procurement Practice Groups. He is chair of the Labor and Employment Group and is a Fellow in the American College of Labor and Employment Lawyers. He also is listed in Chambers USA, The Best Lawyers in America, and Alabama Super Lawyers.

John regularly represents public and private companies in mining, construction, manufacturing, medical, communications and warehousing industries, among others. He also represents...

205.521.8343
Anne R. Yuengert Employment Attorney Bradley Birmingham
Partner

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...

205-521-8362
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