A ruling of the National Labor Relations Board in favor of an employee fired for using vulgar language on a company bulletin board was affirmed in August by the U.S. Court of Appeals for the District of Columbia Circuit.

The ruling of both the NLRB and the court of appeals in Constellium Rolled Products v. NLRB regarding the employer's discipline for the comment is a perfect example of how confusing the protection of concerted activity under the National Labor Relations Act can be.

Although the facts in Constellium were not complicated, the case had a long history. It was tried before an NLRB administrative law judge, appealed to the NLRB, then appealed to the D.C. Circuit, remanded back to the NLRB and then appealed a second time to the D.C. Circuit, which resulted in this most recent decision.

The issue on remand and in the second appeal was whether the board adequately had considered the conflict between the company's obligations under the NLRA and its obligations under federal equal employment opportunity laws.

Again, what formed the basis of the unfair labor practice charge before the NLRB was fairly simple. There was an existing union at the company. There was a historical overtime policy that involved overtime being offered by telephone calls. Employee refusals to work overtime were not subject to discipline.

Then, the company changed the policy. Overtime would be required, and a written sign-in sheet was used on a company bulletin board. Under the new system, employees were required to sign up a week in advance of the overtime or else face the disciplinary procedure.

The new system was not popular, and employees verbally referred to the sign-in sheet as the "whore board." One employee eventually wrote the phrase on the sign-in sheet while it was on the bulletin board. The company fired him for it. No other employee previously had written this comment on anything.

Also, as further background, the company in 2015 lost a sexual discrimination lawsuit that included hostile work environment claims related to sexually inappropriate comments posted on the company bulletin board.[1]

Protected Concerted Activity

So, where does the case legally begin? It starts with the concept of protected concerted activity under the NLRA.

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.

Such activities by employees can include simply talking with one another, circulating a petition asking specific things of the company, openly joining with coworkers to talk directly to the company or the government, or participating in a concerted refusal to work. Activities can be in person or be virtual, such as on social media. Under the NLRA, workers cannot be discriminated against or retaliated against — as in disciplined — for these activities.

But when has this activity crossed the line?

Generally, harassing or threatening behavior, prohibited in all workplaces, has not enjoyed protection and thus could be the basis of discipline. Comments that were sexually discriminatory or harassing, for example, would not have been protected.

Enter the Constellium Case Analysis

In this case, an employee wrote the vulgar term on a posted overtime sheet. The company fired him for it because it was an unacceptable comment that was sexually harassing. The company took the position that the comment was not protected activity and that its discharge decision thus could not have violated the NLRA. According to the company, that should have been the end of the analysis.

The NLRB on remand and the appellate court on appeal disagreed. In so doing, the NLRB applied a new analysis to whether the company's discharge decision violated the NLRA.

The analysis involves a two-step process. First, the employee must show that they engaged in protected activity, that the employer knew of the activity and that there was discriminatory motivation by the employer that connected the employee's discipline with the protected activity.

The second step is that, if these initial requirements are met, the burden shifts to the company to show that the same decision would have been reached even had there been no protected activity involved in the employee's conduct.

The board has held that this process could adequately evaluate an employer's disciplinary justification based upon federal equal employment opportunity laws.

Applying this analysis to the facts in Constellium, regarding step one, the board first determined that the employee's written comment was protected activity. It was a protest to the company's overtime policy.

The board further held that the company knew about the activity. Finally, it held that the company had unlawful motivation because vulgarity was common at the company's workplace, and others were not disciplined for it.

As to the second step, the board held that the company failed to show that it had disciplined others for similar conduct in the past, that the company was turning over a new leaf, or that there was some other evidence that demonstrated that the company would have made the same decision absent the protected activity.

Again, the court of appeals agreed and affirmed the board's analysis and conclusions in this case.

Discipline in the Future

So, what does the future hold?

Employers must be prepared to meet their burden of showing that a disciplinary decision would be reached in a particular situation absent any protected activity. When considering employee discipline for what appears to be unacceptable behavior under equal employment opportunity laws, like harassing comments, employers must review the totality of the situation and evaluate the conduct in light of past history.

First, the severity of the conduct likely matters. For example, if instead a very offensive racial slur had been used, the outcome may have been very different in this case. In other words, the company would have had an easier time showing it did not tolerate such behavior in any circumstance.

Second, for conduct that is less severe, employers must evaluate whether past practice will support discipline in an individual case. If the conduct has been permitted in the past, the new discipline likely will be suspect, especially in a union environment.

Finally, to defend discipline on conduct that has been allowed in the past, the company must clearly articulate and implement a new policy that states that discipline will be imposed going forward. The company must be able to show that it has turned over a new leaf.

In short, employers must be sure that future discipline is not — and does not appear to be — related to protected concerted activity, or an unfair labor practice charge filed by the employee or the representative union likely will be successful.

Republished with permission. This article, "Employer Discipline Lessons In DC Circ. Vulgar Protest Ruling," was published by Law360 on September 19, 2022.