Federal Appeals Court Affirms NLRB Decision Reinstating Employee Who Defaced Company Overtime Sign-Up Sheet by Writing “Whore Board”

What seemed to be a straightforward termination went sideways for Constellium Rolled Products, a maker of extruded aluminum products with over 13,000 employees worldwide. In 2020 Constellium implemented a new policy by which it started to discipline employees who voluntarily signed up to work an overtime shift and then failed to show up. (Sounds reasonable to me.) The company’s unionized employees preferred the company’s prior overtime system by which the company solicited employees individually about working overtime and did not discipline those who failed to show up.

The union and several employees filed grievances under the company’s collective bargaining agreement and unfair labor practice charges with the NLRB over the change. Some employees began to refer to the sign-up sheet as the “whore board.” One employee, Mr. Williams, went so far as to write “whore board” on the top of each sign-up sheet, which meant that employees who wanted to sign up for overtime had to sign a sheet of paper that identified them as “whores.”  Constellium suspended and then terminated Mr. Williams over the incident. 

The NLRB initially ruled that Constellium violated Williams’ Section 7 rights by terminating him for the “whore board” incident because the phrase, while offensive, was not so egregious that Williams lost the protection of the NLRA. (Section 7 of the National Labor Relations Act (“NLRA”) gives employees the right to engage in concerted activity to effect change to the terms and conditions of employment. Employees’ Section 7 rights, in some circumstances, include the right to engage in vulgar or offensive speech without losing the protections of the law.) The D.C. Circuit remanded the matter back to the NLRB, finding that the NLRB failed to properly assess the potential conflict between Section 7 of the NLRA and Constellium’s obligations under state and federal anti-discrimination laws to maintain a harassment-free workplace.

On remand, the NLRB again concluded that Constellium violated Williams’ Section 7 rights by firing him. This time, the D.C. Circuit affirmed the NLRB’s ruling. The NLRB and the court analyzed Mr. Williams’ termination the second time around differently than they did in the first case. Instead of analyzing whether the use of the term “whore board” was sufficiently offensive to warrant termination, the NLRB and the court analyzed whether Constellium would have terminated Mr. Williams for writing “whore board” or a similarly offensive phrase on the overtime sign-up sheet absent any connection to Section 7 activity. (Remember, the union and employees had filed ULP’s and grievances over the change in policy.) 

The NLRB and the D.C. Circuit explained that because Constellium had tolerated other employees verbally referring to the sign-in sheet as the “whore board,” as well as allowing them to generally use profanity in the workplace, Constellium could not show that it would have terminated Williams absent his complaints about the new overtime policy, which amounted to protected activity under Section 7. 

The D.C. Circuit Court explained: “We recognize the difficulties that sometimes come with implementing new behavioral standards in the workplace…However, we find no evidence in the record that Constellium began enforcing any such standards before Williams. This is fatal.”

Employer takeaway:   Now, more than ever, it is important to evaluate every decision resulting in discipline as if it will be challenged in court. The Constellium ruling was admittedly the result of an unusual series of events, but the principle holds true: 

when facing a disciplinary decision, even one that initially looks like a slam dunk, take a breath, step away and look at the situation as an objective third-party would. Look for the weak points and the aspects of the decision that may be open to challenge, and do your best to address them before making the decision. As HR professionals, we know that pushing back on a supervisor who really wants to fire that employee right now is not the most pleasant part of our jobs, but often a little push back now can avoid a lot of headaches later. 

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