You might recall Constellium Rolled Products Ravenswood, a 2018 NLRB case in which the Board held that offensive graffiti scrawled on an employee’s timesheet (“whore board”) constituted a lawful exercise of protected concerted activity.
Recently, the D.C. Circuit Court of Appeals held that the NLRB shirked its responsibility by not considering addressing any alleged conflict between its interpretation of the NLRA and the Company’s obligations under state and federal equal employment opportunity laws to maintain a harassment-free workplace.
The Company argued that protecting Williams’s “whore board” writing under the NLRA “would eliminate the Company’s ability to police the workplace and remove similar foul messages in the future.” … Williams’s conduct was also, the Company argued, “outside the bounds of what is acceptable … given the anti-harassment policies and laws.” Although the Board’s opinion acknowledged Williams’s words were “harsh and arguably vulgar,” the Board did not so much as advert to the potential conflict it was arguably creating between the NLRA and state and federal equal employment opportunity laws.
Given the NLRB’s recent request for “briefing on whether it should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature,” one should expect that Constellium Rolled Products will receive a closer examination on remand. A reversal, concluding that the use of “whore board” on an employee’s timesheet is outside the bounds of speech the NLRA protects, is a strong possibility.
This post originally appeared on the Ohio Employer’s Law Blog, and was written by Jon Hyman, Partner, Meyers, Roman, Friedberg & Lewis. Jon can be reached at via email at firstname.lastname@example.org, via telephone at 216-831-0042, on LinkedIn, and on Twitter.