In a recent decision, a Board panel majority found that an employee was unlawfully fired for writing “whore board” on an overtime sign-up sheet at work. This decision highlights the expansive nature of employee activity protected by the NLRA and the limited value that the NLRB can sometimes place on employer property rights.
In this case, the employer instituted a new overtime policy, which, unlike the old policy, included discipline for failure to work an overtime shift. As with the old policy, the employer maintained an overtime sign-up sheet. The union representing the employees filed grievances and unfair labor practice charges against the new policy. Due to the new disciplinary consequences of failing to work an overtime shift, employees began to refer to the sign-up sheet as the “whore board.”
Importantly, the employer took no action against employees for using the phrase “whore board” and acknowledged that employees (and supervisors) often used vulgar language at work. However, when an employee transformed words into action and wrote “whore board” in graffiti on the overtime sign-up sheet, the employer terminated his employment.
Section 7 of the NLRA grants employees the “right to … form, join, or assist labor organizations … and to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 has been construed to give employees the right to engage in activity to oppose employer policies, including by using profane or vulgar language (sometimes referred to as “shop talk”).
When an employee’s conduct reaches the outer bounds of protected activity, the NLRB essentially asks if the conduct is so outrageous that the employee loses the protections of the Act. As part of this inquiry, the NLRB tries to balance the employee’s Section 7 rights and the employer’s right to maintain order in the workplace.
Here, the Board panel held that writing “whore board” on the sign-up sheet was not so egregious for the employee to lose protection of the Act. As to the substance, the Board found the use of profanity to be relatively uncontroversial. In this regard, the use of the profane phrase “clearly impl[ied] that those who signed it were compromising their loyalty to the Union and their coworkers in order to benefit themselves.” Regarding the act of graffiti, the Board found that the act was spontaneous and grew out of the employees’ protest of the new policy. Furthermore, the Board noted that there was no effect on production at the facility and that the employer tolerated profanity in the workplace.
In dissent, Member Emanuel observed that the majority did not adequately consider the employer’s property rights when balancing the respective interests of the employer and employees. He further noted that prior Board decisions had held that property defacement – which undisputedly occurred in this case – was not protected activity under the Act. Emanuel called for the Board to reconsider the test for employee misconduct in a future case to give more weight to lawful employer property interests. Given current the republican-majority, Board-watchers should pay close attention to future cases involving conduct that is arguably more egregious than the “whore board” graffiti in this case. If such a case reaches the Board, it is reasonable to expect that it may change its approach to these cases. The case also serves as a reminder that even a more management friendly Board can still issue labor friendly decisions due to the fact that most decisions are issued by three-member panels that can include a labor friendly majority.
Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.