Section 7 of the National Labor Relations Act (Act) gives employees the right to form unions, bargain collectively and to “engage in other concerted activities for the purpose of … mutual aid or protection”. Speaking out about conditions of employment on behalf of a group of employees would fall  within this protection. And, section 8 of the Act prohibits employers from interfering with employees’ exercising their section 7 rights.

So what is an employer to do when an employee purports to exercise section 7 rights, but at the same time does so in a way that in other circumstances could result in discipline or termination from employment? For example, what if an employee marked an overtime sign-up sheet with the words “whore board” in protest over a change in how the employer scheduled overtime? After all, most would consider this vulgar language. And some would argue that such language contributes to a toxic workplace atmosphere, in violation of state and federal anti-discrimination laws.

This issue was recently addressed by the United States Court of Appeals for the District of Columbia in Constellium Rolled Products Ravenswood, LLC. In an earlier decision, the Court agreed with the National Labor Relations Board (NLRB) that the employer had violated the Act by suspending and terminating an employee for the “whore board” comment, which was found to be an exercise of his section 7 rights. However, the Court also held that the NLRB’s reasons were deficient because they failed to adequately address the potential conflict between its interpretation of the Act and the employer’s obligations to maintain a harassment-free workplace. So the case was remanded to the NLRB to correct this.

By the time the issue later came before the NLRB, it had clarified that going forward in such cases the NLRB’s General Counsel would have to show that (1) an employee engaged in section 7 activity (2) the employer knew that, and (3) the employer did something to the employee (i.e. discipline or dismissal) because the employee had engaged in the protected activity. The NLRB also decided that in such a case, the employer could defend by showing that it would have taken the same action in response to the employee’s misconduct (i.e. vulgar, harassing or discriminatory conduct) even in the absence of section 7 activity.

In applying this test to the case at hand, the NLRB found that a violation of the Act was made out. Moreover, the employer’s defense failed because the evidence showed that the employee was singled out for disciplinary treatment. In particular, it showed that the employer had generally tolerated the expression “whore board” and extensive profanity, vulgarity and graffiti in the workplace, which suggested that the real motive for disciplining and dismissing the employee was his exercise of section 7 rights.

On review of the NLRB’s decision, a majority of the D.C. Circuit agreed with its analysis and conclusions. The Court majority did recognize that the employer had in place an anti-harassment policy that prohibited insulting or derogatory language and, moreover, less than a year before the challenged discipline had received an adverse $1 million jury verdict for creating a hostile work environment for two female employees. However, the Court majority remarked that despite the employer’s claim of having turned over a new leaf, it had not in fact enforced its policy consistently, which doomed the employer’s defense. Indeed, even after the jury verdict, the evidence showed that the employer tolerated use of the term “whore board” among its employees for months before taking the impugned disciplinary measures.

The Court majority held that the proper balance between the Act’s requirements and those of anti-discrimination laws is struck by using an analytical framework that allows an employer the chance to show that it would have disciplined or dismissed an employee regardless of whether the employee had engaged in protected section 7 activity. Thus, an employer can avoid liability under the Act by showing that it has historically enforced anti-discrimination and harassment laws and policies in a consistent manner. Alternatively, if it has decided to turn over a new leaf after a period of not doing so, it has to do so prior to taking adverse actions against an employee who has engaged in section 7 activity.

Takeaway

Given the difficulties that can arise in separating out legitimate discipline from illegal retaliation for section 7 activities, it is important for employers to establish clear written policies on expected workplace conduct, including what consequences can flow from a breach of the policies. All employees should be trained on these policies and the training should be documented to facilitate later proof. Moreover, as this case shows, consistent enforcement of the policies, which should also be documented, is required.

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