Federal Court Upholds NLRB Vulgar Graffiti Ruling
August 17, 2022
The U.S. Court of Appeals for the District of Columbia has held that the National Labor Relations Board (NLRB) had adequate justification to rule that an aluminum manufacturer violated the National Labor Relations Act (NLRA) by firing a worker who made a vulgar protest against the employer by writing the words “whore board” on overtime sign-up sheets — signifying the employee’s distaste for the company’s overtime policy. Employer argued that enforcing anti-discrimination laws and company policies motivated its decision to fire the employee for using sex-based profanity. The NLRB was not persuaded by this argument, finding that the underlying factual record indicated that Employer otherwise tolerated extensive vulgarity, profanity, and graffiti in the workplace. The Court upheld the NLRB’s decision, holding that Employer’s failure to previously enforce behavioral standards against vulgar language was “fatal” to its defense that it fired the employee for his profanity, rather than in response to his protected activity.