No, your eyes aren’t playing tricks on you.  You read that correctly.  The U.S. Court of Appeals for the D.C. Circuit recently affirmed a ruling by the NLRB which found an employer violated the National Labor Relations Act when it fired an employee who wrote a vulgar phrase on an overtime sign-up sheet.  But, the decision isn’t all bad news for employers. Examination of the facts underlying the ruling suggests that crass graffiti isn’t always protected activity.

In Constellium Rolled Products Ravenswood v. NLRB, the employer posted overtime sign-up sheets so that employees could volunteer for overtime shifts.  One employee apparently took exception to the practice and wrote the words “whore board” on the sign-up sheets.  After investigating the incident, the Company determined that the graffiti violated its anti-discrimination policy (among other policy violations).  The Company fired the perpetrator.

The terminated employee complained to the NLRB that his graffiti was protected under Section 7 of the NLRA because he wrote it in protest of the Company’s overtime practices.  The employer argued that the content of the graffiti was gender-based profanity that violated Company policy as well as anti-harassment laws.  The Board rejected the employer’s argument, pointing to evidence that the Company routinely allowed employees to use vulgar, profane, and crass language at work.  The evidence also showed that the Company did not discipline workers for writing graffiti on other Company property.

On review, the D.C. Circuit agreed with the Board.  It held that the employer’s tolerance of “extensive” vulgarity, profanity, and graffiti in the workplace rendered its defense ineffective.  The Company’s willingness to disregard such misconduct until it related to the overtime sheet supported the Board’s and the D.C. Circuit’s conclusions that the termination was based on the employee’s protest of overtime practices, and not his vulgarity.

Constellium puts a new spin on an age-old employment law axiom.  Employers must interpret, apply, and enforce their work rules consistently.  Selective application of workplace policies will often be used as evidence that other (sometimes unlawful) motives are at play.