Can you lawfully fire an employee who writes "whore board" to protest a new overtime rule?

In Constellium Rolled Products Ravenswood, LLC, the NLRB held that an employer unlawfully fired an employee who wrote "whore board" on an overtime sign-up sheet.

How is this unlawful? Let's explore.

Following unsuccessful negotiations for a new union contract, Constellium unilaterally implemented a new overtime policy that required employees to sign up for overtime on a sheet posted on a bulletin board outside the lunchroom.

Employees were not happy about the new policy. Those who opposed it began calling the overtime sign-up sheet a "whore board," as they believed that those who used it to sign up for overtime were selling out their union.  "Whore board" quickly became common slang in the workplace (even among supervisors). There was no evidence that Constellium disciplined anyone for saying the expression.

One employee, Williams, went a step further. He wrote "whore board" on the sign-in sheet. Constellium fired him for "willfully and deliberately engaging in insulting and harassing conduct."

A 2-1 majority of the Board held that Williams was engaged in protected concerted activity when he wrote "whore board" on the overtime sign-up sheet.

1. It was clear that Williams was protesting his employer's unilateral change to the overtime policy; thus, his graffiti was protected.
2. While his graffiti was a lone act, it was concerted as a continuation of ongoing discussions in the workplace about the new overtime rule.
3. While "whore board" is "harsh and arguably vulgar," it is still protected because the employer had a history of otherwise tolerating the same language.   

The lone dissenter disagreed, arguing that the NLRA does not protect an employee who defaces an employer's property, and that the employer had a right to maintain discipline and order in its facility.

The limits of protected concerted activity has been a hot topic of debate for the past several years. This case illustrates that even with this Board's recent retractions of the Obama era's NLRB, the Board still gives wide latitude to employees when protesting clearly protected issues such as wages.

* Photo by MARK ADRIANE on Unsplash