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Consistency is Key in Enforcing Employer Policies

Posted on September 20, 2022

The Washington D.C. circuit of the U.S. Court of Appeals recently upheld a union employee’s right to protest his employer’s change in overtime procedures when the employer could not demonstrate consistent enforcement of its internal disciplinary policy.

While the case received attention as confirmation of the strength of protections for unionized workers, it also serves as a strong example of the perils of inconsistent enforcement of company policies.

The case involved an employee at an aluminum products manufacturing plant in West Virginia.  The company changed its system for overtime assignments by posting sign-up sheets on which employees could volunteer for overtime.  Previously, pursuant to a then expired collective bargaining agreement, employees would be solicited for overtime in-person or by phone.

The new system also provided that an employee who signed up for overtime and then failed to work would be subject to discipline, which was not a consequence under the prior system.

The change in overtime procedures led to 50 employees filing grievances, and to many others boycotting the new system and refusing to work overtime.  One employee protested the change by writing “whore board” on the sign-up sheet, leading to his termination for vandalism and the use of profanity.  He brought a claim with the National Labor Relations Board (NLRB), successfully proving that the company had violated his rights under Section 7 of the National Labor Relations Act (NLRA) which protects employees’ rights to “self-organization, to form, join, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .” (29 U.S.C § 157).

The D.C. federal appeals court reviewed and affirmed the NLRB’s finding that the employee’s action was protected by Section 7.  It is important to note that an NLRB order is given a “high degree of deference” and a court will only reverse an order “when the record is so compelling that no reasonable factfinder could fail to find to the contrary.”

The appeals court agreed that the employee was terminated not for the use of vulgar language or for defacing company property, but for the protected content of his writing in violation of the NLRA, Evidence showed that the employer had been tolerant of graffiti and the use of profane language in the facility in the past, indicating that the terminated employee was singled out for discipline.  In fact, the company had tolerated the use of the very term “whore board” by supervisors.

Dissenting opinion

One judge on the three-member appeals court filed a dissenting opinion, raising an interesting background to the case that was not a factor in the majority opinion.  In the year prior to terminating the employee, the company had incurred a $1 million jury verdict in a gender-based harassment case alleging that the company tolerated a hostile work environment.  The dissenting judge protested the NLRB’s disregard of the verdict as a factor in the company’s decision to discipline the employee.

The dissenter also found that this employee’s use of the vulgar term was more egregious that that of others, in that it would require employees, including females, to sign up for overtime directly under the words “whore board.”

This case is not only evidence of the increasing strength of worker protections under the NLRA, but of the importance of consistently applying company policies to avoid the appearance of unlawful animus in employment decisions.  Had this employer regularly disciplined employees for their use of profanity, it might have disproven a connection to protected activity and avoided over seven years of litigation.

The dissenting view also highlights that disparate treatment may be found at a time when an employer is working to correct its past lapses in policy enforcement.  This company had previously failed to remedy a hostile work environment, and on the heels of a sizeable verdict, it would no longer tolerate such behavior.

Employers wishing to improve their work environment and recommit to consistent enforcement of their anti-harassment policies should ensure that at a minimum, all managers are trained in this area.