The United States Court of Appeals for the District of Columbia Circuit recently affirmed a National Labor Relations Board (“NLRB”) decision requiring an employer to reinstate an employee whom it terminated after he wrote “whore board” on a voluntary overtime sign-up sheet.  The name of the case is Constellium Rolled Products Ravenswood, LLC v. NLRB, — F.4th — (D.C. Cir. 2022).  As described below, Constellium offers employers a substantial (and painful) insight into how far the courts and the NLRB will bend over backwards to find that employees have engaged in protected activity in the workplace.

The facts of the case are straightforward.  In 2013, Constellium Rolled Products Ravenswood, LLC (“Constellium”) changed its system for scheduling overtime.  The new system required employees who were interested in working overtime to sign their names on a sheet posted outside of the facility’s lunchroom.  The new overtime sign-up system prompted significant objections from the company’s unionized employees, who preferred the company’s prior overtime system by which the company solicited employees individually about working overtime.  The union and numerous employees filed grievances under the company’s collective bargaining agreement (“CBA”) and unfair labor practice charges (“ULPs”) with the NLRB.  In addition, numerous employees began referring to the sign-up sheet in conversation around the plant as the “whore board.”  One employee, Jack Williams, took it a step further.  Instead of just calling it the “whore board,” Williams wrote the phrase on top of the sign-up sheet, which meant that employees who wished to sign up for overtime had to affix their names to a piece of paper that referred to them as “whores.”  Constellium first suspended and ultimately terminated Williams over the incident.

Section 7 of the National Labor Relations Act (“NLRA”) gives employees the right to engage in concerted activity to effect change to the terms and conditions of employment.  Employees’ Section 7 rights, in some circumstances, include the right to engage in vulgar or offensive speech without losing the protections of the law.  In this case, the NLRB initially ruled that the company violated Williams’ Section 7 rights by terminating him for the “whore board” incident because the phrase, while offensive, was not so egregious that Williams lost the protection of the NLRA.  The D.C. Circuit initially reversed the NLRB’s decision, finding that the NLRB failed to properly assess the potential conflict between Section 7 of the NLRA and Constellium’s obligations under state and federal anti-discrimination laws to maintain a harassment-free workplace.

On remand, the NLRB again concluded that Constellium violated Williams’ Section 7 rights by firing him, which the D.C. Circuit affirmed.  The NLRB and the court analyzed Williams’ termination differently than they did in the first case.  Instead of analyzing whether the use of the term “whore board” was sufficiently offensive to warrant termination, the NLRB and the court analyzed whether Constellium would have terminated Williams for writing “whore board” or a similarly offensive phrase on the overtime sign-up sheet absent any connection to Section 7 activity.  (The employees’ grievances, ULPs, and general complaints about the new overtime system clearly qualified as Section 7 activity.)  The NLRB and the D.C. Circuit reasoned that because Constellium had generally tolerated employees’ use of the specific phrase “whore board” as well as their general use of profanity and vulgarity in the workplace, Constellium could not show that it would have terminated Williams absent his complaints about the new overtime policy.  “We recognize the difficulties that sometimes come with implementing new behavioral standards in the workplace,” the majority said.  “However, we find no evidence in the record that Constellium began enforcing any such standards prior to Williams.  This is fatal.”

This Court of Appeals decision reinforces how critical it is for employers to be consistent in how they apply their policies and disciplinary standards, especially in light of the Biden NLRB’s expansion of protected employee rights under Section 7.