On August 9, 2022, the U.S. Court of Appeals for the District of Columbia issued its decision in Constellium Rolled Products Ravenswood, LLC v. National Labor Relations Board, No. 21-1191 (D.C. 2022), which affirmed the ruling of the National Labor Relations Board (NLRB) that Constellium’s termination of employee Andrew Williams (Williams) violated his Section 8(a)(1) and 8(a)(3) rights under the National Labor Relations Act (NLRA).

Summary

The court held that Constellium unilaterally changed its system for scheduling overtime assignments, which included having employees interested in overtime to write their names on sign-up sheets posted in a high traffic area outside the lunchroom. Some unionized employees, including Williams, protested the change. The record indicated that some employees and supervisors referred to the sign-up sheets as the “whore board,” and Constellium tolerated the use of the offensive term. However, things changed when Williams wrote “whore board” at the top of the sign-up sheets six months after the implementation of the new procedure. Williams admitted to the act, and Constellium suspended Williams, then fired him. The matter was brought before the NLRB Administrative Judge, then the NLRB.

Wright Line Analysis

The NLRB stated that it would use the framework from Wright Line, 251 N.L.R.B. 1083 (1980), which allows employers to demonstrate that a disciplinary action was taken in service of its obligations under antidiscrimination laws separate and apart from any protected Section 7 activity under the National Labor Relations Act (NLRA). Under this framework, the NLRB General Counsel must show that:

1. The employee engaged in Section 7 activity;
2. The employer knew of that activity; and
3. The employer had animus against the Section 7 activity which must be proven with evidence to establish a causal relationship between the discipline and Section 7 activity.

If the General Counsel is successful, then the employer has an opportunity to persuade the NLRB that it would have taken the same action in response to the abusive conduct even in the absence of the Section 7 activity.

In this case, the NLRB found that the General Counsel made its prima facie showing under the Wright Line framework. Williams’ writing of “whore board” was a continuing course of protected activity in protest of the overtime procedures, which constituted protected Section 7 activity. There was no dispute that Constellium knew about the Section 7 activity, and the NLRB concluded that Constellium had animus toward Williams based on circumstantial evidence that Constellium failed to discipline or censor others on the use of the term “whore” and tolerated extensive profanity, vulgarity, and graffiti in the workplace before disciplining Williams. The NLRB further determined that Constellium failed to demonstrate that it would have disciplined Williams for writing “whore board” absent his protected Section 7 activity. Constellium appealed the NLRB's decision to the U.S. Court of Appeals for the District of Columbia.

The Court's Affirmation

The court affirmed 2 to 1 the NLRB’s ruling. It stated in part that “Constellium could have avoided NLRA liability by showing that it had a history of enforcing laws and policies against discrimination and harassment in a consistent manner, or showing that it was turning over a new leaf in that regard when it disciplined Williams, but it showed neither." The court continued, "Constellium’s lack of enforcement of its own anti-harassment policies and code of conduct, not the Board’s assessment of the record, forecloses its rebuttal argument.” 

Judge David Sentelle issued his dissent noting that prior to the Williams incident, Constellium incurred a million-dollar sexual harassment judgment against it for maintaining a hostile work environment. Thus, Constellium had a legitimate business reason to discipline Williams—they wanted to avoid creating a hostile work environment. Moreover, Williams’ conduct of writing the offensive term in full view of coworkers is not comparable to coworkers’ use of obscenities. Judge Sentelle contended that when considering the record “without the Board’s fingers on the scales,” Constellium’s desire to avoid another hostile work environment verdict supports a conclusion that Constellium would have still disciplined Williams even if his writing on the sign-up sheets was not protected activity.

Takeaway

Employers, particularly those with unionized employees, should enforce their anti-discrimination and harassment policies actively and consistently in the workplace, and document when discipline becomes necessary.  Otherwise, offensive conduct, which may violate the company’s anti-discrimination and harassment policies, may be considered protected activity by the NLRB.

HEC members may contact their HR Consultant or call our hotline at 808-836-1511 for guidance in establishing and enforcing anti-discrimination and harassment policies, including issuing disciplinary action. Collective Bargaining Members may also contact their LR Consultant for further assistance.