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Constellium Rolled Products Ravenswood, LLC v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

December 31, 2019

Constellium Rolled Products Ravenswood, LLC, Petitioner
v.
National Labor Relations Board, Respondent

          Argued October 22, 2019

          On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Harry I. Johnson III argued the cause for petitioner. With him on the briefs were Daniel P. Bordoni and David R. Broderdorf.

          Jared D. Cantor, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Peter B. Robb, General Counsel, David Habenstreit, Acting Deputy Associate General Counsel, and Julie Brock Broido, Supervisory Attorney.

          Before: Tatel and Millett, Circuit Judges, and Ginsburg, Senior Circuit Judge.

          GINSBURG, SENIOR CIRCUIT JUDGE

         Constellium petitions for review of the National Labor Relations Board's decision that Constellium violated sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) and (3), by suspending and discharging Mr. Andrew "Jack" Williams. The Board has cross-petitioned for enforcement of its order.

         The Board's decision was based upon substantial evidence and did not impermissibly depart from precedent without explanation; the Board failed, however, to address the potential conflict between its interpretation of the NLRA and Constellium's obligations under state and federal equal employment opportunity laws. As further explained below, we grant Constellium's petition for review, deny the Board's cross-petition for enforcement, and remand the case to the Board for further proceedings consistent with this opinion.

         I. Background

         From 2006 to 2013, Constellium agreed with its union to assign overtime work by soliciting employees in person or by phone three days in advance and not to discipline employees for failing to work overtime after having volunteered to do so. Constellium Rolled Products Ravenswood, LLC, 366 NLRB No. 131, slip op. (July 24, 2018). In April 2013, Constellium unilaterally imposed new overtime procedures. Under the new procedures, overtime sign-up sheets were posted on a bulletin board and employees who volunteered for overtime were required to sign up a week in advance. Some union members protested the new procedures by refusing to work overtime and by referring to the overtime sign-up sheets as the "whore board."

         In October 2013 Williams wrote the words "whore board" at the top of two overtime sign-up sheets. During Constellium's investigation of the incident, Williams admitted to the writing. Constellium suspended Williams "with the intent to discharge him for willfully and deliberately engaging in insulting and harassing conduct." Shortly thereafter, Constellium fired Williams.

         An NLRB Administrative Law Judge determined Williams was not engaged in a "course of protected activity" when he wrote "whore board" on the overtime sign-up sheets. The General Counsel of the Board filed exceptions to the ALJ's decision. On review, the Board overturned the ALJ's recommendation based upon its view that "in writing 'whore board,' Williams was engaged in a continuing course of protected activity" related to the overtime boycott and that Williams's conduct was not so egregious as to lose the protection of the Act. In its Decision and Order, the Board did not address Constellium's argument that precluding discipline of Williams would conflict with the Company's obligations to provide a workplace free of sexual harassment under state and federal equal employment opportunity laws. Constellium filed a timely petition for review and the Board cross-applied for enforcement of its order.

         II. Analysis

         Constellium makes three arguments on appeal: (1) The Board departed without explanation from its precedent, which Constellium argues treats the defacement of company property as categorically unprotected;[*] (2) the Board lacked substantial evidence for its finding that Williams was disciplined because of the content of his writing; and (3) the Board failed to address the alleged conflict between its ...


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