United States Court of Appeals, District of Columbia Circuit
October 22, 2019
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
I. Johnson III argued the cause for petitioner. With him on
the briefs were Daniel P. Bordoni and David R. Broderdorf.
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,
Before: Tatel and Millett, Circuit Judges, and Ginsburg,
Senior Circuit Judge.
GINSBURG, SENIOR CIRCUIT JUDGE
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.
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
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."
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
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.
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