Unlawful Harassment or Protected Concerted Activity?

We’ve all heard before that consistency is the key to success. The U.S. Court of Appeals for the District of Columbia Circuit’s decision in Constellium Rolled Products Ravenswood, LLC v. NLRB, No. 21-1191 (D.C. Cir. 2022), illustrates this simple but crucial principle. In a 2-1 decision, the court held that the National Labor Relations Board (NLRB or Board) had sufficient justification for its finding that Constellium Rolled Products (Constellium) committed an unfair labor practice when it terminated an employee who wrote “whore board” on an overtime sign-up sheet.

The conflict between Constellium and the employee arose after Constellium unilaterally began requiring employees to write their names on sign-up sheets for overtime scheduling. In response, 50 employees filed grievances, and one employee wrote “whore board” at the top of two sign-up sheets. As one would expect from an employer seeking to avoid potential hostile work environment claims, Constellium discharged the offending employee. In fact, the company was found liable in a sexual harassment case after a jury trial less than a year prior to the termination.

The NLRB, however, decided that the employee was engaged in protected, concerted activity and that Constellium therefore violated the National Labor Relations Act by terminating him. After a lengthy and complicated appeals process, the D.C. Circuit upheld the Board’s decision. The court based its decision on evidence that Constellium’s workplace was permeated with obscene and vulgar language and that use of the term “whore board” was not only known to managers but also used by some supervisors. According to the court, Constellium’s failure to discipline its employees for such conduct under its anti-harassment policy in the past essentially confirmed that the termination was based more on the fact that the employee was protesting working conditions than on the offensiveness of the speech that he used. On that basis, the court agreed that the termination was unlawful.

TAKEAWAY: The Constellium Rolled Products decision does not stand for the proposition that employees are now immune from discipline when they use offensive speech in the course of protected, concerted activity. Rather, the decision illustrates that the NLRB will examine whether the employer has tolerated such speech in the past. As long as the employer has consistently and uniformly disciplined employees for using offensive speech, the Constellium Rolled Products decision does not preclude discipline when offensive speech is used in the course of protected, concerted activity. On the other hand, if offensive speech is tolerated in the workplace, an employer will not be able to rely on its anti-harassment policy to justify discipline when challenged before the NLRB. Employers should therefore ensure that they are enforcing their equal opportunity employment and anti-harassment policies whenever presented with such issues.