On December 31, 2019, the D.C. Circuit issued a decision that addresses anew the tension that can arise from activity that is allegedly protected under the NLRA, when that activity also potentially creates a sexually or racially hostile work environment.
Here, an employer changed its procedures for requesting overtime, which led to some employees calling the bulletin board where the overtime sheets were posted the “whore board.” One employee wrote that term on the board, which caused the employer to fire that employee. This resulted in an NLRB petition that ended up with a Board ruling in favor of the employee, but the Board did not consider the employer’s argument that it had to fire the employee in order to address or remedy the sexually hostile work environment that this term created in the workplace. The D.C. Circuit reverses the NLRB, and remanded for the agency to consider that argument. Judge Millett (who was on the panel) had raised a similar argument in a concurring opinion several years ago.
Some excerpts follow:
Constellium Rolled Products Ravenswood, LLC v. National Labor Relations Board, No. 18-1300 (D.C. Cir. Dec. 31, 2019)
Before: TATEL and MILLETT, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge GINSBURG.
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.
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. . . .
. . . . C. Conflict with equal employment opportunity laws
Finally, Constellium argues the Board ignored the Company’s obligations under federal and state antidiscrimination laws to maintain a harassment-free workplace. See Can-Am Plumbing, Inc. v. NLRB, 321 F.3d 145, 153-54 (D.C. Cir. 2003) (explaining that “where the policies of the Act conflict with another federal statute, the Board cannot ignore the other statute”); see also Consol. Commc’ns, Inc. v. NLRB, 837 F.3d 1, 20-24 (D.C. Cir. 2016) (Millett, J., concurring). The Board does not answer this contention but instead claims the court lacks jurisdiction to consider it because the Company forfeited the argument by failing to raise it before the Board. Section 10(e) of the NLRA indeed states the court shall not, except in “extraordinary circumstances,” consider an objection that has “not been urged before the Board.” 29 U.S.C. § 160(e).
Whether an objection was preserved for consideration by the court depends upon “whether the objections made before the Board were adequate to put the Board on notice that the issue might be pursued on appeal.” Consol. Freightways v. NLRB, 669 F.2d 790, 794 (D.C. Cir. 1981); see also Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085, 1090 (D.C. Cir. 2016). In this case the petitioner’s objections were adequate.
In its Answering Brief in Response to the General Counsel’s Exceptions to the Decision of the ALJ, the Company raised the potential conflict with equal employment opportunity laws in four places. First, the Company described its experience with workplace harassment issues, including a recent state court case resulting in a $1 million jury verdict against the Company for creating a hostile work environment for two female employees. Second, the Company argued that protecting Williams’s “whore board” writing under the NLRA “would eliminate the Company’s ability to police the workplace and remove similar foul messages in the future.” Third, Constellium argued that, if the Board applied the totality of the circumstances test to determine whether Williams’s conduct should lose protection under the NLRA, then the conduct should not receive protection in part because it was in conflict with the Company’s “clear anti-harassment rule,” which it had “reaffirmed” in the wake of the $1 million judgment against it. Fourth, the Company argued that if the Board applied the four-factor Atlantic Steel test instead of the totality of the circumstances test, then the nature of Mr. Williams’s conduct, particularly his use of the word “whore,” “was exactly the type of language … that a jury in West Virginia State Court found created a hostile and abusive work environment” at Constellium’s plant. See also Atl. Steel Co., 245 NLRB at 816 (laying out a four-part test to determine whether an employee’s action was so egregious as to lose the protection of the Act). Williams’s conduct was also, the Company argued, “outside the bounds of what is acceptable … given the anti-harassment policies and laws.” Although the Board’s opinion acknowledged Williams’s words were “harsh and arguably vulgar,” the Board did not so much as advert to the potential conflict it was arguably creating between the NLRA and state and federal equal employment opportunity laws.
Constellium raised this issue again when it moved for reconsideration of the Board’s decision, arguing in part that the decision would make the Company liable under equal employment opportunity laws. The Board nonetheless denied reconsideration without considering the issue, Member Emanuel even stating separately that Constellium’s motion “has not raised any issue not previously considered.”
The arguments advanced by Constellium in its Answering Brief and reprised in its motion for reconsideration were “sufficiently specific to apprise the Board that the issue might be pursued on appeal.” Consol. Freightways, 669 F.2d at 793 (cleaned up). As the Board offers the court no argument on the merits of this point, we have no choice but to remand the matter for the agency to address the issue in the first instance.