Constellium Rolled Products Ravenswood, LLC v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 22, 2019 Decided December 31, 2019

No. 18-1300

CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 18-1322

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.

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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.

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

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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

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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 interpretation of the NLRA and

the Company’s obligations under state and federal equal

employment opportunity laws.

Under Section 8(a)(1) of the Act, it is an unfair labor

practice for an employer “to interfere with, restrain, or coerce

employees” exercising their rights under the Act. Section

8(a)(3) makes it an unfair labor practice to discriminate “in

regard to hire or tenure of employment … to encourage or

discourage membership in any labor organization.”

Our review of the Board’s decisions is limited,

“uphold[ing] the decision of the Board unless it was arbitrary

or capricious or contrary to law, and as long as its findings of

fact are supported by substantial evidence in the record as a

whole.” Oak Harbor Freight Lines, Inc. v. NLRB, 855 F.3d

436, 440 (D.C. Cir. 2017). The Board’s findings of fact are

supported by substantial evidence if there is “such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” NLRB v. Ingredion Inc., 930 F.3d 509,

514 (D.C. Cir. 2019) (quoting Universal Camera Corp. v.

NLRB, 340 U.S. 474, 477 (1951)). The court’s standard of

review is generally deferential in light of the Board’s claim to

expertise in the area of labor relations. Id. “An unexplained

divergence from its precedent would,” however, “render a

Board decision arbitrary and capricious.” Fort Dearborn Co. v.

NLRB, 827 F.3d 1067, 1074 (D.C. Cir. 2016) (cleaned up).

*

Constellium argued the Board’s decision created an affirmative

right for employees to deface employer property. Because that

argument rests upon the Board’s alleged departure from precedent to

the contrary, we address it in our analysis of the Company’s first

argument.

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A. Departure from Board precedent

Recall that the Board held Williams was engaged in a

course of protected activity when he wrote “whore board” on

the overtime sign-up sheets. Constellium argues the Board

thereby departed without explanation, and therefore arbitrarily

and capriciously, from the precedent it set in United Artists,

that defacement of an employer’s property “is under no

circumstances a protected activity.” United Artists Theatre,

277 NLRB 115, 127–28 (1985). The Board’s insistence it has

“never held that employee graffiti is always unprotected” is

facially at odds with United Artists. 277 NLRB at 128. The

Board, however, went on to address the apparent inconsistency,

citing a precedent postdating United Artists that held

defacement of employer property can be protected activity in

some circumstances. Port E. Transfer, 278 NLRB 890, 894–

95 (1986) (holding pro-union graffiti on an employer’s

restroom wall was protected under the Act). The Board did,

moreover, “come to grips,” with the conflicting precedent,

NLRB v. CNN Am., Inc., 865 F.3d 740, 751 (D.C. Cir. 2017),

observing that the ALJ in United Artists did not simply apply a

per se rule against protecting defacement of the employer’s

property. The decision “also relied on findings that would be

consistent with an Atlantic Steel loss-of-protection analysis” to

determine whether the employee graffiti was egregious enough

to lose the protection of the Act. Thus, the Board did not depart

from its own precedent without explanation and, by

considering the defacement of company property within the

Atlantic Steel loss-of-protection framework, did not create any

new, unequivocal rights of employees to deface company

property.

B. Substantial evidence

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The Board’s decision was based upon its conclusion that

Constellium “disciplined Williams for the protected content of

his writing,” rather than for defacing Company property, here

noting that the Company “cited his supposed insulting and

harassing conduct” when disciplining Williams. Constellium

argues that because the Company tolerated other protests of the

new overtime procedures, the Board lacked substantial

evidence to show the Company fired Williams with

discriminatory intent, in violation of Section 8(a)(3). In

response, the Board points to a contemporaneous Company

document and corresponding testimony that Williams was fired

for “willfully and deliberately engaging in insulting and

harassing conduct” on the job to show that a reasonable

factfinder could conclude Constellium fired Williams for the

NLRA “protected content of his writing” and not simply for

defacing Company property.

“We review the Board’s findings of fact for substantial

evidence, which … requires not the degree of evidence which

satisfies the court that the requisite fact exists, but merely the

degree which could satisfy a reasonable factfinder.” Alden

Leeds, Inc. v. NLRB, 812 F.3d 159, 165 (D.C. Cir. 2016)

(quotation omitted). Under this deferential standard of review,

Constellium’s arguments are unavailing for two reasons.

First, as the Company itself observes, the Board “never

applied a Wright Line analysis,” which would require a finding

of animus, namely, that Williams had been disciplined

differently because he had engaged in protected activity.

Wright Line, 251 NLRB 1083 (1980). Instead, the General

Counsel and the Board majority considered the case under the

Atlantic Steel framework, looking first to whether Williams

was engaged in protected activity and then evaluating whether

his conduct was egregious enough to lose protection under the

Act. See Atl. Steel Co., 245 NLRB 814, 816 (1979) (laying out

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factors to consider when evaluating whether an action

otherwise protected under the Act is egregious enough to lose

protection).

Second, there is substantial evidence that Constellium

disciplined Williams because of the content of his message.

When it suspended him, the Company’s stated reason was for

his “willfully and deliberately engaging in insulting and

harassing conduct on the job,” which, as the Board noted, refers

to the content of his message. Indeed, in its brief, Constellium

says it “took aggressive action” based upon not only “how []

Williams displayed the message” but also because of “what he

wrote on Company property (a vulgar phrase ‘Whore Board’).”

Given those admissions, the Board’s conclusion that the

Company disciplined Williams based upon the content of his

message was well-supported. Therefore, the Company cannot

show the Board lacked substantial evidence.

C. Conflict with equal employment opportunity laws

Finally, Constellium argues the Board ignored the

Company’s obligations under federal and state anti-

discrimination 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).

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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

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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.

III. Conclusion

For the foregoing reasons, we grant Constellium’s petition

for review, deny the Board’s cross-application for

enforcement, and remand the case to the Board for proceedings

consistent with this opinion.

So ordered.