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.