Constellium Rolled Products Ravenswood, LLC v. NLRB

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2022 Decided August 9, 2022

No. 21-1191

CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED INDUSTRIAL, AND
SERVICE WORKERS INTERNATIONAL UNION, LOCAL 5668,
INTERVENOR

Consolidated with 21-1194

On Petition for Review and Cross-Application
for Enforcement of an Order of the National Labor Relations
Board

Michael E. Kenneally argued the cause for petitioner.
With him on the brief was David R. Broderdorf.

Joel A. Heller, Attorney, National Labor Relations Board,
argued the cause for respondent. On the brief were Jennifer A.
 2
Abruzzo, General Counsel, Ruth E. Burdick, Deputy Associate
General Counsel, David Habenstreit, Assistant General
Counsel, Julie Brock Broido, Supervisory Attorney, and Jared
D. Cantor, Senior Attorney.

Nathan Kilbert argued the cause and filed the brief for
intervenor in support of respondent.

Before: HENDERSON and WILKINS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.

Dissenting opinion filed by Senior Circuit Judge
SENTELLE.

WILKINS, Circuit Judge. In 2018, the National Labor
Relations Board (“NLRB” or “Board”) decided that
Constellium Rolled Products had violated Sections 8(a)(1) and
(3) of the National Labor Relations Act (“NLRA”), 29 U.S.C.
§ 158(a)(1), (3), by suspending and terminating employee
Andrew “Jack” Williams for offensive conduct done in the
course of protected Section 7 activity, 29 U.S.C. § 157. See
Constellium Rolled Products Ravenswood, LLC, 366 NLRB
No. 131 (July 24, 2018). On review, this Court held that the
Board had based its decision “upon substantial evidence”
without “impermissibly depart[ing] from precedent without
explanation,” but had failed to address the potential conflict
between its interpretation of the NLRA and Constellium’s
obligations under state and federal equal employment
opportunity laws. Accordingly, the Court issued a remand.
Constellium Rolled Products Ravenswood, LLC v. NLRB
(“Constellium I”), 945 F.3d 546, 548–49 (D.C. Cir.
2019), judgment entered, 790 F. App’x 219 (D.C. Cir. 2019)
(per curiam).
 3

On remand, the Board affirmed its earlier decision, but
used a different analytical framework to do so. Compare
Constellium Rolled Products Ravenswood, LLC, 371 NLRB
No. 16 (Aug. 25, 2021) (using the framework from Wright
Line, 251 NLRB 1083 (1980), enforced on other grounds sub
nom. NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981), as
announced in General Motors LLC, 369 NLRB No. 127 (July
21, 2020)), with Constellium Rolled Products Ravenswood,
LLC, 366 NLRB No. 131 (July 24, 2018) (using the Atlantic
Steel Co., 245 NLRB 814 (1979), and “totality-of-the-
circumstances” frameworks). Constellium argues that the
Board has failed to reconcile the conflict upon which we
remanded the case and challenges the Board’s most recent
analysis. We conclude that the Board sufficiently addressed
the conflict between the NLRA and Constellium’s
antidiscrimination obligations and reasonably found that
Constellium terminated Williams in violation of Sections
8(a)(1) and (3) of the NLRA. 29 U.S.C. § 158(a)(1), (3). We
deny Constellium’s petition and grant the Board’s cross-
application for enforcement of its order.

I.

In 2013, Constellium unilaterally changed the system for
scheduling overtime assignments at its facility in Ravenswood,
West Virginia. Under the new system, employees interested in
working overtime were required to write their name on sign-up
sheets posted in a high traffic area—outside of the lunchroom
and near a timeclock. The system required employees to sign-
up for open slots a week in advance and failure to complete the
shift after signing up resulted in discipline. J.A. 13, 50.

The change prompted immediate protest among some of
the facility’s unionized workers. Those employees preferred
 4
the overtime procedure articulated in a since-expired collective
bargaining agreement under which Constellium solicited
individual employees in-person or over the phone.
Significantly, in that prior system, employees who failed to
work after volunteering were not disciplined. Intervenor Br. 4.
In response to the change, the Union filed an unfair labor
practice charge with the NLRB. 50 employees filed
grievances. And some employees—including Williams—
boycotted the new procedures by refusing to sign up for
overtime, J.A. 13, 159–223, actions that forced Constellium to
assign mandatory overtime, change work schedules to meet
production needs, and use outside contractors. Pet’r Opening
Br. 13. One further act of protest used to evidence certain
employees’ disdain for the change: the common use of the term
“whore board” to describe the overtime sign-up sheet. J.A. 13,
47, 51, 58, 107. But see id. at 67.

Constellium regularly tolerated the use of the offensive
term. Id. at 48, 51. That changed, however, when Williams
wrote “whore board” at the top of two sign-up sheets six
months after the implementation of the new procedure. Id. at
14, 232.

Amidst Constellium’s investigation into the writing’s origins,
Williams admitted to the act. In response, Constellium
suspended Williams and ultimately terminated his
employment. Id. at 14.

An NLRB Administrative Law Judge acknowledged that
Williams’s conduct was an expression of concern about a
 5
condition of employment but concluded that it was an
unprotected act of vandalism that did not occur in the course of
protected activity. Constellium Rolled Products Ravenswood,
LLC & United Steel, Paper & Forestry, Rubber, Mfg., Energy,
Allied Indus. & Serv. Workers Int’l Union, Loc. 5668, No. 09-
CA-116410, 2016 WL 5591055 (Sept. 29, 2016); J.A. 25, 27–
28. The Board’s General Counsel filed exceptions to the ALJ’s
decision, and upon review, the Board overturned the ALJ’s
recommendations. Constellium I, 945 F.3d at 549. In its view,
“in writing ‘whore board,’ Williams was engaged in a
continuing course of protected activity . . . and did not lose the
Act’s protection.” 366 NLRB No. 131, at *1.

In review of the Board’s conclusion, we held that the
Board had “not depart[ed] from its own precedent without
explanation and . . . did not create any new, unequivocal rights
of employees to deface company property” by holding that
Williams’s conduct was done in the course of protected Section
7 activity. Constellium I, 945 F.3d at 550. Additionally, we
held that the Board’s conclusion was based upon its finding that
“Constellium ‘disciplined Williams for the protected content of
his writing,’ rather than for defacing Company property,” a
finding supported by substantial evidence in the record. Id. at
550 (quoting 366 NLRB No. 131, at *2 n.8). Notwithstanding
our rejection of Constellium’s challenges to the Board’s
conclusion, we remanded the matter back to the NLRB to
address the potential conflict between the NLRA and
Constellium’s obligations to maintain a harassment-free
workplace. Id. at 551–52.

Relatedly, before addressing our concern on remand, the
Board announced a shift in its approach to deciding whether
employers have unlawfully disciplined employees who have
engaged in abusive conduct in connection with protected
Section 7 activity. In General Motors LLC, 369 NLRB No.
 6
127 (July 21, 2020), the Board declared that going forward, it
would employ the Wright Line framework, instead of several
others, including the two standards used by the Board to
conclude that Constellium had violated Sections 8(a)(1) and
(3). Id. at *1–2 (“In some instances, violations found under
these standards have conflicted alarmingly with employers’
obligations under federal, state, and local antidiscrimination
laws. . . . [B]y using these standards to penalize employers for
declining to tolerate abusive and potentially illegal conduct in
the workplace, the Board has strayed from its statutory
mission.”); see Wright Line, 251 NLRB 1083 (1980), enforced
sub nom. NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981),
cert. denied, 455 U.S. 989 (1982), approved in NLRB v.
Transp. Mgmt. Corp., 462 U.S. 393 (1983). The Board
observed that the Wright Line framework allowed employers
to demonstrate that a disciplinary action was taken in service
of its obligations under antidiscrimination laws separate and
apart from, and thus not responsive to, any protected Section 7
activity. Gen. Motors LLC, 369 NLRB No. 127, at *2.

Under the Wright Line framework, the General Counsel
must show that “(1) the employee engaged in Section 7
activity, (2) the employer knew of that activity, and (3) the
employer had animus against the Section 7 activity, which must
be proven with evidence sufficient to establish a causal
relationship between the discipline and the Section 7 activity.”
Id. If the General Counsel is successful, then the employer has
an opportunity to persuade the Board that it would have taken
the same action in response to the abusive conduct even in the
absence of the Section 7 activity. Id. Thus, an employer
“avoid[s] an unfair labor practice finding by showing by a
preponderance of evidence that the worker would have [faced
an adverse employment action] even if he had not been
involved with the union.” Wendt Corp. v. NLRB, 26 F.4th
1002, 1010 (D.C. Cir. 2022) (internal quotation marks and
 7
citation omitted) (alteration in original). Under this analytical
approach, the Board affirmed its earlier decision. See
Constellium, 371 NLRB No. 16, at *1.

The Board found that the General Counsel had made its
prima facie showing. It found “no dispute under the law of the
case that Williams engaged in protected Section 7 activity
when he wrote ‘whore board’” because in its earlier decision,
the Board found that Williams’s offensive act was “part of a
continuing course of protected activity” in protest of the
overtime procedures, and that Constellium disciplined
Williams for the content of his writing. Id. at *3. The Board
accurately points out that these findings were undisturbed by
Constellium I. Id.; see Constellium I, 945 F.3d at 548 (“The
Board’s decision was based upon substantial evidence and did
not impermissibly depart from precedent without
explanation.”). Similarly, the Board found no dispute about
whether Constellium knew of the Section 7 activity; it did.
Finally, the Board concluded that Constellium had animus
against Williams’s Section 7 activity. It relied on
“[c]ircumstantial evidence of disparate treatment of the
discriminatee,” id. at *4, namely, record evidence that
Constellium failed to discipline or censor the use of the epithet
“whore,” and “tolerated extensive profanity, vulgarity, and
graffiti in the workplace” before disciplining Williams, id. at
*5. See Wendt Corp., 369 NLRB No. 135 (July 29, 2020)
(“[C]ircumstantial evidence of animus under Tschiggfrie
Properties is clearly established by the [company’s] disparate
treatment of [an employee].”) (referencing Tschiggfrie Props.,
Ltd., 368 NLRB No. 120 (Nov. 22, 2019)).

Moving to Wright Line step two, Constellium could not
persuade the Board that it would have disciplined Williams for
writing “whore board” on the sign-up sheets absent his
protected Section 7 activity for much the same reasons.
 8
Constellium, 371 NLRB No. 16, at *5 (“[Constellium]
permitted the common use of the term ‘whore board,’” and its
“blatant disparate treatment of Williams while allowing others
to engage in extensive unacceptable behavior forecloses [it]
from establishing its Wright Line defense that it would have
discharged Williams under antidiscrimination laws even absent
his protected conduct.”).

Constellium timely filed a petition for review and the
Board cross-applied for enforcement of its order.

II.

Under Section 7 of the NLRA, “[e]mployees shall have the
right to self-organization, to form, join, or assist labor
organizations, . . . and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection. . . .” 29 U.S.C. § 157. “An employer violates
Section 8(a)(3) by taking an adverse employment action . . . in
order to discourage union activity.” Ozburn-Hessey Logistics,
LLC v. NLRB., 833 F.3d 210, 217 (D.C. Cir. 2016) (internal
quotation marks and citation omitted); see 29 U.S.C. §
158(a)(3). “The finding of a violation of Section 8(a)(3) would
also trigger a violation of Section 8(a)(1).” Napleton 1050, Inc.
v. NLRB., 976 F.3d 30, 39 (D.C. Cir. 2020); see 29 U.S.C. §
158 (a)(1).

On petitions for review of an NLRB order, “we accord a
very high degree of deference . . . and reverse [the Board’s]
findings only when the record is so compelling that no
reasonable factfinder could fail to find to the contrary.”
Ozburn-Hessey Logistics, 833 F.3d at 217 (cleaned up). Unless
the Board’s findings are “‘unsupported by substantial evidence,
or [the Board] acted arbitrarily or otherwise erred in applying
established law to the facts of the case,’” we must uphold the
 9
Board’s order. Wendt Corp., 26 F.4th at 1008 (quoting Novato
Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1100 (D.C. Cir,
2019)). “Our review of the Board’s conclusions as to
discriminatory motive is even more deferential, because most
evidence of motive is circumstantial.” Fort Dearborn Co. v.
NLRB, 827 F.3d 1067, 1072 (D.C. Cir. 2016) (internal
quotation marks and citation omitted).

With this standard of review and the foregoing in mind, we
turn to Constellium’s arguments that the Board erred in its
decision once again.

A.

Constellium asserts that the General Counsel failed to
establish its prima facie showing under General Motors’s
initial step. According to Petitioner, under the General Motors
framework, Williams’s writing of “whore board” does not
qualify as Section 7 protected activity. Pet’r Reply Br. 10.
Constellium reasons that it tolerated employees’ protected
activity—the overtime boycott and protests, including use of
the phrase “whore board”—for six months without disciplining
an employee, a finding acknowledged in Constellium I. See
945 F.3d at 550. Thus, the argument goes, the record bolsters
the view that Williams was fired for his offensive conduct, not
for protected activity, and that Constellium held no animus. As
a result, the General Counsel cannot establish a causal
relationship between Williams’s termination, relating to only
the offensive conduct, and the protected activity.

We disagree. Although General Motors LLC, 369 NLRB
No. 127 (2020), postdates Constellium I, it does not disrupt the
law of the case that Williams’s writing is protected activity.
Our previous opinion held that “there is substantial evidence
that Constellium disciplined Williams because of the content
 10
of his message.” Constellium I, 945 F.3d at 551. The relevant
evidence included Constellium’s admissions that it disciplined
Williams “for willfully and deliberately engaging in insulting
and harassing conduct on the job,” J.A. 125, because of the
content of his message, and that 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’).’” Constellium I, 945 F.3d at
551 (quoting Pet’r Opening Brief, Constellium I, 2019 WL
2404443, at *28 (D.C. Cir. June 6, 2019)).

We observed, however, that the Board “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” instead of the Wright Line
framework, “which would require a finding of animus, namely,
that Williams had been disciplined differently because he
engaged in protected activity.” Id.

The Board concluded, and this Court agreed, that
Williams’s writing was protected activity. Nothing in General
Motors changes that conclusion. Rather, General Motors
changes what else is required to find that an employer has
violated Sections 8(a)(1) and (a)(3). Instead of that ultimate
conclusion turning on the egregiousness of Williams’s
conduct, see Atlantic Steel Co., 245 NLRB 814 (1979), it now
turns on Constellium’s motive for disciplining Williams,
Wendt Corp., 26 F.4th at 1010, allowing the Board to balance
employers’ efforts to fulfill antidiscrimination obligations
against protecting Section 7 activity more holistically, as
required by our mandate on remand, see Constellium I, 945
F.3d at 551–52. As such, Constellium’s argument that
Williams’s writing is not protected activity in light of the
Board’s adoption of the Wright Line framework in General
 11
Motors is misplaced. Whether the Board has otherwise erred
in the rest of its Wright Line analysis, however, is a separate
question.

B.

To that end, Constellium challenges the evidence upon
which the Board found an unlawful motive in its decision to
discipline Williams. Our review of the Board’s decision is
highly deferential, Fort Dearborn Co., 827 F.3d at 1072, and
we find evidence in the record to support the Board’s
conclusion that Constellium acted with animus when it
punished only Williams for his use of the offensive term.

The Board relied on circumstantial evidence of disparate
treatment of Williams, when compared to other employees, to
establish animus in Constellium’s discipline decision, which is
strong evidence under Tschiggfrie Properties. 368 NLRB No.
120, at *11. It found that Constellium tolerated graffiti and the
common use of vulgarities without imposing discipline,
including use of the term “whore board,” even by supervisors.
Relying on the Board’s underlying decision, it reiterated that
“‘there appears to have been a general laxity toward profane
and vulgar language in the workplace.’” 371 NLRB No. 16, at
*4 n.10 (quoting 366 NLRB 131, at *2). This “unrebutted
evidence” led the Board to conclude that Constellium’s
decision to discipline Williams “singled [him] out from all
others who engaged in similar conduct” and that this disparate
treatment “evidence[d] a strong causal relationship between
Williams’ protected activity and [Constellium’s] discharge
decision, . . . precisely the type of circumstantial evidence
found to establish animus under Tschiggfrie Properties.” Id. at
*4.
 12
Petitioner argues, and our dissenting colleague agrees, that
this was error; Williams’s conduct was so unprecedented that
there was no comparator upon which to establish disparate
treatment. Again, we disagree. Although no other employee
put pen to paper, writing the phrase “whore board,” it was the
content of Williams’s message that led to his termination.
Constellium I, 945 F.3d at 551. The record reflects that the
label itself, used regularly in the course of protected activity,
went unpunished until Williams. And as we discuss in the next
section, Constellium failed to address written vulgarities as
well.

At the ALJ proceeding, Constellium employees testified
about the pervasive use of the term “whore board.” One
employee testified that “point blank . . . [the sign-up sheet] was
called the whore board.” J.A. 47. The employee confirmed
that he used that phrase “over the radio” and in front of
supervisors because “it was a running deal with us.” Id. at 48.
Even supervisors used the phrase. Id. Another employee
testified that he heard the phrase “[a] lot” and considered it a
“way of showing [employee] distaste for [the policy].” Id.
Williams testified that he had heard a supervisor use the phrase
several times and even heard it over the radio, when a foreman
“ask[ed] is there anybody going to come down and sign the
whore board for overtime.” Id. at 51. Despite widespread use
of the term, no employee was disciplined until Williams.
Furthermore, there was no evidence that Constellium adopted
and announced a policy or practice that it would no longer
tolerate the use of the phrase, but that Williams subsequently
used it anyway. In other words, Williams was treated
differently than any other employee for his use of the phrase.

To Petitioner’s credit, two managers testified that they had
not been aware of the use of the phrase to describe the overtime
sign-up sheet until Williams wrote it, and viewed the language
 13
as sexually charged, inappropriate, and abnormal for the plant.
J.A. 67, 69, 100–01. But dueling testimony about the use of
the phrase does not render the Board’s decision unreasonable.
“When confronted with competing versions of evidence, we
defer to the Board’s credibility determinations absent the
starkest error.” Consol. Commc’ns, Inc. v. NLRB, 837 F.3d 1,
15 (D.C. Cir. 2016). We find no such error.

The record also indicates that some employees who
continued to sign-up for overtime after the implementation of
the new policy suffered from the tension for months, in support
of Constellium’s argument that it disciplined Williams for
harassing conduct. Pet’r Opening Br. 36–38. One employee
present during Constellium’s investigatory interviews after
Williams’s act reported that another employee was bothered
because a friend had stopped talking to him over his decision
to use the new overtime procedure. J.A. 59. Likewise, a
manager testified that an employee stated that Williams’s act
was very offensive to him. Id. at 67. But the record does not
evidence any effort to curb the intensity of the protest prior to
Williams’s termination such that the Board’s finding of
disparate treatment amounts to error. “We may not reject the
Board’s findings simply because other reasonable inferences
may also be drawn.” Fort Dearborn Co., 827 F.3d at 1076
(citing Tasty Baking Co. v. NLRB, 254 F.3d 114, 125 (D.C. Cir.
2001)) (internal quotation marks omitted) (alterations
accepted). “A particular form of discipline is not necessarily
unlawful solely because an employer has imposed it for the first
time,” but in this case, protected Section 7 activity motivated
Constellium’s decision and enabled the Board to reasonably
find a causal relationship. St. George Warehouse, Inc. &
Merch. Drivers Loc. No. 641, Int’l Bhd. of Teamsters., 349
NLRB 870, 879 (2007).
 14
In sum, we agree that the General Counsel carried its initial
burden under Wright Line. Thus, we turn to the second element
of the Wright Line framework: whether Constellium proved
that it would have disciplined Williams in response to him
writing “whore board” on the sign-up sheets even in the
absence of the union protest.

C.

Here, Constellium again points to its toleration of other
protests, but also relies on testimony that Williams’s protected
activity played no part in his termination. For instance, it cites
the Company’s anti-harassment policy and rules of conduct to
suggest that Williams would have been terminated even in the
absence of an ongoing union protest. The Board’s rejection of
Constellium’s arguments is supported by substantial evidence.

Constellium argues that Williams “was not disciplined for
vulgarity, graffiti, or profane language,” but for “insulting and
harassing conduct” more severe than any other at
Constellium’s facility. Pet’r Opening Br. 36. But the record
reflects that profane, vulgar, and even harassing language could
be heard routinely at Constellium, and at times, heard over the
facility’s internal radio system, without consequence. J.A. 39,
49. To borrow one employee’s analogy: the plant’s language
could range from a G movie rating to NC-17; the use of “whore
board” rated “PG.” Id. at 58. The record further indicates that
there was graffiti branding specific employees with nicknames
in a potentially harassing fashion and graffiti containing vulgar
references in public areas. Id. at 39.

Constellium’s rules of conduct and anti-harassment policy
prohibit “harassment of any kind,” including “insulting or
derogatory language,” and consider it a “major” rule violation
to “[e]ngage in malicious mischief, horseplay, or other conduct
 15
encroaching upon the rights of . . . a fellow employee” or to
“use insulting language toward fellow employees.” Id. at 233,
242. Constellium asserts that it was particularly “sensitiv[e]”
to “possible harassment in the workplace” at the time it
disciplined Williams because less than a year prior, it had
received an adverse jury verdict for creating a hostile work
environment for two female employees. Pet’r Opening Br. 10,
46. Despite claiming to have turned over a new leaf,
Constellium has not enforced its policy consistently, if at all.
The Board concluded, based on substantial evidence, that even
after the jury verdict, Constellium failed to comply with its
“obligations under antidiscrimination laws” because the
company “allow[ed] wide use” of the offensive term for several
months, “until Williams alone was singled out for discipline
and discharge for use of the term.” Constellium, 371 NLRB
No. 16, at *5. Under the Wright Line framework, the employer
must demonstrate that it would have disciplined Williams
absent the Section 7 activity. NLRB v. Transp. Mgmt. Corp.,
462 U.S. at 401–02. Constellium’s failure to enforce its code
of conduct or anti-harassment policy dooms its assertion that it
would have fired Williams for use of the phrase or for an
offensive writing.

Constellium also emphasizes management’s belief that
Williams’s insubordinate acts continued after being
reprimanded for writing on the sign-up sheet. Specifically,
management claims that the day after reprimanding Williams
for his writing, Williams “continued this type of behavior in the
lunchroom by making comments loud enough” that another
employee could hear it and be upset by it. J.A. 85. But there
is no evidence that this incident ever took place. In fact,
testimony in the record in direct contradiction of Constellium’s
view of events casts serious doubt on the reasonableness of its
belief that it did. See Id. at 42, 90, 102, 104, 107. In sum,
 16
Constellium has failed to rebut the General Counsel’s prima
facie case.

D.

Finally, Constellium accuses the Board of misapplying the
Wright Line framework such that the Board’s decision still
conflicts with employers’ attempts to discipline impermissible
misconduct in adherence to obligations under
antidiscrimination laws. For some time, this Court has stressed
that “where the policies of the [NLRA] conflict with another
federal statute, the Board cannot ignore the other statute;
instead, it must fully enforce the requirements of [the NLRA],
but must do so, insofar as possible, in a manner that minimizes
the impact of its actions on the policies of the other statute.”
Can-Am Plumbing, Inc. v. NLRB, 321 F.3d 145, 153–54 (D.C.
Cir. 2003) (internal quotation marks and citation omitted). The
Board has done just that by using a framework that provides
Constellium the opportunity to prove that it would have
punished Williams for his conduct separate and apart from its
connection to Section 7 activity.

Constellium could have avoided NLRA liability by
showing that it had a history of enforcing laws and policies
against discrimination and harassment in a consistent manner,
or by showing that it was turning over a new leaf in that regard
when it disciplined Williams, but it showed neither. We
recognize the difficulties that sometimes come with
implementing new behavioral standards in the workplace.
However, we find no evidence in the record that Constellium
began enforcing any such standards prior to Williams. This is
fatal. Constellium’s lack of enforcement of its own anti-
harassment policies and code of conduct, not the Board’s
assessment of the record, forecloses its rebuttal argument. The
term at issue in this case is offensive, but the Board reasonably
 17
concluded that Constellium would not have disciplined
Williams for use of it absent his Section 7 activity.

III.

An employer may defend against allegations that its act of
discipline against an employee engaged in protected activity
violated the NLRA by demonstrating that its motive was
adherence to antidiscrimination laws. This approach addresses
“the potential conflict between the [Board’s] interpretation of
the NLRA and Constellium’s obligations under state and
federal equal employment opportunity laws,” Constellium I,
945 F.3d at 548–49, and satisfies the need for our earlier
remand. The challenges to the Board’s analysis under the
Wright Line framework fail because Constellium did not prove
that its actions were motivated by a desire to adhere to
antidiscrimination laws. Accordingly, we deny Constellium’s
petition for review and grant the Board’s cross-application for
enforcement.

So ordered.
 SENTELLE, Senior Circuit Judge, dissenting: Despite the
complicated treatment afforded this matter by the NLRB, it is
a rather simple case. From the record in this case, and other
items of public record, the petitioner is an employer that
incurred a million-dollar sexual harassment judgment against
it for maintaining a hostile workplace. Thereafter, an employee
of Constellium posted, in a conspicuous place, on a work
availability announcement, words describing his co-workers
(including females) as whores. Constellium terminated the
offending employee. The NLRB now has ruled that the firing
of this worker for contributing to a hostile workplace was the
result of anti-union animus.

In order to conclude that there was evidence to support the
Board’s finding in the first place, as I understand the test
applicable thereafter, the accused employer must show that it
would have taken the same action regardless of the protected
activity, perhaps, because of a legitimate business reason. Such
a legitimate business reason in this case is more than obvious.
Constellium did not wish to be hit with another million-dollar
judgment and wanted to avoid creating a hostile workplace.
Therefore, we move to the next step of the applicable test,
which is whether the tendered explanation is pretext, and
whether other evidence supports a conclusion that the anti-
union animus was a but-for factor in the firing. In this case, the
Board cites no such evidence. The Board tells us that the
evidence supports this conclusion because other workers were
not similarly terminated. This, in fact, is irrelevant since no
other worker had committed the same offensive act that the
terminated employee did. We are asked to say that the
evidence weighs enough to offset that legitimate business
reason, but something outweighs nothing every time. A
million-dollar judgment is in fact something. The desire to
avoid a hostile workplace is in fact something. A lack of
similar discipline is nothing if there isn’t a similar act to
 2
compare it to. That is the simple case. I will briefly deal with
the Board’s more complex handling.

In December 2012, Constellium incurred a $1 million
verdict for maintaining a hostile work environment. J.A. 236–
37. That case stemmed from a company practice under which
the CEO would post responses to anonymous questions on
company bulletin boards. J.A. 81. In one instance, the CEO
posted a question and response that included several terms
derogatory to women and targeted specific Constellium
employees. Id. Two female employees then brought a lawsuit
against Constellium for posting the question and response on
the public bulletin boards. J.A. 81. A jury found that
Constellium had maintained an unwelcome, gender based,
hostile or abusive employment environment. The two plaintiffs
were awarded $250,000 each in compensatory damages and
$250,000 each in punitive damages. J.A. 236–37.

Thereafter, in the present case, an employee, Andrew
“Jack” Williams, as a part of a larger protest of Constellium’s
new overtime policy, defaced two overtime signup sheets
describing employees willing to participate in the new overtime
scheme as “whores.” Constellium suspended and ultimately
terminated Williams. The NLRB has ruled that Williams’s
firing for contributing to a hostile workplace was actually the
result of anti-union animus. Constellium Rolled Products
Ravenswood, LLC, 371 NLRB No. 16 (Aug. 25, 2021). The
court today affirms this ruling.

Under the now-applicable Wright-Line test, Constellium
has the right to “prove it would have taken the same action even
in the absence of the” protected activity. General Motors LLC,
369 NLRB No. 127, at *2 (July 21, 2020). In its supplemental
order, the NLRB rejected Constellium’s argument that,
regardless of the protected activity, it would have disciplined
 3
Williams because of its obligations to maintain a harassment
free workplace. Constellium, 371 NLRB No. 16, at *5.

The Board supported its finding with evidence that
Constellium “tolerated extensive profanity, vulgarity, and
graffiti in the workplace even following its adverse jury verdict
in December 2012.” Id. According to the Board, Constellium’s
“blatant disparate treatment of Williams while allowing others
to engage in extensive unacceptable behavior forecloses
[Constellium] from establishing its Wright Line defense . . . .”
Id.

The Board’s factual finding that Constellium would not
have disciplined Williams but for his protected activity, like all
of its factual findings, must be “supported by substantial
evidence on the record considered as a whole.” 29 U.S.C.
§ 160(e)-(f). Substantial evidence “is ‘less than a
preponderance of the evidence,’ albeit ‘more than a scintilla.’”
Inova Health Sys. v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 2015)
(citation omitted). The Board’s conclusion does not cross even
this low bar.

First, in examining the whole record, we should not, like
the Board before us, disregard the import of the 2012 verdict
against Constellium. This verdict alone more than justifies
Constellium’s reaction to William’s conduct. Constellium had
experienced the consequences of failing to remedy a hostile
work environment, particularly one hostile towards its female
employees. It had every reason to respond strongly to
Williams’s writing “whore board” on the overtime signup
sheets by punishing him for using sexually offensive language
in an effort to intimidate and harass other employees. This part
of the record clearly cuts in favor of Constellium meeting its
rebuttal burden.
 4
In its decision, the Board attempts to support its conclusion
with evidence of Constellium “tolerat[ing] extensive profanity,
vulgarity, and graffiti in the workplace even following its
adverse jury verdict in December 2012.” Constellium, 371
NLRB No. 16, at *5. According to the Board, there was a
history of various employees using sexually explicit and vulgar
language at Constellium, Response Br. at 7, and because
management chose to discipline only Williams, it was because
of his protected activity.

This logic fails for two reasons. First, there is no evidence
in the record of any other employees engaging in conduct
comparable to Williams’s. The Board primarily cites to
evidence of employees using explicit language in conversation,
or even referring to the overtime sign-up sheet as the “whore
board” to each other, but this is irrelevant. None of the
referenced conduct compares to Williams’s. Williams, in full
view of other employees, walked up to a frequently used
bulletin board and in an effort to disparage and intimidate the
employees that may wish to sign up for overtime despite the
boycott by other employees, wrote “whore board” at the top of
both sign-up sheets. Williams knew full well that his message
would be visible to anyone walking by the bulletin board. More
to the point, anyone wishing to work overtime would be
required to put her name under that label.

Comparing Williams’s conduct with that of other
employees using vulgar language is like comparing apples and
oranges. The comparison provides no support for the Board’s
conclusion that Constellium disciplined Williams for engaging
in protected activity.

Similarly, the Board’s conclusion that Constellium’s
tolerance of vulgarity from employees indicates that Williams
was disciplined out of anti-union animus is undercut by one
 5
key fact: of all the Constellium employees engaging in the
overtime boycott, only Williams, the only boycotter who
engaged in such egregious, offensive conduct, was disciplined
by Constellium.

When compared with other users of vulgar language, or
even the term “whore board,” Williams was the only employee
to be disciplined. But when compared to all the employees
engaged in the boycott, of which there were many, Williams
was, once again, the only employee to be disciplined. While
considering one of these comparisons in isolation might lead
an observer to conclude that Williams was disciplined because
of either his protected activity or his use of sexually explicit
language, considering them together leads to no conclusion at
all. The two facts cancel each other out.

When considering the record without the Board’s fingers
on the scales, there is no support for the conclusion that
Constellium would not have disciplined Williams but for his
protected activity. The only fact supporting a motive for
Constellium’s actions is the $1 million verdict from 2012. A
desire to avoid a repeat verdict supports a conclusion that
Constellium would still have disciplined Williams even if his
writing on the overtime sheets was not protected activity.

Perhaps I am old fashioned, but I still believe that a finding
of an unfair labor practice should reflect something unfair on
the part of the employer. I see unfairness in this record, but it
is not on the part of the employer. I respectfully dissent.