D.C. Circuit Reaffirms That Vulgar Employee Conduct Can Be Protected Activity Under the NLRA, Even When it is Arguably Discriminatory

By Ashley Graves, Law Clerk

The Court of Appeals for the District of Columbia recently reaffirmed that an employer may be liable for disciplining an employee for engaging in protected activity under the National Labor Relations Act—even when the protected conduct is clearly in poor taste and otherwise violates the employer’s rules against harassment and discrimination.   The court’s decision in Constellium Rolled Products Ravensood, LLC v. NLRB[1] is a stark reminder that an employer’s non-discriminatory justifications for disciplining an employee must be genuine when the employee’s conduct is otherwise protected under the Act.

Constellium – Background

In 2013, Constellium Rolled Products Ravenswood (“Constellium”) unilaterally changed its scheduling system governing overtime assignments.   The new system required employees to sign up for overtime shifts on sign-up sheets outside of high-traffic areas (such as the break room or time clock).  In a change from previous policy, employees could be disciplined for signing up for overtime and then failing to appear at the overtime shift.   Some of Constellium’s employees, including the charging party, Andrew “Jack” Williams, protested and boycotted the change.  Mr. Williams and other employees boycotted the new procedures by refusing to sign up for overtime, resulting in Constellium assigning mandatory overtime, changing work schedules, and utilizing outside contractors.  Employees, including Mr. Williams, also began referencing the overtime sign-up sheet as the “whore board.”

Constellium tolerated the offensive nickname until Mr. Williams wrote “whore board” at the top of two overtime sign-up sheets.  Mr. Williams admitted to the act and Constellium terminated his employment.  However, the NLRB found that “in writing ‘whore board,’ Mr. Williams was engaged in a continuing course of protected activity . . . and did not lose the Act’s protection.”  Constellium appealed the NLRB’s decision to the Court of Appeals.

 The Lawsuit

Under Section 7 of the NLRA,[2] employees, regardless of whether they are unionized, have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.  Constellium tolerated the overtime boycotts and protests, including the widespread usage of the phrase “whore board,” for six months without disciplining anyone, and argued that its tolerance should demonstrate that Mr. Williams was fired for his offensive conduct (defacing company property with vulgar and sexist language that other employees could see) rather than for engaging in protected activity (i.e. protesting the change in Constellium’s overtime policies).

Recognizing the NLRB’s recent shift back to utilizing the burden-shifting test formulated in Wright Line[3] when otherwise-protected activity is accompanied by abusive conduct, the court focused on whether Constellium demonstrated that it would have disciplined Mr. Williams for his actions even in the absence of his protected Section 7 activity.    

Ultimately, the court found that Constellium’s stated justifications for disciplining Mr. Williams were not credible and that the evidence before it demonstrated that Constellium disciplined Mr. Williams based on the protected content of his speech.  Based on uncontroverted evidence and testimony, the term “whore board” was widely used in the workplace to describe the overtime sign-up sheets—even by supervisors and over radio announcements in the workplace—without consequence.  More tellingly, it was commonplace in Constellium’s shop for employees to use pervasively vulgar and inappropriate language (both verbal and in writing), without reprimand from Constellium.  In short, the NLRB and the court found that Constellium’s reliance on its anti-harassment policies and codes of conduct to justify Mr. Williams’ termination was pretextual.

The court upheld the NLRB’s reliance on circumstantial evidence of disparate treatment of Mr. Williams when compared to other employees to establish a violation of Section 7.  Because there appeared to be “a general laxity toward profane and vulgar language in the workplace,” the NLRB concluded, and the court affirmed, that Mr. Williams was singled out for his protected activity, which was enough evidence to establish Constellium’s animus in terminating him.  

Key Takeaways

All employers should be on notice that vulgar, offensive conduct may still be considered protected activity under the NLRA, even when, like Mr. Williams, the employee does not explicitly discuss or reference their opposition to the employer policy in question.  Importantly, even when an employer, like Constellium here, asserts that it took disciplinary action to satisfy anti-discrimination obligations, Courts will be unsympathetic to that argument if there is circumstantial evidence indicating that the employer’s discipline was due to the content of the protected speech, rather than any desire to comport with anti-discrimination laws or policies.  Additionally, this case should also encourage employers to be leery of tolerating vulgarity in the workplace generally, as any attempts to justify discipline based on the profane nature of the otherwise-protected speech may be found to be pretextual.

[1] Constellium Rolled Products Ravenswood, LLC v. National Labor Relation Board, 45 F.4th----, 2022 WL 3205795 (D.C. Cir. Aug. 9, 2022).

[2] 29 U.S.C. § 157

[3]251 NLRB 1083 (1980).