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Labor Board’s ‘Whore Board’ Graffiti Ruling Survives Review (1)

Aug. 9, 2022, 3:29 PMUpdated: Aug. 9, 2022, 5:03 PM

The NLRB had adequate justification to rule that an aluminum products maker violated federal labor law for firing a worker who wrote “whore board” on overtime sign-up sheets, a divided federal appeals court in Washington held.

The National Labor Relations Board’s decision against a Constellium NV subsidiary sufficiently addressed the conflict between Andrew Williams’s protections under the National Labor Relations Act and the company’s anti-discrimination obligations, the US Court of Appeals for the District of Columbia Circuit said in its 2-1 ruling Tuesday.

“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,” the court said.

The decision helps define the line between worker activity that’s protected by federal labor law and workplace harassment that’s forbidden by workplace anti-bias laws.

The D.C. Circuit had sent the case back to the NLRB in 2019, holding that the board’s 2018 ruling against Constellium Rolled Products Ravenswood LLC didn’t consider potential conflicts between the NLRA and anti-discrimination laws.

The NLRB’s subsequent, 2021 decision rejected the company’s argument that it fired Williams to comply with equal employment opportunity laws. Constellium previously had tolerated profanity, graffiti, and vulgarity in the workplace—including the term “whore board”—and punished Williams for protesting the overtime policy, the NLRB said.

The D.C. Circuit said in Tuesday’s ruling that the case record shows “profane, vulgar, and even harassing language” was regularly used at the facility without consequence.

“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,’” Judge Robert Wilkins, an Obama appointee, wrote for the three-judge panel’s majority.

‘This is Fatal’

Constellium failed to enforce its anti-harassment policy consistently—if at all—despite claiming to have changed its ways after losing a trial over two female workers’ hostile work environment claims, said the majority, which also included Judge Karen Henders, a George H.W. Bush appointee. A jury hit the company with a $1 million verdict.

“We recognize the difficulties that sometimes come with implementing new behavioral standards in the workplace,” the majority said. “However, we find no evidence in the record that Constellium began enforcing any such standards prior to Williams. This is fatal.”

Judge David Sentelle, a President Ronald Reagan appointee, dissented. He accused the board of putting its “fingers on the scales” to rule against the company, saying that comparing Williams’ conduct with other workers using vulgarities “is like comparing apples to oranges.”

“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,” Sentelle said. “I see unfairness in this record, but it is not on the part of the employer.”

Constellium’s lawyer, Michael Kenneally of Morgan Lewis & Bockius LLP, and the NLRB didn’t immediately respond to requests for comment on the ruling.

The case is Constellium Rolled Products Ravenswood v. NLRB, D.C. Cir., No. 21-01191, 8/9/22.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com