Section 7 of the National Labor Relations Act gives employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the Act protects these rights by making it an unfair labor practice for an employer “to interfere with, restrain or coerce employees in the exercise of the rights guaranteed” by Section 7. Federal and state anti-discrimination laws prohibit employers from discriminating against individuals based on certain protected characteristics, such as race, religion, sex, age, and other categories. These laws prohibit discriminatory harassment in the workplace.
In Constellium Rolled Products Ravenswood, LLC v. NLRB, No.18-1300 (D.C. Cir. Dec. 31, 2019), the United States Court of Appeals for the District of Columbia Circuit remanded a case to the National Labor Relations Board to address whether the employer lawfully terminated an employee for using inappropriate language at the workplace in connection with protected activity.
Constellium and the union representing its workers agreed for many years that the company would assign overtime by soliciting employees three days in advance of the intended overtime. The company and the union also agreed that employees would not be disciplined if they did not work overtime after volunteering to do so. Constellium unilaterally changed its overtime procedures in April 2013. The overtime solicitation process was replaced by a system in which employees volunteered for overtime by signing up a week in advance.
Some employees did not approve of the change and expressed their views by referring to the overtime sign-up sheets as the “whore board.” In October 2013, one employee wrote “whore board” above the overtime sign-in sheets. Constellium suspended and then discharged the employee for his action. The NLRB concluded that the employee was engaged in protected activity — the written comment was in protest of the change in overtime practices. The NLRB did not, however, “address Constellium’s argument that precluding discipline of [the employee] would conflict with the Company’s obligations to provide a workplace free of sexual harassment under state and federal equal employment opportunity laws.”
On review, the D.C. Circuit remanded the case to the NLRB to address the employer’s argument that the termination was lawful. In so doing, the Board will have another opportunity to address the NLRA’s conflict with anti-discrimination laws. Specifically, the court required the Board to address whether Constellium’s decision to discharge the employee was lawful because of “the Company’s obligations under federal and state anti-discrimination laws to maintain a harassment-free workplace.” As the court stated, “[a]lthough the Board’s opinion acknowledged [the employees’] 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.”
Addressing the conflict between federal labor law and anti-discrimination statutes is high on the Board’s agenda. In 2018, the NLRB General Counsel, relying on the Board’s decision in The Boeing Company, 365 NRLB No. 154 (Dec. 14, 2017), issued a memorandum regarding standards for assessing employer policies. Workplace civility rules are classified as “Category 1” rules, which are generally lawful to maintain. In Gen. Motors LLC & Charles Robinson, 368 NLRB No. 68 (Sept. 5, 2019), the Board invited interested parties “to file briefs to aid the Board in reconsidering the standards for determining whether profane outbursts and offensive statements of a racial or sexual nature, made in the course of otherwise protected activity, lose the employee who utters them the protection of the Act.” As we wrote previously, in November 2019, the Equal Employment Opportunity Commission urged “the NLRB to consider a standard that permits employers to address such conduct, including by disciplining employees, as appropriate.” The Board’s remand decision in Constellium is not the last word on the disconnect between federal labor law and federal and state anti-discrimination laws, however, it is a sign that additional clarity — and possibly alignment — is approaching.