Constellium Rolled Products Ravenswood, LLC v. NLRB, 945 F.3d 546

Background:

Constellium and the union had a longstanding practice (2006–2013) of soliciting overtime in person/phone and not disciplining employees for refusing overtime after volunteering.
In April 2013 Constellium unilaterally replaced that practice with posted overtime sign-up sheets; some union members boycotted and called the sheets the “whore board.”
In October 2013 Andrew “Jack” Williams wrote “whore board” on two sign-up sheets; he admitted doing so during the employer’s investigation.
Constellium suspended and then discharged Williams for "willfully and deliberately engaging in insulting and harassing conduct on the job." An ALJ found his conduct unprotected; the NLRB reversed, treating the graffiti as protected activity under Atlantic Steel’s loss-of-protection framework.
The Board did not address Constellium’s argument that protecting Williams could conflict with federal and state anti‑harassment/equal‑employment laws; Constellium raised that argument before the Board and in a reconsideration motion.
The D.C. Circuit: upheld the Board on precedent and substantial-evidence grounds but remanded because the Board failed to address the potential conflict with equal‑employment‑opportunity obligations; petition for review granted, enforcement denied, remanded to the Board.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board unlawfully departed from precedent treating defacement of employer property as categorically unprotected	United Artists established that defacement is never protected; Board’s decision creates an affirmative right to deface	Board contends it has never held employee graffiti always unprotected and relied on later precedent permitting protection in some circumstances	Court held Board did not depart without explanation; it reconciled United Artists with later decisions and applied Atlantic Steel framework
Whether substantial evidence supports finding Constellium disciplined Williams because of the protected content of his message (NLRB §§8(a)(1),(3))	Constellium notes it tolerated other protests and argues Board lacked evidence of discriminatory intent	Board pointed to contemporaneous company documents/testimony citing "insulting and harassing conduct" as reason for discipline	Court found substantial evidence supports the Board’s conclusion that discipline targeted message content and upheld that finding
Whether the Board should have applied Wright Line (animus/intent) rather than Atlantic Steel	Constellium argued Board failed to apply Wright Line to show discriminatory motive	Board and GC applied Atlantic Steel (protected activity then loss-of-protection analysis)	Court accepted use of Atlantic Steel; noted Board did not perform Wright Line but substantial-evidence review of Atlantic Steel result was deferentially upheld
Whether the Board ignored conflict between NLRA protection and employer obligations under federal/state anti‑harassment laws and whether the issue was preserved	Constellium argued protecting Williams’ message would conflict with harassment‑free workplace duties and showed prior harassment verdict against it; raised issue before Board	Board asserted court lacked jurisdiction due to forfeiture because argument was not preserved	Court held Constellium adequately preserved the issue and remanded for the Board to address the potential conflict in the first instance

Key Cases Cited

United Artists Theatre, 277 NLRB 115 (1985) (NLRB decision often read to treat defacement of employer property as unprotected)
Port E. Transfer, 278 NLRB 890 (1986) (NLRB recognizing graffiti can be protected in some contexts)
Atl. Steel Co., 245 NLRB 814 (1979) (framework for when otherwise-protected conduct loses Act protection)
Wright Line, 251 NLRB 1083 (1980) (burden-shifting test for discriminatory motive in unfair labor practice cases)
Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (substantial-evidence standard for review of NLRB factual findings)
NLRB v. CNN Am., Inc., 865 F.3d 740 (D.C. Cir. 2017) (discussing Board’s treatment of precedent and stare decisis)
Oak Harbor Freight Lines, Inc. v. NLRB, 855 F.3d 436 (D.C. Cir. 2017) (standard of review for Board decisions)
NLRB v. Ingredion Inc., 930 F.3d 509 (D.C. Cir. 2019) (defining substantial-evidence review language)
Fort Dearborn Co. v. NLRB, 827 F.3d 1067 (D.C. Cir. 2016) (Board must explain departures from precedent)
Can-Am Plumbing, Inc. v. NLRB, 321 F.3d 145 (D.C. Cir. 2003) (Board cannot ignore conflicts between the NLRA and other federal statutes)
Consol. Commc’ns, Inc. v. NLRB, 837 F.3d 1 (D.C. Cir. 2016) (discussion of preservation and interplay between NLRA and other legal obligations)