The United States Court of Appeals for the District of Columbia Circuit recently affirmed a National Labor Relations Board (“NLRB”) decision requiring an employer to reinstate an employee whom it terminated after he wrote “whore board” on a voluntary overtime sign-up sheet. The name of the case is Constellium Rolled Products Ravenswood, LLC v. NLRB, — F.4th — (D.C. Cir. 2022). As described below, Constellium offers employers a substantial (and painful) insight into how far the courts and the NLRB will bend over backwards to find that employees have engaged in protected activity in the workplace.
The facts of the case are straightforward. In 2013, Constellium Rolled Products Ravenswood, LLC (“Constellium”) changed its system for scheduling overtime. The new system required employees who were interested in working overtime to sign their names on a sheet posted outside of the facility’s lunchroom. The new overtime sign-up system prompted significant objections from the company’s unionized employees, who preferred the company’s prior overtime system by which the company solicited employees individually about working overtime. The union and numerous employees filed grievances under the company’s collective bargaining agreement (“CBA”) and unfair labor practice charges (“ULPs”) with the NLRB. In addition, numerous employees began referring to the sign-up sheet in conversation around the plant as the “whore board.” One employee, Jack Williams, took it a step further. Instead of just calling it the “whore board,” Williams wrote the phrase on top of the sign-up sheet, which meant that employees who wished to sign up for overtime had to affix their names to a piece of paper that referred to them as “whores.” Constellium first suspended and ultimately terminated Williams over the incident.