The U.S. Court of Appeals for the D.C. Circuit recently refused to enforce a decision by the National Labor Relations Board (NLRB) that involved a conflict between an employer’s obligation to maintain a harassment-free workplace under federal and state equal employment opportunity laws (such as Title VII of the Civil Rights Act of 1964 which, among other things, creates liability for employers who create or permit a sexually hostile work environment) and its obligation to comply with Section 7 of the National Labor Relations Act (NLRA), which prohibits employers from interfering with employees’ right to engage in concerted activity for mutual aid or protection.
In Constellium Rolled Products Ravenswood v. NLRB, the employer changed its procedure for assigning employees overtime work. The change was not well received by some of its union-represented employees, and when, as part of the new procedure, the employer began using a sign-up sheet for employees to volunteer for overtime, some employees refused to work overtime and began referring to the sign-up sheet as the “whore board.” Eventually, one employee wrote “whore board” on the sign-up sheet. The company fired that employee for defacing the sign-up sheet and, important to this case, because of the offensive, potentially harassing language he wrote on it, which could be seen by other employees.
The NLRB found the employer to have committed an unfair labor practice by firing the employee for engaging what it determined to be protected activity – that being the employee’s protest against the new overtime assignment procedure. The employer appealed to the D.C. Circuit, arguing that in finding that it unlawfully terminated the employee, the NLRB ignored the employer’s obligation under federal and state anti-discrimination laws to maintain a harassment-free workplace. The court noted that the NLRB’s response to the employer’s argument that the NLRB did not give due consideration to its competing legal obligations was only a technical one – specifically, that the employer did not preserve its “failure to consider” argument on appeal. The court however rejected the NLRB’s position, finding that the employer had preserved this argument, and since the NLRB did not address the substance of the issue raised by the employer, the court stated that it had no choice but to remand the matter back to the NLRB to address this issue in the first instance.
Coincidentally, the remand comes at a time when the Board is considering in another case the issue of the appropriate standard to be applied when an employee’s alleged protected activity involves profane outbursts or offensive statements of a racial or sexual nature. The Board requested briefs on this issue in September 2019 in two pending cases. More than 20 briefs have been submitted, which are being reviewed by the Board. Hopefully, 2020 will bring some needed clarity and better predictability with respect to this important issue.