Worker's firing over vulgar comment violated labor law, court rules

Signage is seen at the entrance of the United States Court of Appeals for the District of Columbia Circuit in Washington, D.C., U.S., August 30, 2020. REUTERS/Andrew Kelly
  • Worker wrote 'whore board' on OT sheet to protest company policy
  • Agency said company not motivated by concerns about harassment
  • Split appeals court agreed

(Reuters) - A divided U.S. appeals court on Tuesday upheld a labor board's ruling that an aluminum products manufacturer wrongly fired a worker who wrote "whore board" on an overtime signup sheet, despite the potential for his conduct to trigger sexual harassment claims against the company.

The U.S. Court of Appeals for the D.C. Circuit in a 2-1 ruling said Constellium Rolled Products failed to prove its claim that the 2013 firing, which came while broader protests of the company's overtime policies were taking place, was motivated by a desire to comply with anti-bias laws rather than anti-union animus.

The court upheld a 2021 National Labor Relations Board ruling that said Constellium had tolerated graffiti and vulgar language in other contexts, undermining the company's claim that it was concerned about fostering a hostile work environment.

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Constellium's lawyers at Morgan Lewis & Bockius did not immediately respond to a request for comment. Neither did the United Steelworkers of America union, which represents Constellium employees.

During the Obama administration, the NLRB in several cases including Constellium's, said that workplace disputes often become heated, and workers should not lose the protections of the National Labor Relations Act simply because they use profane language.

The D.C. Circuit in 2019 sent Constellium's case back to the board, saying it had failed to address the potential conflict between the company's obligations under the NLRA and anti-discrimination laws.

The Trump-era board again ruled against the company on remand. Constellium claimed its concerns were justified, pointing to a $1 million judgment it was ordered to pay in a sexual harassment lawsuit a year before it fired the worker who vandalized the signup sheet.

But the NLRB said Constellium could not prove that it would have fired the employee if his conduct did not involve an ongoing dispute over workplace policies. The board pointed to various instances where similar conduct, including the use of the word "whore," had been tolerated.

The D.C. Circuit on Tuesday agreed. Constellium could not cite a single other instance where it had enforced anti-discrimination policies in a similar manner, Circuit Judge Wilkins wrote, joined by Circuit Judge Karen Henderson.

In dissent, Circuit Judge David Sentelle said Constellium's termination of the worker was clearly reasonable, particularly in light of the recent judgment against the company.

"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 wrote.

The case is Constellium Rolled Products Ravenswood LLC v. NLRB, U.S. Court of Appeals for the D.C. Circuit, No. 21-1191.

For the NLRB: Joel Heller

For the union: Nathan Kilbert of United Steelworkers of America

For Constellium: Michael Kenneally of Morgan Lewis & Bockius

Read more:

8th Circuit upholds workers' rights to make racist comments while picketing

D.C. Circuit will consider if labor law protects worker's profane comment

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at