D.C. Circuit Instructs NLRB to Revisit its Approach to Balancing Section 7 Rights with Other Employer Obligations

The Court of Appeals for the D.C. Circuit recently remanded a decision of the National Labor Relations Board (the "Board"), thus compelling the Board to revisit and clarify its position on the scope of Section 7 protection for speech or conduct which may subject an employer to liability under other statutes, including Title VII. The D.C. Circuit concluded that the Board failed to consider key arguments raised by the employer, namely, the conflict between the Board's interpretation of the National Labor Relations Act (NLRA) and an employer's obligation to provide a workplace free of unlawful harassment under state and federal equal employment opportunity laws.

In Constellium Rolled Products Ravenswood, LLC v. National Labor Relations Board, the employer posted overtime sign-up sheets on a company bulletin board. An employee bargaining unit member defaced the sheet, writing "whore board" on two pages of the sign-up sheets. The employee eventually was terminated, both for the content of the message, and for defacing company property. According to the employer, the employee was discharged for "willfully and deliberately engaging in insulting and harassing conduct." This language is key because the employer admittedly terminated the employee as much for the content of the message as for defacing the sign-up sheets.

The Board upheld a finding against the employer based on violations of Sections 8 (a)(1) and (3) of the NLRA. In reaching its conclusion, the Board focused on the fact that the employer disciplined the employee for the protected content of his writings," rather than for defacing company property, noting that the employer "cited his supposed insulting and harassing conduct." None of this was disputed by the employer.

A tension has long existed between the Board and other federal agencies—including the Equal Employment Opportunity Commission (EEOC)—regarding an appropriate response by an employer to conduct and statements that are offensive and potentially harassing. In Constellium, the employer highlighted four potential conflicts between Section 7 rights and equal employment opportunity laws:

• First, the company described a recent seven-figure jury verdict against the employer for creating a hostile work environment for two female employees.
• Second, the employer argued that protecting the employee's writing of "whore board" on employer property would "eliminate the Company's ability to police the workforce and remove similar foul language in the future."
• Third, the employer argued that the Board failed to consider the totality of the circumstances to determine whether the employee's writing warranted protection under the NLRA.
• Finally, the employer argued that under the Board's own precedent, the use of the word "whore" was exactly the type of language that creates a hostile and abusive work environment.

Since the Board failed to adequately address these arguments in its decision, the D.C. Circuit remanded the case back to the Board. Given the change in composition of the Board, this remand provides an opportunity for the Board to clarify its position with regard to the often conflicting obligations of an employer to proscribe words and conduct which might be considered harassing, and an employee's right to criticize—sometimes even in blunt and vulgar terms—employer policy with respect to the terms and conditions of employment. The EEOC has long sought dialogue with the Board on this topic. Now, the Board has a chance to balance these competing concerns and provide additional guidance to employers.