United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 22, 2019 Decided December 31, 2019

No. 18-1300

CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 18-1322

On Petition for Review and Cross-Application

for Enforcement of an Order of 

the National Labor Relations Board

Harry I. Johnson III argued the cause for petitioner. With 

him on the briefs were Daniel P. Bordoni and David R. 

Broderdorf.

Jared D. Cantor, Attorney, National Labor Relations 

Board, argued the cause for respondent. With him on the brief 

were Peter B. Robb, General Counsel, David Habenstreit, 

Acting Deputy Associate General Counsel, and Julie Brock 

Broido, Supervisory Attorney.
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Before: TATEL and MILLETT, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

GINSBURG, Senior Circuit Judge: Constellium petitions for 

review of the National Labor Relations Board’s decision that 

Constellium violated sections 8(a)(1) and (3) of the National 

Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) and (3), 

by suspending and discharging Mr. Andrew “Jack” Williams. 

The Board has cross-petitioned for enforcement of its order.

The Board’s decision was based upon substantial evidence 

and did not impermissibly depart from precedent without 

explanation; the Board failed, however, to address the potential

conflict between its interpretation of the NLRA and 

Constellium’s obligations under state and federal equal 

employment opportunity laws. As further explained below, we 

grant Constellium’s petition for review, deny the Board’s 

cross-petition for enforcement, and remand the case to the 

Board for further proceedings consistent with this opinion. 

I. Background

From 2006 to 2013, Constellium agreed with its union to 

assign overtime work by soliciting employees in person or by 

phone three days in advance and not to discipline employees 

for failing to work overtime after having volunteered to do so. 

Constellium Rolled Products Ravenswood, LLC, 366 NLRB 

No. 131, slip op. (July 24, 2018). In April 2013, Constellium 

unilaterally imposed new overtime procedures. Under the new 

procedures, overtime sign-up sheets were posted on a bulletin 

board and employees who volunteered for overtime were 

required to sign up a week in advance. Some union members 
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protested the new procedures by refusing to work overtime and 

by referring to the overtime sign-up sheets as the “whore 

board.” 

In October 2013 Williams wrote the words “whore board” 

at the top of two overtime sign-up sheets. During 

Constellium’s investigation of the incident, Williams admitted 

to the writing. Constellium suspended Williams “with the 

intent to discharge him for willfully and deliberately engaging 

in insulting and harassing conduct.” Shortly thereafter, 

Constellium fired Williams. 

An NLRB Administrative Law Judge determined 

Williams was not engaged in a “course of protected activity” 

when he wrote “whore board” on the overtime sign-up sheets. 

The General Counsel of the Board filed exceptions to the ALJ’s 

decision. On review, the Board overturned the ALJ’s

recommendation based upon its view that “in writing ‘whore 

board,’ Williams was engaged in a continuing course of 

protected activity” related to the overtime boycott and that 

Williams’s conduct was not so egregious as to lose the 

protection of the Act. In its Decision and Order, the Board did 

not address Constellium’s argument that precluding discipline 

of Williams would conflict with the Company’s obligations to 

provide a workplace free of sexual harassment under state and 

federal equal employment opportunity laws. Constellium filed 

a timely petition for review and the Board cross-applied for 

enforcement of its order. 

II. Analysis

Constellium makes three arguments on appeal: (1) The 

Board departed without explanation from its precedent, which 

Constellium argues treats the defacement of company property 
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as categorically unprotected;

* (2) the Board lacked substantial 

evidence for its finding that Williams was disciplined because 

of the content of his writing; and (3) the Board failed to address 

the alleged conflict between its interpretation of the NLRA and 

the Company’s obligations under state and federal equal 

employment opportunity laws.

Under Section 8(a)(1) of the Act, it is an unfair labor 

practice for an employer “to interfere with, restrain, or coerce 

employees” exercising their rights under the Act. Section 

8(a)(3) makes it an unfair labor practice to discriminate “in 

regard to hire or tenure of employment ... to encourage or 

discourage membership in any labor organization.” 

Our review of the Board’s decisions is limited,

“uphold[ing] the decision of the Board unless it was arbitrary 

or capricious or contrary to law, and as long as its findings of 

fact are supported by substantial evidence in the record as a 

whole.” Oak Harbor Freight Lines, Inc. v. NLRB, 855 F.3d 

436, 440 (D.C. Cir. 2017). The Board’s findings of fact are 

supported by substantial evidence if there is “such relevant 

evidence as a reasonable mind might accept as adequate to 

support a conclusion.” NLRB v. Ingredion Inc., 930 F.3d 509, 

514 (D.C. Cir. 2019) (quoting Universal Camera Corp. v. 

NLRB, 340 U.S. 474, 477 (1951)). The court’s standard of 

review is generally deferential in light of the Board’s claim to 

expertise in the area of labor relations. Id. “An unexplained 

divergence from its precedent would,” however, “render a 

Board decision arbitrary and capricious.” Fort Dearborn Co. v. 

NLRB, 827 F.3d 1067, 1074 (D.C. Cir. 2016) (cleaned up). 

* Constellium argued the Board’s decision created an affirmative 

right for employees to deface employer property. Because that 

argument rests upon the Board’s alleged departure from precedent to 

the contrary, we address it in our analysis of the Company’s first 

argument. 
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A. Departure from Board precedent

Recall that the Board held Williams was engaged in a 

course of protected activity when he wrote “whore board” on 

the overtime sign-up sheets. Constellium argues the Board

thereby departed without explanation, and therefore arbitrarily 

and capriciously, from the precedent it set in United Artists, 

that defacement of an employer’s property “is under no 

circumstances a protected activity.” United Artists Theatre, 

277 NLRB 115, 127–28 (1985). The Board’s insistence it has 

“never held that employee graffiti is always unprotected” is 

facially at odds with United Artists. 277 NLRB at 128. The 

Board, however, went on to address the apparent inconsistency,

citing a precedent postdating United Artists that held 

defacement of employer property can be protected activity in 

some circumstances. Port E. Transfer, 278 NLRB 890, 894–

95 (1986) (holding pro-union graffiti on an employer’s 

restroom wall was protected under the Act). The Board did, 

moreover, “come to grips,” with the conflicting precedent, 

NLRB v. CNN Am., Inc., 865 F.3d 740, 751 (D.C. Cir. 2017),

observing that the ALJ in United Artists did not simply apply a 

per se rule against protecting defacement of the employer’s 

property. The decision “also relied on findings that would be 

consistent with an Atlantic Steel loss-of-protection analysis” to 

determine whether the employee graffiti was egregious enough 

to lose the protection of the Act. Thus, the Board did not depart 

from its own precedent without explanation and, by 

considering the defacement of company property within the 

Atlantic Steel loss-of-protection framework, did not create any

new, unequivocal rights of employees to deface company 

property. 

B. Substantial evidence
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The Board’s decision was based upon its conclusion that 

Constellium “disciplined Williams for the protected content of 

his writing,” rather than for defacing Company property, here 

noting that the Company “cited his supposed insulting and 

harassing conduct” when disciplining Williams. Constellium 

argues that because the Company tolerated other protests of the 

new overtime procedures, the Board lacked substantial 

evidence to show the Company fired Williams with 

discriminatory intent, in violation of Section 8(a)(3). In 

response, the Board points to a contemporaneous Company 

document and corresponding testimony that Williams was fired 

for “willfully and deliberately engaging in insulting and 

harassing conduct” on the job to show that a reasonable 

factfinder could conclude Constellium fired Williams for the

NLRA “protected content of his writing” and not simply for

defacing Company property. 

“We review the Board’s findings of fact for substantial 

evidence, which ... requires not the degree of evidence which 

satisfies the court that the requisite fact exists, but merely the 

degree which could satisfy a reasonable factfinder.” Alden 

Leeds, Inc. v. NLRB, 812 F.3d 159, 165 (D.C. Cir. 2016) 

(quotation omitted). Under this deferential standard of review, 

Constellium’s arguments are unavailing for two reasons. 

First, as the Company itself observes, the Board “never 

applied a Wright Line analysis,” which would require a finding 

of animus, namely, that Williams had been disciplined 

differently because he had engaged in protected activity. 

Wright Line, 251 NLRB 1083 (1980). Instead, the General 

Counsel and the Board majority considered the case under the 

Atlantic Steel framework, looking first to whether Williams 

was engaged in protected activity and then evaluating whether 

his conduct was egregious enough to lose protection under the 

Act. See Atl. Steel Co., 245 NLRB 814, 816 (1979) (laying out 
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factors to consider when evaluating whether an action 

otherwise protected under the Act is egregious enough to lose

protection). 

Second, there is substantial evidence that Constellium 

disciplined Williams because of the content of his message. 

When it suspended him, the Company’s stated reason was for 

his “willfully and deliberately engaging in insulting and 

harassing conduct on the job,” which, as the Board noted, refers 

to the content of his message. Indeed, in its brief, Constellium

says it “took aggressive action” based upon not only “how [] 

Williams displayed the message” but also because of “what he 

wrote on Company property (a vulgar phrase ‘Whore Board’).” 

Given those admissions, the Board’s conclusion that the 

Company disciplined Williams based upon the content of his 

message was well-supported. Therefore, the Company cannot 

show the Board lacked substantial evidence.

C. Conflict with equal employment opportunity laws

Finally, Constellium argues the Board ignored the 

Company’s obligations under federal and state antidiscrimination laws to maintain a harassment-free workplace. 

See Can-Am Plumbing, Inc. v. NLRB, 321 F.3d 145, 153–54

(D.C. Cir. 2003) (explaining that “where the policies of the Act 

conflict with another federal statute, the Board cannot ignore 

the other statute”); see also Consol. Commc’ns, Inc. v. NLRB, 

837 F.3d 1, 20–24 (D.C. Cir. 2016) (Millett, J., concurring). 

The Board does not answer this contention but instead claims 

the court lacks jurisdiction to consider it because the Company 

forfeited the argument by failing to raise it before the Board. 

Section 10(e) of the NLRA indeed states the court shall not, 

except in “extraordinary circumstances,” consider an objection 

that has “not been urged before the Board.” 29 U.S.C. § 160(e).
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Whether an objection was preserved for consideration by

the court depends upon “whether the objections made before 

the Board were adequate to put the Board on notice that the 

issue might be pursued on appeal.” Consol. Freightways v. 

NLRB, 669 F.2d 790, 794 (D.C. Cir. 1981); see also Camelot 

Terrace, Inc. v. NLRB, 824 F.3d 1085, 1090 (D.C. Cir. 2016). 

In this case the petitioner’s objections were adequate.

In its Answering Brief in Response to the General 

Counsel’s Exceptions to the Decision of the ALJ, the Company

raised the potential conflict with equal employment 

opportunity laws in four places. First, the Company described

its experience with workplace harassment issues, including a 

recent state court case resulting in a $1 million jury verdict 

against the Company for creating a hostile work environment 

for two female employees. Second, the Company argued that 

protecting Williams’s “whore board” writing under the NLRA

“would eliminate the Company’s ability to police the 

workplace and remove similar foul messages in the future.” 

Third, Constellium argued that, if the Board applied the totality 

of the circumstances test to determine whether Williams’s 

conduct should lose protection under the NLRA, then the 

conduct should not receive protection in part because it was in 

conflict with the Company’s “clear anti-harassment rule,” 

which it had “reaffirmed” in the wake of the $1 million 

judgment against it. Fourth, the Company argued that if the 

Board applied the four-factor Atlantic Steel test instead of the 

totality of the circumstances test, then the nature of Mr. 

Williams’s conduct, particularly his use of the word “whore,” 

“was exactly the type of language ... that a jury in West 

Virginia State Court found created a hostile and abusive work 

environment” at Constellium’s plant. See also Atl. Steel Co., 

245 NLRB at 816 (laying out a four-part test to determine 

whether an employee’s action was so egregious as to lose the 

protection of the Act). Williams’s conduct was also, the 
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Company argued, “outside the bounds of what is acceptable ...

given the anti-harassment policies and laws.” Although the 

Board’s opinion acknowledged Williams’s words were “harsh 

and arguably vulgar,” the Board did not so much as advert to 

the potential conflict it was arguably creating between the 

NLRA and state and federal equal employment opportunity 

laws. 

Constellium raised this issue again when it moved for 

reconsideration of the Board’s decision, arguing in part that the 

decision would make the Company liable under equal 

employment opportunity laws. The Board nonetheless denied

reconsideration without considering the issue, Member 

Emanuel even stating separately that Constellium’s motion 

“has not raised any issue not previously considered.” 

The arguments advanced by Constellium in its Answering 

Brief and reprised in its motion for reconsideration were 

“sufficiently specific to apprise the Board that the issue might 

be pursued on appeal.” Consol. Freightways, 669 F.2d at 793

(cleaned up). As the Board offers the court no argument on the 

merits of this point, we have no choice but to remand the matter 

for the agency to address the issue in the first instance. 

III. Conclusion

For the foregoing reasons, we grant Constellium’s petition 

for review, deny the Board’s cross-application for 

enforcement, and remand the case to the Board for proceedings 

consistent with this opinion.

So ordered.