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Case number 21-1191 et al.

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Constellian World Products Ravenswood LLC petitioner versus National Labor Relations Board.

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Mr. Keneally for the petitioner.

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Mr. Haller for the respondent.

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Mr. Kilbert for the intervener.

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Mr. Keneally, good morning.

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Please proceed.

[00:00:20] Speaker 04:
Thank you, Your Honor.

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And may it please the court.

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Michael Keneally on behalf of Constellian.

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I'd like to reserve three minutes for rebuttal.

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For 20 years,

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This court and its members have told the NLRB that employees do not need special leeway to engage in sexually or racially offensive conduct to further their interests under federal labor law.

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But employers do need broad latitude to discipline such misconduct to fulfill their responsibilities under the Equal Employment Opportunity Law.

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The board looked like it had gotten the message in 2020 in General Motors.

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That case replaced the board's flawed existing framework with the familiar right-line test.

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It recognized that sexually or racially offensive conduct is analytically distinct from protected conservative activity, even when it is performed for the sake of protected end.

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The ends don't justify the means.

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Now an employer may lawfully combat offensive misconduct, it just can't retaliate against protected activity.

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Unfortunately, the board's willing in this case is impossible to defend under that approach.

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And the clear signal of this may be the two main defenses that board council and the union propose in this court.

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First, a meritless appeal to the law of the case doctrine.

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And second, the same analytical mistake that General Motors condemns, namely, collapsing the distinction between the abuse of misconduct and the protected activity it seeks further.

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The board's decision on remand commits two significant errors, either of which is sufficient to deny enforcement.

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First, the board completely ignored its own prior finding that Constellium broadly tolerated the protected activity here, the overtime protest, as well as the ALJ's related finding that Constellium lacked animus for the protest.

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And second, the board fixated on supposed evidence of disparate treatment as its sole basis for animus.

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but it failed to scrutinize this evidence to ensure it actually suggests animus.

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And worse, this single-minded approach recreates the very conflict between labor law and the EEO laws that the board... Is animus really the only issue that's left beyond law of the case?

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I think animus is the central issue, Your Honor.

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We do have an argument at right line step two, but a lot of the evidence is the same for both prongs of the analysis.

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It's really a question of

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Who bears the burden?

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Of course, the board bears the burden on animus.

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It's that one.

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And that was the part of the right-line analysis that the ALJ seized upon in his original ruling.

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So I would suggest animus is probably the core issue for the court.

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And on animus, I think the first thing that the board did wrong was refuse to even analyze the board's own 2018 finding.

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that the company had tolerated a wide range of activities in support of the protest.

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Nothing was introduced that tolerated anything like what happened here, where you've got the actual offensive language written on the sign-up board, a video of him doing it.

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Nothing rose to that level or sank to that level, did it, of what they offer?

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No, there was no comparable episode in the record.

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The only things that the board cited in its decision as comparable misconduct were verbal use of the phrase.

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We're not clear exactly on the timing for that, but there's some evidence that it occurred before

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Mr. Williams and some evidence that it occurred after Mr. Williams wrote the words and then graffiti usage, but there's no indication that the company knew who was responsible for the graffiti.

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And the union's own representative, Mr. Beagle, testified to that at the hearing.

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So we do think that the only reasonable inference based on the employer taking no action for six months of overtime boycotting, when that caused significant operational issues for the company, which Mr. Harmerson testified about, is that the company took action shortly after Mr. Williams wrote the phrase on the bulletin board in essentially located

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location on employer property, which then prompted the specific individuals who had already filled out their own initials and signed up for overtime to complain that they felt offended.

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In fact, one of them asked the company to intervene and said that he felt targeted to Mr. Lawson.

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So there's nothing comparable to that that the employer could be accused of having failed to correct.

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And I think that's why the ALJ found this to be a pretty straightforward case for a finding of no animus.

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The board was at a minimum required to grapple with that history, which is not disputed.

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The facts aren't disputed on that point.

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The only possible dispute is significance.

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But I think that after the board said in 2018 that this history was not relevant under Atlantic Steel, the old framework,

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And then this court acknowledged the history and even said it might be significant under right line.

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But at that time, right line was not the operative test.

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So it wasn't significant then.

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But then when right lane became the test on remand after General Motors, the board had a duty to grapple with this evidence.

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And we cite a number of cases from this court that say that when the board completely fails to consider an important aspect of the problem, basic admin law, that the decision lacks reason decision making and is arbitrary and capricious, especially when

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the board also fails to explain the basis of its disagreement with the ALJ.

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So that would be our first submission before this court, is that the board failed to grapple with that extremely important evidence in the ALJ finding.

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On the disparate treatment point, we think is a second error, and in some ways, maybe even a more significant error, given its potential implications for future cases.

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Um, the board made no efforts to ensure that the comparable cases showed genuine pretext that the employer was not really motivated by what Mr Williams did, but was instead motivated issues really blend into one.

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I mean, the significance of desperate treatment is to show that our attempt to show that the board wouldn't have taken the action based on the wrongdoing alone.

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But and therefore it must have had any union animals.

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I think that's right, your honor.

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But I think

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The General Motors type of case and this type of case specifically, it's especially important to consider the evidence of disparate impact because under the hostile work environment laws, a plaintiff can prevail based on either severe or pervasive workplace mistreatment.

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And so courts look at that in hostile work environment cases in the aggregate.

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And so it's no excuse under the EEO laws that comparable misconduct has been ongoing.

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In fact, that just makes it worse.

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Under those laws, the employer has to be able to say enough is enough, whether because the conduct has gotten worse, as I think is the case here, or even if it just continues unabated, eventually the employer has to step in and put a stop to it.

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But under the board's approach, if we're not going to consider whether

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The employer had any other indications of animus towards the protected activity, and we're not going to really evaluate whether the episodes of past misconduct that went uncorrected are comparable in a meaningful way.

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Then the employer is really locked in to tolerating misconduct under the NLRA based on toleration of past episodes.

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And I think the union's brief is particularly transparent on this because it argues at 31 that it shouldn't be easy.

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for employers to turn over a new leaf if they failed the correct misconduct in the past.

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But that's exactly backwards under the E E O law.

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And so I think that we don't have to acknowledge kind of that approach though to, um, to or affirm what the board did here, right?

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I mean, if you've dug yourself into a hole,

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because you haven't really been enforcing, you the company, been enforcing anti-harassment and anti-discrimination laws.

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And so it's going to look like disparate treatment if you all of a sudden start doing so.

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And coincidentally, it's someone who is engaging in protected union activity when you finally make the decision to start doing so.

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then why should we have much sympathy for that?

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That doesn't mean that you can't tomorrow start enforcing those laws uniformly across the board.

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And if you have a situation where someone is arguably engaging in protected activity while they're doing something that's harassing or discriminatory,

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you won't be the subject of a successful kind of pretext action.

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Why isn't that just the way that this can work out?

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And why isn't that reasonable?

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Well, we certainly are arguing for, you know, a categorical rule of it just for treatment.

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Evidence can never be a sign of pretext here.

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There's no evidence that

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failed to take comparable action after it disciplined Mr. Williams with respect to other individuals who had prompted an investigation, who had caused their coworkers to complain in a similar way, and whose identities were known to the decision makers here.

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And so, but I think with this particular record, it's extremely hard to avoid falling into that catch-22 where the employer can't comply both with federal labor law

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and the EEO laws, given the history of tolerating the overtime protest that had gone on for six months, and that sort of temporal lack of any sort of temporal connection, temporal proximity between the start of the protest and... I think I heard you arguing before that they really haven't violated federal labor law.

[00:11:19] Speaker 07:
Yes, if they're acting without that anti-union animus,

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is simply disciplining for this egregious conduct, then there's no federal law violation, right?

[00:11:29] Speaker 04:
Yes, that is our position.

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I took Judge Wilkins to be asking, you know, if there is a federal labor law violation, are employers really in that catch-22?

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I'm sorry if I misunderstood that question, but, and my answer would be if there is this conflict and even if there is just some reluctance because of the risk of a federal labor law violation,

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that stops an employer from taking action that it should take to correct an existing case of misconduct in the workplace, then that would be the sort of conflict that concerns me.

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And I think that the court should protect them over my time and would like to save some time for rebuttal, if I may.

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All right.

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Thank you, Mr. Heller.

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Good morning, may it please the court, Joel Heller for the National Labor Relations Board.

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The court remanded this case to the board with instructions to address the interaction between the NLRA and anti-discrimination law.

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The board did that, applying its intervening General Motors decision and holding that the familiar right-line test should apply to these types of cases.

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The issue before the court now is the application of that test to the facts in this case.

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Employer motive is a question of fact, which is reviewed for substantial evidence.

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Substantial evidence has to be such as would convince a reasonable person.

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Is that correct?

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Substantial evidence, yes.

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Could any reasonable fact find... What is your evidence here should be convincing us that they would not have disciplined him for his egregious conduct, but for his protected?

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The evidence is the disparate treatment evidence, which the board raised out in the case.

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Repeat, please.

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The disparate treatment evidence.

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The disparate treatment presupposes a similarity of the person being treated, is it not?

[00:13:38] Speaker 03:
Yes, it's a similarity.

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Now, it doesn't have to be identical, but yes, similarity.

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That would be a dissimilar protected activity history and a similar violation for it to be fully relevant, wouldn't it?

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but has to be similar conduct in the past.

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What's your closest case, closest evidence of disparate treatment?

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That other employees, and not just employees, but also supervisors, were using the very same phrase that Mr. Williams... Did any of them write it on the sign-up board for their fellow workers who would have to be putting their names displayed in the overtime program?

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No, we don't have evidence of anything else.

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They did not, they had the same kind of strong evidence.

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Agee the video with any of these others that they had with him.

[00:14:21] Speaker 03:
Well, it's not contested that other people were using the same language, including supervisors.

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Now I agree.

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No one else was writing the time at which they knew about it is not established by your evidence is it

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The employee employer knew that, yes, there's testimony from employees that they use this phrase in front of supervisors, including Mr. Harmisen, who is one of the individuals that Concellium says was decision-makers.

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Is there evidence as to whether or not these other people had been unionists, such that if there were an anti-union animus,

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would not have extended to them or would have extended to them also.

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All of these individuals were using the phrase.

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The employees were using this race to protest the employers new overtime policy.

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So they were going they were talking about terms and conditions of employment.

[00:15:08] Speaker 07:
The only animus, the only access to which you're claiming the protection of the act is the use of the word.

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Is that correct?

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He didn't have any prior history of activists

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The record shows, right, the only protected activity we're talking about is his writing.

[00:15:28] Speaker 07:
Well, I'm wondering if you are claiming this evidence shows animus, why didn't they fire those other people who were engaging in similar activity, but not the same activity?

[00:15:43] Speaker 07:
Well, it is established.

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If it were only because of the, if anti-union animus was a but for cause, wouldn't they have fired them if they were union activists also?

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Well, it is established laws we cite in the brief that an employer doesn't have to fire all union supporters just to mean that they unlawfully retaliated against an individual.

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I mean, I can think of any number of reasons they could have imagined.

[00:16:05] Speaker 07:
The record shows that they'd been hit with a million dollar verdict for hospital workplace, right?

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That's true.

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In December.

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Is it really unreasonable to believe that they fired somebody for an egregious act contributing to a hospital workplace?

[00:16:20] Speaker 03:
The problem with that argument, Your Honor, is that other people were using profane and sexually tinged language.

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Is it really unreasonable to suppose that a company that had been hit with a million dollar hostile workplace judgment would fire somebody who was egregiously contributing to a hostile workplace?

[00:16:37] Speaker 03:
The abstract, no.

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But on the facts of this case, the question is whether they would have discharged Mr. Williams absent his protected conduct, not whether they could have.

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But the only protected conduct you have cited now

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is the egregious act of putting the language on the sign-up sheet.

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Protected conduct is protesting the overtime policy.

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Other people protested it and were not fired.

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He did a more egregious act and he was fired.

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I don't see what's unreasonable about believing that they were attempting to protect their status as a non-hostile workplace.

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So that I think goes back to the question of whether the other individuals were similarly situated.

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Yes, it does.

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Yes, it does.

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And that's a question of fact, which is reviewed for substantial evidence.

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Now, the board found that they were similar.

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And also, I would point out that this court in its prior holding in this case,

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held, found that, uh, that Constellian disciplined Williams because of the content of his message, not that it was written down or where it was, but the content, the words that he was using and other employees were using those exact same words and they were not discharged.

[00:17:48] Speaker 03:
That is classic disparate treatment evidence.

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And the fact that other employees were not targeted for their union activity again is not legally dispositive.

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Because an employer could, for instance, think that Mr. Williams was the wrong leader.

[00:18:01] Speaker 07:
So what would you say is the reason, if there is the disparate treatment of it, what would you say is the real reason for it, non-protectual reason for it, or even protect, or what reason would they fire him if not then, if it's really based on animals?

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For example, they could have thought he was the ringleader of the overtime protest movement, and they needed to make an example out of him.

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They could have decided, well, this is the straw that broke the camel's back.

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We've been putting up with this overtime protest long enough, but now we're going to go after something.

[00:18:30] Speaker 07:
Yeah, he went farther than the other side and the straw broke the camel's back.

[00:18:33] Speaker 07:
I'm not sure that I see how you have a case on that.

[00:18:36] Speaker 03:
Well, again, Your Honor, I would say that I would point you to this court's, the previous decision in this case before the remand where it says they fired him because of the content of his message.

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uh, which refers to the content of his message, what he wrote, not the fact that the language that he used, not the fact that he wrote it on a bulletin or on the overtime sheet.

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And so I don't think he can get away from that finding and saying, well, we fired him for writing it down.

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So therefore he's different than these other individuals.

[00:19:05] Speaker 07:
The court has already told employees were expected to put their names is not different than using it in conversation in your

[00:19:16] Speaker 03:
The employees' names, it was a printed list.

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Everyone's name was already on the list, including Mr. Williams' name.

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Now, some employees would have to check, like, I will work overtime this week.

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But I would also point you to evidence that a supervisor on the radio used this very same phrase and told employees, hey, come down and sign the horror board.

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And so anyone who thereafter went and signed their names

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was if they were subjecting themselves to the same language.

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So the fact that you wrote it on the spot is not in that in that sense different than what other people were doing.

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And there was no discipline.

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I would also point out that other individuals continue to use other employees continue to use the same phrase after Mr. Williams fired.

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That's a J.A.

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107.

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And there's no evidence that any of them were disciplined.

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So again, this idea that in Constellium was turning over a new leaf is just not actually supported under the facts of this case.

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And an employer cannot use EEO law to immunize retaliation under the NLRA.

[00:20:22] Speaker 07:
Conversely, are you saying that a union employee can use union status to immunize

[00:20:30] Speaker 07:
contributing to the hospital workplace?

[00:20:32] Speaker 07:
No, no.

[00:20:33] Speaker 07:
So isn't that a wash?

[00:20:34] Speaker 07:
That argument washes out, doesn't it?

[00:20:36] Speaker 03:
I acknowledge that there's a tricky, that can be a tricky situation.

[00:20:38] Speaker 03:
There can be a rock and a hard place.

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But here, Concellium put itself in between the rock and the hard place by not taking action against anyone else who is using this language and other profane language.

[00:20:48] Speaker 07:
They may have put them on the rock side, but he put them in the hard place, didn't he?

[00:20:53] Speaker 03:
Well, but he was using the same language.

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And so if they really felt they needed to get rid of this language, they could have done so.

[00:20:59] Speaker 03:
They could have done so earlier.

[00:21:00] Speaker 03:
They could have even done so in response to Mr. Williams, I would submit.

[00:21:07] Speaker 03:
They could have said, everyone, uniformly, just like Judge Wilkins was saying, a uniform policy, everyone, stop using this phrase.

[00:21:15] Speaker 03:
And that would have gotten them some of the way, or perhaps all of the way, it would have gotten them to respond to their fears of hostile work environment in a way that doesn't run afoul of the NLRA.

[00:21:27] Speaker 03:
But they didn't do that.

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Because we do have two statutes here.

[00:21:30] Speaker 03:
It does matter that he was engaged in NLRA-protected activity when protesting the overtime policy.

[00:21:37] Speaker 03:
I would point to this court's, I think they cite in their brief language from the court's decision in ADTRANS, which was about a broad workplace rule.

[00:21:49] Speaker 03:
But I would point the court to page 27 to 28 of that opinion, where it says, we recognize that the uneven or partial application of a rule against abusive and threatening language could constitute an unfair labor act.

[00:22:03] Speaker 03:
And that's the situation we have here.

[00:22:04] Speaker 03:
An uneven and partial application

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of an anti-harassment policy to single out someone engaged in NLRA-protected activity.

[00:22:14] Speaker 03:
That is retaliation.

[00:22:15] Speaker 03:
Dispute treatment is classic evidence of retaliation.

[00:22:18] Speaker 03:
That answers the question here in this case.

[00:22:23] Speaker 03:
I ask that you enforce the board's opinion, unless there are further questions.

[00:22:29] Speaker 02:
All right.

[00:22:30] Speaker 02:
Thank you, Mr. Kilburg.

[00:22:42] Speaker 05:
May it please the court, Nathan Kilbert on behalf of Local 5668.

[00:22:45] Speaker 05:
I'd like to address, first off, the question of the employer who wishes to turn over a new leave.

[00:22:54] Speaker 05:
Contrary to the suggestions of a counsel for appellant, the union is not taking the position that it should be impossible for an employer to turn over a new leave.

[00:23:04] Speaker 05:
Merely that the employer should not be permitted to barely assert

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that it has turned over.

[00:23:14] Speaker 05:
I'd like to call the court's attention to the fact that the company announced or reaffirmed its reported zero tolerance policy with respect to harassment and a document dated at the end of February of 2013.

[00:23:31] Speaker 05:
But subsequent to that, the company tolerated all of this oral use of the offensive phrase at issue here by both employees and

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by supervisor.

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And they did not take action against any of those individuals or against any other individual in the record for harassing or inappropriate conduct until they discharged Mr. Williams some six months later in October of 2013.

[00:24:01] Speaker 05:
That's not turning over a new leaf.

[00:24:07] Speaker 05:
And the board should not be obligated to

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take an employer's word on that issue.

[00:24:17] Speaker 06:
How does the union reconcile the position it's taking with the fact that some union members who felt targeted by this act, who felt harassed, who felt intimidated by this act?

[00:24:31] Speaker 05:
So the company has an obligation to maintain a workplace free of harassment, and we think that they ought to do that, but we think that

[00:24:39] Speaker 05:
Similarly, they ought not to engage in conduct that retaliates against individuals who engage in activity.

[00:24:48] Speaker 05:
They ought to genuinely enforce a policy that does not permit harassment.

[00:24:59] Speaker 02:
With that, I have no more questions.

[00:25:01] Speaker 02:
Thank you.

[00:25:02] Speaker 02:
Mr. Keneally, why don't you take two minutes?

[00:25:11] Speaker 04:
Thank you.

[00:25:11] Speaker 04:
Just a couple of points in rebuttal.

[00:25:13] Speaker 04:
The board council referenced this board's 2019 opinion discussing that Constellium took action based on the content of Mr. Williams' message.

[00:25:26] Speaker 04:
I think the board council is taking that out of context because the question in that case was about whether the employer was solely motivated by the defacement.

[00:25:38] Speaker 04:
was also motivated by the content we're not disputing at this stage that that both of those motivations were present and this court even used the phrase not simply for defacing property that was the finding that this court made.

[00:25:50] Speaker 04:
I think it's clear on any fair reading of the record that Concellium was motivated in part by

[00:25:56] Speaker 04:
by where and how Mr. Williams used this phrase.

[00:26:03] Speaker 04:
Board of Councils mentioned that maybe Mr. Williams was targeted because he was thought to be the ringleader of the protest.

[00:26:09] Speaker 04:
There's absolutely no evidence of that in the record.

[00:26:11] Speaker 04:
That's entirely speculative.

[00:26:12] Speaker 04:
And the record does show that there were 50 employees who filed grievances about the new overtime policy.

[00:26:17] Speaker 04:
And so the company had every opportunity, if that had really been its motive, to take action against the boycott supporters.

[00:26:26] Speaker 04:
And then finally, just to address the point about whether Constellium turned over a new leave or counsel cited JA-107, which is Randy Beagle's testimony.

[00:26:37] Speaker 04:
All that that says was that he continued to hear the phrase after Mr. Williams' firing.

[00:26:42] Speaker 04:
It does not say that Constellium never instructed employees to stop.

[00:26:46] Speaker 04:
And I really am at a loss to figure out how an employer who has not corrected misconduct in the past could ever do so

[00:26:56] Speaker 04:
when the conduct continues but is done for the sake of some protected end, because the board general counsel will always be able to point to that past misconduct, even if it should have been corrected, as evidence of disparate treatment.

[00:27:12] Speaker 04:
So we would ask that the court deny enforcement of the board's order.

[00:27:17] Speaker 04:
Why couldn't a company say, look, here on out, whether

[00:27:26] Speaker 06:
you are conducting any sort of protest with respect to this overtime action or in any other context, you can't use these terms.

[00:27:40] Speaker 06:
You can't say these sorts of things.

[00:27:44] Speaker 06:
And you put everyone on notice that you have a zero tolerance policy, and it doesn't matter whether they are engaging in protected activity or not.

[00:27:56] Speaker 06:
And so you have turned over your new leaf.

[00:28:00] Speaker 06:
And then the next time that someone does it, you discipline them, even if they're engaged in protected activity.

[00:28:10] Speaker 06:
And why isn't the company covered then, if that's what happened?

[00:28:17] Speaker 04:
Well, we think that that's what happened here.

[00:28:18] Speaker 04:
The company did put out a new rules of conduct, a new anti-harassment policy after the 2012 jury verdict.

[00:28:26] Speaker 04:
that it can't, maybe it doesn't catch every single person who engages in misconduct.

[00:28:32] Speaker 04:
That's not often feasible, especially with things like graffiti.

[00:28:36] Speaker 06:
But the evidence here is that people were saying it over the radio, supervisors are saying it, et cetera, after that new policy has been announced, right?

[00:28:49] Speaker 06:
Isn't that the evidence that's indirect?

[00:28:51] Speaker 04:
There's no evidence that any of those people complaint work, that prompted complaints

[00:28:56] Speaker 04:
from their coworkers, that that led to an investigation, and that the company knew who was engaged in the misconduct and had a meaningful opportunity to discipline them.

[00:29:09] Speaker 04:
I think the evidence is exactly what Your Honor said, but there's not that missing link that shows that the employer knew about it, could have stopped it, and that its failure to do more suggests that it had animus against the overtime protest.

[00:29:27] Speaker 02:
Thank you.

[00:29:29] Speaker 02:
All right, thank you, counsel.

[00:29:30] Speaker 02:
Madam Clerk, would you call the next case, please?