Caught Between a Rock (Labor Law) and a Hard Place (Employment Law)

What would you do if one morning you saw on the overtime volunteer list on your company bulletin board that an employee had handwritten across the top of the list the words “Whore Board?” I think I know: You would fire that employee, assuming you could identify who it was. However, what if this all happened in the context of a dispute over the assignment of overtime between your company, its union, and its employees? Would you still make the same choice?

That is exactly the circumstance in which a company called Constellium Rolled Products Ravenswood LLC found itself. When it did what you would expect and terminated the employee, the employee filed an unfair labor practice charge claiming that he was terminated for engaging in concerted activity protected by the National Labor Relations Act. The National Labor Relations Board, during the Obama administration, agreed with the employee. The Board’s agreement came despite Constellium’s argument that accepting the right of the employee to write such an offensive phrase in the workplace could have exposed it to hostile workplace claims similar to a prior case filed against the company (which notably had to be resolved by a payment of over $1,000,000 to two employees).

The United States Court of Appeals for the District of Columbia has possibly come to take employers off the horns of the dilemma of being forced to choose to violate either labor law or employment law. In a decision dated December 31, 2019, the court remanded this case back to the Board for further consideration of the conflict between labor law and employment law in the context where the employee’s actions exposed the employer to liability under employment laws. With the current Board of the Trump administration, we can expect a more fulsome review of this issue. This is a case to follow in 2020 as its end result may give us all guidance on how to address those situations that put employers between the rock of labor law and the hard place of employment law.