On December 31, 2019, in Constellium Rolled Products Ravenswood, LLC v. NLRB, the US Court of Appeals for the District of Columbia Circuit (DC Circuit) granted the employer's petition for review and denied the NLRB's petition for enforcement of its decision holding that the NLRA protected an employee who defaced the employer's voluntary overtime sign-up board by labelling it the "whore board." The court held that:

( (D.C. Cir. Dec. 31, 2019).)

If the NLRB accepts the DC Circuit's remand and reviews this case, it provides another track for the NLRB to reconsider its totality of circumstances and Atlantic Steel Company frameworks for evaluating when employees' concerted activity is sufficiently offensive to lose the NLRA's protections (245 N.L.R.B. 814, 816 (1979)). In General Motors LLC, the NLRB invited amicus briefs as it reconsiders those standards (see 368 N.L.R.B. No. 68, (Sept. 5, 2019); Legal Update, NLRB Invites Briefs Regarding NLRA Protection for Profane or Offensive Statements). Interestingly, the NLRB Member dissenting from the call for amicus briefs cited the now-remanded Constellium decision as an exemplar of how the NLRB's analysis of protections afforded to offensive workplace speech and conduct is working well, has not been questioned by a single federal appellate court, and should not be altered.

On August 25, 2021, the NLRB issued a Supplemental Decision and Order reaffirming its prior decision that the employer violated Section 8(a)(3) and (1) by suspending and terminating the employee. The NLRB found that application of the Wright Line standard, as adopted in General Motors LLC, resolves any potential conflict between an employer's duties under the NLRA and equal employment opportunity laws because it allows the employer to assert as a defense that it was motivated by its obligation to comply with applicable antidiscrimination laws when it imposed discipline for offensive or abusive workplace speech (see 369 N.L.R.B. No. 127 (July 21, 2020)). In the present case, the NLRB concluded that the employer failed to meet its rebuttal burden under Wright Line to show that it would have disciplined the employee for misconduct under antidiscrimination laws but for his Section 7 activity, observing that the employer allowed widespread use of the same gender-based epithet at the facility, including by supervisors, for six months before singling out the employee for discipline and discharge. (Constellium Rolled Prods. Ravenswood, LLC, 371 N.L.R.B. No. 16 (Aug. 25, 2021); for more information on the General Motors analytical framework, see Legal Update, NLRB Sets Uniform Analysis for Evaluating When Employees Forfeit NLRA Rights Because of Offensive Outbursts During Protected Activity.)

On August 9, 2022, a 2-1 majority of the DC Circuit denied the employer's petition for review and granted the NLRB's cross-application for enforcement of its August 25, 2021 Supplemental Decision and Order, holding that the NLRB sufficiently addressed the conflict between the NLRA and the employer's obligations under applicable antidiscrimination laws as required by the court's prior remand and reasonably found that the employer terminated the employee in violation of Sections 8(a)(3) and (1) of the NLRA (Constellium Rolled Prods. Ravenswood, LLC v. NLRB, (4th Cir. Aug. 9, 2022)).

On May 1, 2023, in Lion Elastomers LLC, the NLRB overruled General Motors and restored three setting-specific standards for evaluating the lawfulness of discipline imposed on employees for engaging in offensive or abusive behavior in the course of union or other concerted activity. For more information on Lion Elastomers, see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(3): Employer Discrimination to Encourage or Discourage Union Membership.