Pitfalls in Drafting Policies Aimed at Ensuring Workplace Civility
 
September 1, 2001
 

In response to escalating concerns about workplace violence and harassment, many employers have adopted, and are well-advised to adopt, no-violence policies. Such policies are typically broadly drafted not only to prohibit all forms of physical violence, but to also prohibit verbal forms of violence, including threatening and abusive language. Likewise, in further efforts to maintain decorum and civility in the workplace, employers have broadened non-discrimination and anti-harassment policies to forbid all forms of inappropriate conduct, including abusive and threatening language. Indeed, the importance of adopting non-discrimination and anti-harassment policies is now well-known by most employers, since the Supreme Court in 1998 made it virtually impossible for employers to defend against hostile environment harassment claims in the absence of such policies.

Recently, however, the National Labor Relations Board (the Board) created a "Catch 22" for employers by ruling that an employer’s efforts to maintain decorum and civility by adopting a rule prohibiting the use of abusive and threatening language and unauthorized solicitation and distribution violated the National Labor Relations Act (NLRA). Adtranz ABB Daimler, 331 NLRB No. 40 (2000).

The ramifications of the Board’s ruling are significant.

Under the Board’s reasoning, every employer in the United States that has a rule or handbook barring abusive and threatening language from one employee to another is now in violation of the NLRA, irrespective of whether there has ever been any union organizing activity at the company.

Although the United States Court of Appeals for the D.C. Circuit later reversed the Board’s decision, the Board has the power to, and frequently does, ignore decisions of the Courts of Appeals. As a result, employers should exercise caution in drafting such policies.

The dispute in Adtranz arose out of efforts by the Machinists Union to unionize employees in Adtranz’s Pittsburgh facility. After losing the election, the union filed an unfair labor practice charge alleging that Adtranz interfered with employees’ opportunity to engage in union activities in violation of Section 8(a)(1) of the NLRA by maintaining an employee handbook that contained overly broad "Rules of Conduct" and "Solicitation and Distribution" policies. The Rules of Conduct policy prohibited all employees from using "abusive or threatening language to anyone on Company premises" and from "soliciting or distributing without authorization." A separate "Solicitation and Distribution" policy clarified that the policy was intended to prevent workplace disruptions. It defined unauthorized solicitation as solicitation during working time and unauthorized distribution as distribution during working time or in working areas.

The Board concluded that, even though Adtranz did not adopt the challenged rules in response to union activity and had never enforced them, they still had an impermissible "chilling effect" on employees’ ability to engage in union activity. It reasoned that, because union campaigns often become heated and result in the use of intemperate language, the abusive and threatening language policy "could reasonably be interpreted as barring lawful union organizing propaganda." Similarly, the Board concluded that employees could have interpreted the solicitation and distribution policies as prohibiting them from lawfully soliciting and distributing union rhetoric or propaganda. The Board ordered Adtranz to eliminate the "overly broad rules" from its handbook and to post notices at all its facilities nationwide. The implication of the Board’s ruling is that such heated exchanges and intemperate language during a union campaign are protected activity regardless of the magnitude of disruption caused by the exchanges or the content of the language.

In reversing the Board, the D.C. Circuit ruled that the Board’s determination that Adtranz’s broad, prophylactic rules were illegal on their face was "simply preposterous." It found that Adtranz’s prohibition on the use of "abusive or threatening language to anyone on company premises" was a legitimate effort to preserve decorum and peace in the workplace. The Court further found that such rules do not chill legitimate union activity, stating that it "is preposterous that employees are incapable of organizing a union or exercising their other statutory rights under the NLRA without resort to abusive or threatening language."

Although the court recognized that some intemperate outbursts may constitute protected union activity, it reasoned that the cloak of "union activity" could not excuse employee conduct that violates legitimate employer obligations, such as providing a workplace free from racial, sexual and other harassment, including abusive and threatening language. Similarly, the court determined that the prohibition on unauthorized solicitation and distribution met the standards set out by the Supreme Court and was legitimately directed to prevent work disruptions and minimize potential distractions. The Board’s finding to the contrary was based on speculation without any consideration of the context in which the rule was applied or the actual impact on employees.

These contrary decisions put employers in a bind. Although the D.C. Circuit has determined that such policies, if properly drafted and consistently applied in a non-discriminatory manner, are not illegal on their face, the National Labor Relations Board frequently ignores the courts’ interpretations of the NLRA in its own enforcement proceedings. Thus, an employer may spend considerable time and money demonstrating that its policies are legal.

As a result, employers should draft and apply policies aimed at maintaining decorum and civility in the workplace with care. Employers should consider the following suggestions.

• The policies should not be adopted in response to union or other protected concerted activity.
• The policies should not be enforced in response to union or concerted activity unless the manner in which the employee engages in that activity exceeds the boundaries of decorum and general civility.
• The policies must be applied consistently to all employees regardless of their union activity.
• Solicitation and distribution policies should be written to prohibit solicitation only during working time, which excludes breaks and meal periods, and to prohibit distribution during working time and in working areas at all times.

For more information, contact Tamra Domeyer at 1-888-688-8500 or via e-mail at tdomeyer@hklaw.com.

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