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...