Pitfalls in Drafting Policies Aimed at Ensuring Workplace Civility

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...