United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 9, 2001 Decided June 26, 2001
No. 00-1282
Adtranz ABB Daimler-Benz Transportation, N.A., Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
Machinists Automotive Trades District Lodge No. 190 of
Northern California, International Association of
Machinists and Aerospace Workers, AFL-CIO,
Intervenor
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Mark S. Ross argued the cause for petitioner. With him
on the briefs was Christopher J. Pirrone.
Jeffrey L. Horowitz, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Leonard R. Page, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Frederick C. Havard,
Supervisory Attorney.
David A. Rosenfeld argued the cause for intervenor. With
him on the brief was Eric Borgerson.
Before: Sentelle and Henderson, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Sentelle.
Separate Concurring Opinion filed by Senior Circuit Judge
Silberman.
Sentelle, Circuit Judge: Adtranz ABB Daimler-Benz
Transportation N.A., Inc. ("Adtranz") petitions for review of a
National Labor Relations Board ("NLRB") order calling for a
new representation election. Specifically, Adtranz challenges
the NLRB's conclusion that its policies barring abusive and
threatening language and limiting solicitation in the work-
place constitute unfair labor practices. We vacate the
NLRB's unfair labor practice determinations as they are
utterly without merit. We do not address the Board's order
of a new election, however, as it is not a reviewable final
order.
I. Background
A. Relevant Facts
Petitioner Adtranz refurbishes rail cars for the Bay Area
Rapid Transit system in Pittsburg, California. In December
1997, Adtranz distributed a new employee handbook contain-
ing "Rules of Conduct" with which employees were expected
to comply. Under these rules, "[u]sing abusive or threaten-
ing language to anyone on Company premises" is defined as
"serious misconduct," punishable with suspension for a first
offense and possible termination for a second offense. Ad-
tranz Employee Handbook at 11. "Soliciting or distributing
without authorization" is defined as "extremely serious mis-
conduct" and can result in "immediate termination of employ-
ment." Id. at 10. Under a separate section entitled "Solici-
tation and/or Distribution" the handbook provided that:
The unauthorized sale of tickets, solicitation of contribu-
tions, or distribution of handbills can disrupt work.
Therefore, such activities are not permitted on Company
premises during working time except for specific
Company-sponsored solicitations or distributions.
Unauthorized activities include, but are not limited to,
distribution of any literature or any material in work
areas and solicitation in either work or non-work areas
where either the employee soliciting or the employee
being solicited is scheduled to be working.
All solicitation requests must be approved in advance by
Human Resources.
Id. at 15. The solicitation and distribution rule makes no
explicit mention of union activity. A prior version of the
employee handbook, however, explicitly covered "efforts on
behalf of a labor union."
Beginning in September 1998, Machinists Automotive
Trade District Lodge No. 190 of Northern California ("Un-
ion") began efforts to unionize the employees at Adtranz's
Pittsburg facility. Pursuant to election petitions filed by both
Adtranz and the Union, the NLRB conducted a representa-
tion election on December 9, 1998. Seventy-nine employees
voted in favor of unionization, 135 employees voted against.
A non-outcome determinative number of ballots were chal-
lenged. Under Section 102.69(a) of the NLRB's rules, the
Union had seven days from the tallying of ballots to file
objections to the election, and an additional seven days from
that filing to furnish evidence in support of the objections.
The Union filed two "Objections to Conduct of Election" on
December 16, alleging that Adtranz "interfered with the
election by threatening employees with loss of benefits and
wages and offering increased benefits or wages to employees"
and "provided increase [sic] benefits and wages to employ-
ees." The objections made no mention of the handbook
provisions at issue in this case. One week later, on December
23, the Union filed an unfair labor practice charge against
Adtranz, alleging that various provisions of the employee
handbook were overly broad which "interfered with, re-
strained, and coerced employees in the exercise of the rights
guaranteed" by the National Labor Relations Act ("NLRA").
B. Proceedings Below
In response to the Union's unfair labor practice filing, on
March 18, 1999, the NLRB Regional Director issued a com-
plaint alleging, among other things, that the company's hand-
book policies were overly broad in violation of Section 8(a)(1)
of the NLRA. 29 U.S.C. s 158(a)(1). That same week the
Regional Director consolidated the unfair labor practice com-
plaint with one of the Union's election complaints. The other
election complaint was dismissed for lack of evidence.
On May 21, 1999, Adtranz filed a motion in limine seeking
to bar consideration of the handbook provisions in evaluating
the Union's unfair election complaint. Adtranz claimed that
consideration of the handbook in relation to the election was
procedurally barred under Burns Int'l Security Servs., 256
NLRB 959 (1981), in that the Union did not identify the
handbook as a basis for challenging the election within seven
days of the election. On June 23, 1999, Associate Chief
Administrative Law Judge ("ACALJ") Schmidt issued an
order in which he found the handbook provisions to be
"wholly unrelated to the conduct alleged in the Union's
remaining election objection." The ACALJ nonetheless de-
nied Adtranz's motion to exclude the handbook finding that,
under NLRB precedent, the ALJ who would try the case had
sufficient discretion to consider the handbook in his proceed-
ing.
On January 2000, an Administrative Law Judge ("ALJ")
found that the abusive language and solicitation/distribution
provisions of Adtranz's employee handbook constituted unfair
labor practices under Section 8(a)(1) of the NLRA and consti-
tuted a sufficient basis to overturn the December 1998 elec-
tion. The ALJ rejected the Union's remaining complaints,
including Adtranz's rule limiting employee use of e-mail and
the Union's allegation that Adtranz manipulated employee
benefits to discourage unionization. Adtranz ABB Daimler-
Benz Transp. N.A., Inc., 331 NLRB No. 40, slip op. at 4 (May
31, 2000). The ALJ nonetheless called for a new election and
ordered Adtranz to cease and desist from its unfair labor
practices and post an appropriate notice at its Pittsburg
facility.
On May 31, 2000, the NLRB summarily affirmed the ALJ's
conclusions and call for a new election, and issued a revised
order. Specifically, the NLRB ordered Adtranz to revise its
employee handbook to rescind the "overly broad rules regard-
ing solicitation, distribution, and abusive language" and re-
quired that Adtranz post appropriate notice at all Adtranz
facilities nationwide. Id. at 1. One member of the Board
dissented in part on the grounds that Adtranz's rule against
abusive language did not constitute an unfair labor practice.
Id. at 1 n.3.
II. Merits
Adtranz petitions for review of the NLRB's order, chal-
lenging both of the NLRB's unfair labor practice determina-
tions and ordered remedies. The NLRB cross-petitions for
enforcement of the order. The Union intervenes in support
of the NLRB arguing, inter alia, that the use of abusive
language, vulgar expletives, and racial epithets "is part and
parcel of the vigorous exchange that often accompanies labor
relations." Brief of Intervenor at 2.
A. Jurisdiction
As an initial matter, we must address our jurisdiction, or
lack thereof, over petitioner Adtranz's claims. This Court
has jurisdiction to review a "final order" of the NLRB
pursuant to Sections 10(e) and (f) of the NLRA. 29 U.S.C.
s 160(e) and (f). An NLRB decision affirming an ALJ's
findings of unfair labor practices by an employer is such an
order. However, "the Board's direction of a new election is
not a final order reviewable under either section 10(e) or
section 10(f) of the NLRA." Gold Coast Restaurant v.
NLRB, 995 F.2d 257, 267 (D.C. Cir. 1993) (citing American
Fed'n of Labor v. NLRB, 308 U.S. 401, 409 (1940)). Should
an employer seek "to challenge the new election, it can
precipitate an unfair labor practice charge by refusing to
recognize the union representation that could result from the
election." Id. In the case at hand, this Court has no
jurisdiction to consider petitioner's challenge to the NLRB's
order of a new election or petitioner's claim that the NLRB
improperly considered the employee manuals in its consider-
ation of the Union's election objections. However, we have
jurisdiction over petitioner's remaining claims against the
Board, and the resolution of these claims will no doubt impact
future proceedings concerning the election.
B. Standard of Review
Section 8(a)(1) of the NLRA makes it an unfair labor
practice for an employer "to interfere with, restrain, or coerce
employees in the exercise" of their rights to unionize and
engage in related labor activities. 29 U.S.C. s 158(a)(1).
The NLRA delegates to the Board "the work of applying the
Act's general prohibitory language in the light of the infinite
combination of events which might be charged as violative of
its terms." Republic Aviation Corp. v. NLRB, 324 U.S. 793,
798 (1945). NLRB determinations as to what sort of employ-
er conduct unlawfully restrains or interferes with protected
labor activity are entitled to considerable deference so long as
they are "reasonably defensible." Ford Motor Co. v. NLRB,
441 U.S. 488, 497 (1979).
In evaluating workplace rules promulgated by employers,
the NLRB traditionally considers "whether the rules would
reasonably tend to chill employees in the exercise" of their
statutory rights. Lafayette Park Hotel, 326 NLRB 824, 825
(1998). Where the NLRB faithfully applies this standard,
and adequately explains the basis for its conclusion, we will
enforce its rulings. On the other hand, where the NLRB
adopts an unreasonable or otherwise indefensible interpreta-
tion of Section 8(a)(1)'s prohibition, we will deny enforcement
and vacate the Board's order. This case fits comfortably into
the latter category.
C. Abusive and Threatening Language
Adtranz seeks to maintain a decorous and peaceful work-
place. As documented in the employee manual at issue in
this case, the company's "shared values" which it deems
fundamental to its "continuous pursuit for success" include
"[t]rust and respect for self and others," "[t]eamwork and
cooperation," and "[e]ffective communication." Adtranz Em-
ployee Handbook at 3. In accordance with these values,
Adtranz prohibits the use of "abusive or threatening language
to anyone on company premises." Id. at 11. Adtranz also
prohibits harassment and other conduct that could conflict
with its values.
To the NLRB and Union Intervenor, Adtranz's effort to
maintain a civil and decent workplace is an unfair labor
practice that threatens the statutory rights of Adtranz's
employees under the NLRA. Prohibiting the use of abusive
or threatening language, the Board maintains, has the unreal-
ized potential to chill the exercise of protected activity, as the
rule "could reasonably be interpreted as barring lawful union
organizing propaganda." Adtranz ABB, 331 NLRB No. 40,
slip op. at 4. The NLRB does not argue that such "chilling"
necessarily has occurred at Adtranz's Pittsburg facility, nor
does it maintain that Adtranz either adopted or applied the
policy in order to frustrate or discourage union activity.
Rather, the NLRB asserts that the rule against the use of
abusive and threatening language in the workplace on its face
constitutes an unfair labor practice.
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. This
position is not "reasonably defensible." It is not even close.
In the simplest terms, 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.
The NLRB notes that union campaigns are heated affairs,
often spawning intemperate language. According to the
NLRB, the abusive or hostile nature of such outbursts does
not strip such language of its protected status, and therefore
it is unlawful for a company to threaten punishment for the
use of such language. According to the Board and the Union
Intervenor, it is perfectly acceptable to use the most offensive
and derogatory racial or sexual epithets, so long as those
using such language are engaged in union organizing or
efforts to vindicate protected labor activity. Expecting deco-
rous behavior from employees is apparently asking too much.
Indeed, Union Intervenor suggests that it is unfair to expect
union members to comport themselves with general notions of
civility and decorum when discussing union matters or exer-
cising other statutory rights. We do not share the Union's
low opinion of the working people it purports to represent.
America's working men and women are as capable of discuss-
ing labor matters in intelligent and generally acceptable
language as those lawyers and government employees who
now condescend to them.
The NLRB claims that "it is well settled that an employer
violates Section 8(a)(1) ... by maintaining a rule that seeks to
broadly prohibit employee speech beyond deliberate or mali-
cious false statements." Brief for the NLRB at 9. This is a
stunning misreading of the applicable precedent, including
the Board's own prior rulings. Indeed, the NLRB has long
held the opposite, noting that "an employee who is engaged in
concerted protected activity can, by opprobrious conduct, lose
the protection of the Act." Atlantic Steel Co., 245 NLRB
814, 816 (1979). Under Atlantic Steel, if an employee is
sanctioned for the use of obscenity or abusive language, the
Board may not ignore the nature of the language used.
Rather the NLRB is required to consider "the nature of the
employee's outburst," among other factors, in determining
whether the employee's activity remains protected. Id. See
also Felix Indus. v. NLRB, 2001 WL 640638 (D.C. Cir. June
12, 2001).
The NLRB is correct that some of its prior precedent could
be read to support the proposition it advances here. This
proves nothing. Where, as here, the NLRB adopts an unrea-
sonable position, it can find no solace in the fact that it made
the same mistake in prior cases. As we have observed in
other contexts, "merely applying an unreasonable statutory
interpretation for several years [cannot] transform it into a
reasonable interpretation." F.J. Vollmer Co. v. Magaw, 102
F.3d 591, 598 (D.C. Cir. 1996). The NLRB may be bound by
its erroneous precedents. We are not. That said, the
Board's ruling here is substantially broader than the cases on
which it attempts to rely. For instance, the rules at issue in
Lafayette Park Hotel, 326 NLRB No. 824 (1998), and Flam-
ingo Hilton-Laughlin, 330 NLRB No. 34 (1999), barred false,
vicious, profane or malicious statements about the employer.
As such, these rules discouraged speech that is arguably
related to protected activities, in a way that "abusive or
threatening language" more generally is not. An employer's
effort to squelch criticism from employees, and threatening to
punish "false" statements without evidence of malicious in-
tent, is quite different from demanding employees comply
with generally accepted notions of civility. The former may
well constitute an unfair labor practice in the proper context.
The latter, in and of itself, does not. This distinction is fully
consistent with Linn v. United Plant Guard Workers of
America, Local 114, 383 U.S. 53 (1966), which held that libel
actions under state law are only preempted by the NLRA to
the extent that such actions do not require knowledge of the
statement's falsity or a reckless disregard for the truth.
The other cases relied upon by the NLRB are no more
helpful. In Great Lakes Steel, the company's unfair labor
practice was a rule prohibiting the possession or distribution
of literature--whether or not during working hours--that
was "libelous, defamatory, scurrilous, abusive or insulting" or
"which would tend to disrupt order, discipline or production
within the plants." 236 NLRB 1033, 1033 (1978). This rule
did far more than impose a standard of civility on workplace
behavior. Thus, the Sixth Circuit Court of Appeals found
that the rule "taken as a whole" was "too broad," in no small
part because it could prohibit solicitation "during nonworking
hours." Great Lakes Steel v. NLRB, 625 F.2d 131, 132 (6th
Cir. 1980).
We cannot help but note that the NLRB is remarkably
indifferent to the concerns and sensitivity which prompt many
employers to adopt the sort of rule at issue here. Under both
federal and state law, employers are subject to civil liability
should they fail to maintain a workplace free of racial, sexual,
and other harassment. Abusive language can constitute ver-
bal harassment triggering liability under state or federal law.
See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
Given this legal environment, any reasonably cautious em-
ployer would consider adopting the sort of prophylactic mea-
sure contained in the Adtranz employee handbook. While a
single, isolated remark will rarely be sufficient to trigger
employer liability, see Clark County School Dist. v. Breeden,
121 S. Ct. 1508 (2001), failure to maintain a workplace free of
such language can place an employer at significant financial
risk nonetheless. See generally Eugene Volokh, What Speech
Does 'Hostile Work Environment' Harassment Law Restrict?
85 Geo. L.J., 627 (1997). Under current law, the "only
reliable protection is a zero-tolerance policy, one which pro-
hibits any statement that, when aggregated with other state-
ments, may lead to a hostile environment." Id. at 638-39.
Indeed, such rules are commonplace. See, e.g., id. at 639 n.35
and citations therein. To bar, or severely limit, an employer's
ability to insulate itself from such liability is to place it in a
"catch 22."
That the threat of legal liability justifies limitations on
threatening language due to the potential for workplace dis-
cord or violent confrontations is a principle the NLRB has
itself acknowledged. In Southwestern Bell Tel. Co., the
NLRB upheld an employer's ban on employees' wearing
offensive shirts making derogatory reference to the employer
during contract negotiations as a "reasonable precaution
against discord and bitterness between employees and man-
agement, as well as to assure decorum and discipline in the
plant." 200 NLRB 667, 670 (1972).
We understand that labor negotiations produce occasional
intemperate outbursts and, in a specific context, such lan-
guage may be protected. We also recognize that the uneven
or partial application of a rule against abusive and threaten-
ing language could constitute an unfair labor practice if
directed against employees seeking to exercise their statutory
rights. Yet the Board's position that the imposition of a
broad prophylactic rule against abusive and threatening lan-
guage is unlawful on its face is simply preposterous. It defies
explanation that a law enacted to facilitate collective bargain-
ing and protect employees' right to organize prohibits em-
ployers from seeking to maintain civility in the workplace.
D. Solicitation
The second claim raised by petitioner presents a closer
issue, but only slightly. The Adtranz employee handbook
contains a rule against "soliciting and distribution without
authorization." Adtranz maintains that this rule when read
in context, does not discourage or chill protected activity.
Instead, petitioner claims, the rules are clearly focused upon
preventing work disruptions and curbing potential distrac-
tions. As above, the NLRB cites no evidence, let alone
substantial evidence, to the contrary. Instead, the NLRB
argues that the policy is unlawful on its face because it will
"chill" protected labor activity. This, too, is not a "reasonably
defensible" position.
Our decision in Aroostook County Regional Ophthalmology
Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996), is instructive.
In Aroostook, this Court reversed the NLRB's finding that a
policy barring medical office employees from discussing griev-
ances within earshot of patients constituted an unfair labor
practice. We held that the NLRB could not declare such a
policy to be facially unlawful based upon "fanciful" specula-
tion, but rather had to consider the context in which the rule
was applied and its actual impact on employees. As we
explained:
In the absence of any evidence that [the employer] is
imposing an unreasonably broad interpretation of the
rule upon employees, the Board's determination to the
contrary is unjustified. If an occasion arises where [the
employer] is attempting to use the rule as the basis for
imposing questionable restrictions upon employees' com-
munications, the employees may seek review of the Com-
pany's actions at that time. However, the rule on its face
is not unlawful.
81 F.3d at 213.
This legal standard should come as no surprise to the
NLRB. Indeed, the NLRB has itself cautioned against
parsing workplace rules too closely in a search for ambiguity
that could limit protected activity. Rather, the Board should
consider "the realities of the workplace" and the actual
context in which rules are imposed. See Lafayette Park Hotel,
326 NLRB 824 (1998). In the Board's decision before us,
however, there is no consideration of the context of Adtranz's
rule, or its impact on employees. Indeed, the ALJ's decision
adopted by the Board considered nothing more than the
General Counsel's claim that "the rule could reasonably inter-
preted as barring lawful union organizing propaganda or
rhetoric." Adtranz ABB, 331 NLRB No. 40, slip op. at 3.
Unlike the cases relied upon by the ALJ for his decision,
Our Way Inc., 268 NLRB 394 (1983); Laidlaw Transit Inc.,
315 NLRB 79 (1994); Opryland Hotel, 323 NLRB 723 (1997);
and Baldor Electric Co., 245 NLRB 614 (1979), the rule in
question only applies to conduct during working time and in
the work place. In these other cases the invalidated rules
prohibited or restricted solicitation, handbilling and the like
during breaks and meals-times when an employer could not
usually claim to have a significant interest in preventing
workplace "distractions." " 'Working time is for work' is a
long-accepted maxim of labor relations." Our Way, 268
NLRB at 395 (quoting Peyton Packing Co., 49 NLRB 828,
843 (1943)). Therefore, "rules prohibiting solicitation during
working time are presumptively lawful because such rules
imply that solicitation is permitted during nonworking time, a
term that refers to the employees' own time." Id. at 394.
Similarly, "an employer's prohibition against employee distri-
bution in work areas at all times is presumptively valid."
Beverly Enterprises-Hawaii, Inc., 326 NLRB 335, 335 (1998).
The NLRB's decisions embody a "long-held standard that
rules banning solicitation during working time state with
sufficient clarity that employees may solicit on their own
time." Our Way, Inc., 268 NLRB at 395. But they also
support the principle that the NLRB may not cavalierly
declare policies to be facially invalid without any supporting
evidence, particularly where, as here, there are legitimate
business purposes for the rule in question and there is no
suggestion that anti-union animus motivated the policy.
As with the rule against abusive language, Adtranz's rule
applies across the board, so it cannot be said to discriminate
against unionization efforts or other protected activity. Ad-
tranz also proffered undisputed evidence to the ALJ demon-
strating that there was widespread employee solicitation and
distribution during non-worktime and that the company en-
couraged such activities. Not only did the NLRB fail to
consider any of petitioner's evidence, it cites no evidence to
support its concerns about "chilling" protected activity. In-
deed, there is no evidence in the record--let alone "substan-
tial evidence"--to suggest that any employees believed that
the solicitation and distribution rule prohibited union activi-
ties, while some employees claimed the opposite. Thus, we
find no basis for the NLRB's holding.
III. Conclusion
For the reasons set forth above, we vacate the NLRB's
order insofar as it found that Adtranz's employee policies
constituted unfair labor practices under the NLRA.
Silberman, Senior Circuit Judge, concurring: I concur in
the majority's opinion with respect to "abusive and threaten-
ing language" because I agree that it is absurd for the Board
to hold that an employer who bans that sort of language--
even though the ban has never been implemented in an anti-
union fashion nor in a manner that could be thought to
interfere with organizational efforts--per se violates s 8(a)(1).
This charge was an obvious gimmick (fashioned well after the
election contest period ended) designed to overturn
the election.