Bleeping on the Job

In which our man in Washington visits the halls of justice to witness gross obscenities and a towering pompadour.

Michael W. Lynch from the July 2001 issue

Quality entertainment in D.C. isn't limited to congressional committee rooms, the House and Senate floors, think tank auditoriums, and black tie dinners. Federal courts can be a real hoot as well. To wit, the classic comedy playing to rave reviews at the United States Court of Appeals for the District of Columbia Circuit. It's called Adtranz ABB Daimler-Benz v. NLRB.

The story thus far: Adtranz, a refurbisher of cars for California's Bay Area Rapid Transit System, was arguing before the court that its prohibition against "using abusive or threatening language to anyone on the company premises" does not constitute an unfair labor practice under Section 8 (a)(1) of the National Labor Relations Act. The case arises from an unsuccessful attempt by the International Association of Machinists and Aerospace Workers to organize Adtranz's plant in Pittsburg, California. On December 9, 1998, employees there rebuffed the union's overtures by a vote of 135 to 79. Duly spurned, the union set out to find a pretext to declare the vote invalid. So it brought a bunch of charges to its benefactors at the National Labor Relations Board, the D.C. bureaucracy that enforces the National Labor Relations Act. Among the complaints was the assertion that management's prohibition of verbal assault was an unfair labor practice. How the fuck, the union essentially asked, do you expect us to organize without abusive and threatening language?

Adtranz's policy is a standard-issue set of rules designed to protect companies from "hostile workplace" suits. The policy predated organizing activity at the facility, and the union doesn't even allege it was used against organizers or employees. Still, the NLRB ruled against Adtranz, overturned the election, and ordered a new one, since the company's prohibition of "abusive and threatening" behavior didn't explicitly exempt such activity during unionization drives. The NLRB also demanded that management apologize and openly declare that it wouldn't restrict abusive speech, so long as it was uttered in the context of labor relations. Adtranz appealed the ruling in federal court.

The actual hearing -- which I'll get to in a moment -- had more raw entertainment value than a World Wrestling Federation match. It was also, in its own way, equally rigged.

But the fun in this case started long before the judges got in on the smackdown. The NLRB's position was helpfully bolstered by a brief filed by David Rosenfeld, an attorney for the unsuccessful union. Rosenfeld compiled numerous NLRB cases to prove his point that "language that is intemperate and profane in some sectors of civil society is part and parcel of vigorous exchange that often accompanies labor relations."

What's most amusing about Rosenfeld's brief is how it deconstructs the supposed solidarity among various parts of the nation's coalition of left-of-center interest groups. The brief makes it hilariously clear that the interests of labor and its more socially sensitive comrades may not be as simpatico as is commonly assumed. While organized feminists, gays, and civil rights advocates push for working environments free from harassment, unions maintain that their members have an absolute right to say pretty much anything at work.

Even Camille Paglia-style feminists might be a little disturbed that their allies in the labor movement express their grievances via the most debased gender terms. Writes Rosenfeld: "In [one case], during the course of contract negotiations, a union representative grabbed his crotch and said, 'Suck my dick you bitch.' Union representatives also said to supervisors, 'I'm tired of her shit, she is always bossing people around'; 'Who the fuck does she think she is?'; and 'Fuck you, bitch.'"

Who, indeed -- she must have thought she was the boss or something. Rosenfeld underscores that these are examples of protected workplace speech, under federal labor law. Things will really get interesting, especially in Women's Studies departments, if and when the nation's graduate students finally undertake the unionization drive they keep threatening universities with.

If nothing else, Rosenfeld's brief underscores that the industrial-era Us vs. Them mindset is more than a little outdated in a day when women and minorities have made it into management. In another case, writes Rosenfeld, "A union bargaining representative said 'fuck you' repeatedly to management negotiators; said in front of an African American management negotiator that union members were tired of being treated like 'niggers.'" The NLRB found "no purpose focusing on the [union rep's] occasional, ill-advised profanity and his sexist and racist comments."

Meanwhile, back at the Court of Appeals, the judges had read Rosenfeld's brief and the NLRB ruling. Presiding at the hearing were David Sentelle, Larry Silberman, and Karen Henderson -- and an official portrait of Robert Bork, who worked here before his nomination to the Supreme Court. You may recall that Sentelle presides over the panel that oversees Independent Counsels, and hence appointed and supervised the work of one Kenneth Starr. Here's a little tourist advice: If you find yourself in D.C., check the court's Web site at www.cadc.uscourts.gov. If Sentelle is slated to hear a case, pop into his courtroom for an hour; he's far more entertaining than the IMAX nature film at the National Museum of Natural History.

Mark Ross, an attorney for Adtranz, went first. The imperious Judge Sentelle, seated in the center of the dais, his gray hair coifed in a formidable pompadour, his black robe broadening his shoulders, interrupted Ross as he went through his argument.

"Can you imagine a counsel for a large employer today not advising his client to put in" a rule like this one banning abusive language?

"Not unless he has a lot of good insurance," replied Ross, as chuckles came from the bench.

"Malpractice insurance," added Sentelle.

That is, in fact, the heart of the matter. Under federal and state law, an employer is obliged to provide a harassment-free workplace. If a law that prohibits abusive and threatening speech in the workplace is an unfair labor practice, then virtually every large employer in the country is violating the National Labor Relations Act.