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

(Page 2 of 3)

The judges took this up with Jeffrey Horowitz, who was carrying water for the NLRB. To put it bluntly, the judges appeared more than a wee bit skeptical as to the merits of the NLRB's case.

"Why is my hypothetical not correct?" asked Judge Silberman, who spars in a more reserved tone than his colleague Sentelle. "Every employer who has this rule in its handbook is in violation of Section 8 (a)(1)."

"In other instances where an employer may have other rules that are more clearly..." stammered Horowitz.

"No!" boomed Sentelle and Silberman in unison. "This is a very standard Title VII protection. It's a due diligence rule," continued Silberman. "Why isn't every large employer in the country who is following due diligence with a workplace rule like this not immediately liable for an unfair labor practice?"

The NLRB lawyer never could answer this question.

"To be directly responsive," replied Horowitz as he tried to come up with a rejoinder, the Adtranz policy "is so broad, to rule out abusive language...."

"Why in the world is it an unfair labor practice to prevent employees from creating a hostile workplace?" demanded Sentelle. "What would be a rule that would accomplish the purpose of this rule that wouldn't violate [the NLRB's ruling]?"

Horowitz blurted out something that might be classified as non-responsive, off-topic, or just plain stupid. Sentelle kept at him.

"What would be a rule that they could put in their handbook that somebody with less than a law school education could read and make some kind of sense of...[that] you would say would survive what the Board did?"

"Counsel is indicating..." said Horowitz.

This sent Sentelle off into a fit that seemed to please four young groupies who were enjoying the proceedings. Even the law clerks cracked smiles.

"Counsel is not indicating anything!" bellowed Sentelle. "My question is that you give me a rule...that would [pass the NLRB's test] and still provide a company with due diligence."

"It might be sexual harassment," offered Horowitz.

"You are not hearing my question," replied Sentelle. "Give me an example of a rule, read me the words of a rule."

"You put me at a disadvantage," protested Horowitz.