Companies that prohibit employees from verbally abusing co-workers and customers—that is, just about every employer—can rest a bit easier, thanks to a unanimous June decision by the U.S. Court of Appeals for the District of Columbia Circuit.
The decision vacated an earlier ruling by the National Labor Relations Board that a clause prohibiting "abusive or threatening language to anyone on company premises" in a San Francisco Bay area manufacturing company's handbook constituted an unfair labor practice. It is often necessary, the NLRB reasoned, for union organizers and officials to use sexual, racial, and other derogatory epithets in the course of their daily work. (A union brief submitted in the case cited examples where calling a female manager a "bitch" and referring to "niggers" in front of black workers supposedly pushed along labor negotiations.) Therefore, said the NLRB, any policy that chilled such speech prevented workers from exercising their rights under the National Labor Relations Act. A failed union organizing drive was at issue and the NLRB ordered a new election. (See "Bleeping on the Job," July.)
The three justices on the appeals panel called the NLRB's ruling "preposterous," "a stunning misreading of applicable precedent," "utterly without merit," and "absurd." Such a ruling, the justices wrote, would have put every U.S. employer in a Catch-22, since it would force them to choose between violating labor law or risking workplace discrimination lawsuits. "[The NLRB's] position is not 'reasonably defensible,'" ruled the court. "It is not even close."