Bleeping on the Job.

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

Subj: Legal Speak

Date: 4/11/2001

From: [e-mail]

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.

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.

"I certainly do," said Sentelle. "You are at a terrible disadvantage when you try to defend a decision like this."

"If you have a limited rule," said Horowitz, "such as employees are not allowed to engage in sexual harassment of other employees."

"Define sexual harassment," replied Sentelle. "Any sexual harassment? If a labor organizer gets irritated... and uses the 'B' word to a female employee, that would be covered?" Sentelle, of course, knew it wouldn't be covered by a company policy if the NLRB has its way.

At this point, had Horowitz not been

such a trouper, he would have simply admitted that the NLRB is hopelessly in the pockets of the unions and that its ruling, which is absurd on many levels, is an indefensible example of the torment the NLRB puts employers through, day in and day out. But Horowitz didn't cop out. He soldiered on.

"These rules have a chilling effect."

"Why is it a good thing to use abusive language?" asked an incredulous Sentelle. "Is chilling that language a bad thing?"

"If that language is used in a context of asserting a [protected right]," responded Horowitz.

"I don't care what the context is," replied Sentelle. "You have an employee that uses the racial epithet that the counsel sets forth as protected. Is that a good thing?"

It's not necessarily a good thing. But according to Rosenfeld, who maintains that we can't expect industrial workers to speak any other way, allowing such speech in the workplace is a necessary thing. The NLRB considers it a legally protected right.

Somehow, I doubt this court will agree.

Since joining REASON' s staff in 1997 as Washington editor, Michael W. Lynch has never hesitated to call 'em like he sees 'em. With this issue, he becomes our national correspondent and leaves D.C. for Connecticut. Lynch's appreciation for plain-speaking served him well while covering the nation's capital, where Orwellian word games are the norm. For this issue, he interviews Federal Election Commission member Bradley A. Smith. (See "Prof. Smith Goes to Washington," page 48.) Smith doesn't beat around the bush either-especially when it comes to one of D.C.'s perennial topics, incumbency protection, better known by the euphemism "campaign finance reform." Lynch also reports on a bizarre legal case in which the National Labor Relations Board is arguing that union organizing requires the use of language in the workplace that would, well, make a longshoreman blush.