Martin Luther Memorial Home, Inc., 646 (2004)

Docket Number:07-CA-44877

Martin Luther Memorial Home, Inc. d/b/a Lutheran Heritage Village-Livonia and Vivian A. Foreman. Case 7–CA–44877

November 19, 2004


By Chairman Battista and Members Liebman, Schaumber, Walsh, and Meisburg

On February 3, 2003, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and an answering brief.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judgeÂ’s rulings, findings,[1] and conclusions[2] and to adopt the recommended Order.

Applying the Board’s standard as set out in Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), the judge concluded that the Respondent maintained three work rules that were unlawful, but that three other work rules challenged by the General Counsel were lawful.[3] In Lafayette Park, the Board explained that to determine whether mere maintenance of certain work rules violates Section 8(a)(1) of the Act, “the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their Section 7 rights.” The judge found that the Respondent’s “no solicitation,” “no loitering,” and “no unlawful strikes, work stoppages, slowdowns, or other interference” rules were unlawfully overbroad or ambiguous and that a reasonable employee could conclude that these rules proscribed Section 7 activity.  We adopt the judge’s conclusion that these rules violate Section 8(a)(1), for the reasons explained by the judge.[4]

In addition, the judge concluded that the Respondent’s rules prohibiting “abusive and profane language,” “harassment,” and “verbal, mental and physical abuse” were lawful because they were intended to maintain order in the employer’s workplace and did not explicitly or implicitly prohibit Section 7 activity. We agree with the judge’s conclusion.

The Board has held that an employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998). In determining whether a challenged rule is unlawful, the Board must, however, give the rule a reasonable reading. It must refrain from reading particular phrases in isolation, and it must not presume improper interference with employee rights. Id. at 825, 827. Consistent with the foregoing, our inquiry into whether the maintenance of a challenged rule is unlawful begins with the issue of whether the rule explicitly restricts activities protected by Section 7. If it does, we will find the rule unlawful.[5]Â

If the rule does not explicitly restrict activity protected by Section 7, the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity;Â (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.Â

The judge found that the RespondentÂ’s rule prohibiting “abusive or profane language” was lawful. He relied on the District of Columbia CircuitÂ’s decision in Adtranz ABB Daimler-Benz Transp., N.A. Inc. v. NLRB, 253 F.3d 19 (D.C. Cir. 2001), denying enf. in pertinent part to 331 NLRB 291 (2000).[6] In Adtranz, the court found that the Board had misapplied its traditional analytic framework as set forth in Lafayette Park Hotel in concluding that an employerÂ’s rule banning “abusive or threatening language” was unlawfully overbroad. The court held that the rule was lawful because it was clearly intended to maintain order and avoid liability for workplace harassment and could not reasonably be read to prohibit activity protected by Section 7.Â

We agree with the District of Columbia Circuit’s decision in Adtranz that a rule prohibiting “abusive language” is not unlawful on its face. We reach the same conclusion in regard to profane language.[7] The court recognized that employers have a legitimate right to establish a “civil and decent work place.” Adtranz, 253 F.3d at 25. The court also recognized that employers have a legitimate right to adopt prophylactic rules banning such language because employers are subject to civil liability under Federal and State law should they fail to maintain “a workplace free of racial, sexual, and other harassment” and “abusive language can constitute verbal harassment triggering liability under state or federal law.” Adtranz, supra, 253 F.3d at 27. In addition, we agree with the court that there is no basis for a finding that a reasonable employee would interpret a rule prohibiting such language as prohibiting Section 7 activity.

Applying these principles, we find that the Respondent has not violated Section 8(a)(1) by maintaining the challenged rules prohibiting abusive or profane language.[8] The rules do not expressly cover Section 7 activity. Nor are verbal abuse and profane language an inherent part of Section 7 activity. Adtranz v. NLRB, supra, 253 F.3d at 26. The question of whether particular employee activity involving verbal abuse or profanity is protected by Section 7 turns on the specific facts of each case. Id.; see also Atlantic Steel, 245 NLRB 814, 816 (1979) (employee’s use of abusive language may be unprotected depending on circumstances of case including nature of outburst). An employee whose Section 7 activity involves behavior of this type may be protected by Section 7 in some cases, but in other cases the conduct will be unprotected. Id.  Absent application of the rule to the former conduct, we would not presume that the rule is unlawful.

There is no evidence that the challenged rules have been applied to protected activity or that the Respondent adopted the rules in response to protected activity. Rather, as in Adtranz, the rules serve legitimate business purposes: they are designed to maintain order in the workplace and to protect the Respondent from liability by prohibiting conduct that, if permitted, could result in such liability.

Further, a reasonable employee reading these rules would not construe them to prohibit conduct protected by the Act. Adtranz, supra. See also University Medical Center v. NLRB, 335 F.3d 1079, 1088–1089 (D.C. Cir. 2003) (a reasonable employee would not read a rule prohibiting “insubordination, refusing to follow directions, obey legitimate requests or orders, or other disrespectful conduct towards a [supervisor] or other individual” as proscribing solicitation of union support or concerted employee protest of supervisory activity because, read as a whole, the rule applied only to insubordinate activity). Where, as here, the rule does not refer to Section 7 activity, we will not conclude that a reasonable employee would read the rule to apply to such activity simply because the rule could be interpreted that way. To take a different analytical approach would require the Board to find a violation whenever the rule could conceivably be read to cover Section 7 activity, even though that reading is unreasonable. We decline to take that approach.[9]

We agree with our colleagues that a rule can be unlawful if employees would reasonably read it to prohibit Section 7 activity. We do not consider it necessary or appropriate to decide in this case what rules in a future hypothetical case would be unlawful under this test. Suffice it to say that, in the instant case, reasonable employees would not read the rule in that way. They would realize the lawful purpose of the challenged rules. That is, reasonable employees would infer that the Respondent’s purpose in promulgating the challenged rules was to ensure a “civil and decent” workplace, not to restrict Section 7 activity.

Our dissenting colleagues argue that the maintenance of the rules is unlawful because, in their view, the rules could be applied to prohibit conduct that, under certain circumstances, the Board would find protected under the Act. We disagree. The rules are designed to deter employees from resorting to abusive or profane language in the workplace. Section 7 protects the right of employees to “self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[10] We decline to assume, as the dissent does, that employees will be deterred from engaging in protected activities simply because the use of abusive or profane language might subject them to discipline. Rather, we agree with the view expressed by the D.C. Circuit in Adtranz that “it is preposterous [to conclude] that employees are incapable of organizing a union or exercising their other statutory rights under the NLRA without resort to abusive or threatening language.”[11]Â

Member Liebman suggests that the proper approach to this issue is to mandate that employers specify in their work rules that the rules do not apply to Section 7 activity. In essence, that approach requires an employer to create an exception for abusive or profane language simply because it occurs in the context of Section 7 activity. However, that is not the law. The use of abusive or profane language may be sufficiently egregious to deprive an employee of the protection of the Act even if used during the course of Section 7 activity.[12] Under our colleague’s logic, an employer may not maintain work rules that prohibit abusive or profane language because there are some instances in which the language is not egregious. We decline to go so far. Work rules are necessarily general in nature and are typically drafted by and for laymen, not experts in the field of labor law. We will not...

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