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In Lutheran Heritage Village-Livonia, 343 NLRB No. 75 (2004), the National Labor Relations Board upheld work rules prohibiting “abusive and profane language,” “harassment” and “verbal, mental, and physical abuse”-all of which were intended to maintain order in the workplace and none of which explicitly or implicitly prohibited � 7 activity-while finding a nonsolicitation rule and a no-loitering rule unlawful. In regulating conduct attending union organizing activities, the board’s primary concern is to protect the statutory rights of employees, but in doing so it must balance those rights against the rights of the employer. Hardin & Higgins, 1 The Developing Labor Law (BNA Fourth Ed. 2001) at 76. Section 7 of the National Labor Relations Act (NLRA) provides: “Employees shall have the right 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, and shall also have the right to refrain from any or all of such activities.” 29 U.S.C. 157 (2006). Section 8(a)(1) of the NLRA forbids employers to “interfere with, restrain or coerce” employees in the exercise of � 7 rights. 29 U.S.C. 158(a)(206). Balancing rights to organize and workplace discipline Resolution of the � 8(a)(1) issue presented by rules of conduct involve “working out an adjustment between the undisputed right of self-organization assured to employees under the [National Labor Relations] Act and the equally undisputed right of employers to maintain discipline in their establishments . . . . [O]pportunity to organize and proper discipline are both essential elements in a balanced society.” Republic Aviation v. NLRB, 324 U.S. 793, 797-798 (1945). In Lafayette Park Hotel, 326 NLRB 824, 825 (1998), the board explained that to determine whether the mere maintenance of certain work rules is unlawful, “the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their � 7 rights.” Although there is a consensus about the standard to be applied, board members have often disagreed in its application. In Lafayette Park, a majority of the board thus found that the following prohibitions on employee activities did not reasonably tend to chill the exercise of � 7 rights and thus were lawful: “[B]eing uncooperative with supervisors, employers, guests, and/or regulatory agencies or otherwise engaging in conduct that does not support the . . . Hotel’s goals and objectives.” “[D]ivulging Hotel-private information to employees or other individuals or entities that are not authorized to receive that information.” “[U]nlawful or improper conduct off the hotel’s premises or during non-working hours which affects the employee’s relationship with the job, fellow employees, supervisors, or the hotel’s reputation or good will in the community.” “[U]sing the restaurant or cocktail lounge for entertaining friends or guests without the approval of the department manager.” “[F]raternizing with hotel guests anywhere on hotel property.” However, a different board majority found that the prohibition against “making false, vicious, profane or malicious statements toward or concerning the . . . Hotel or any of its employees” would reasonably chill employees in the exercise of � 7 rights and therefore was unlawful. Finally, the board was unanimous in finding that the maintenance of the scheduling and attendance rule-”employees are required to leave the premises immediately after the completion of their shift and are not to return until the next scheduled shift”-was unlawful. In Adtranz ABB Daimler-Benz Transp. N.A. Inc. v. NLRB, 253 F.3d 19 (D.C. Cir. 2001), denying enf. in pert. part to 331 NLRB 291 (2000), the U.S. Circuit Court of Appeals for the District of Columbia found that the board had misapplied its traditional analytic framework as set forth in Lafayette Park in concluding that an employer’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 � 7. Following guidance from the D.C. Circuit in Adtranz, the board majority in Lutheran Heritage Village-Livonia announced how it will determine whether the maintenance of a challenged rule is unlawful. If the rule explicitly restricts activities protected by � 7, the rule will be found unlawful. If the rule does not explicitly restrict activity protected by � 7, a violation is dependent upon a showing of one of the following: The employee would reasonably construe the language to prohibit � 7 activity; the rule was promulgated in response to union activity; or the rule has been applied to restrict the exercise of � 7 rights. Applying this test, the majority found the rule prohibiting “abusive or profane language” 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 � 7. The majority reasoned that employers have a legitimate right to establish a “civil and decent workplace” and to adopt prophylactic rules banning abusive language because employers are increasingly subject to civil liability under civil rights laws for failing to maintain a “workplace free of racial, sexual or other harassment,” and abusive language can constitute verbal harassment triggering liability under federal or state law. Perhaps most significantly, the majority concluded that there was no basis for finding that a reasonable employee will interpret a rule prohibiting such language as prohibiting a � 7 activity and neither verbal abuse nor profane language are an inherent part of � 7 activity. The majority found there was no evidence either that the challenged rule had been applied to protected activity, or that the employer adopted the rule in response to protected activity. The majority also found that the board will not conclude that a reasonable employee would read the rule to apply to � 7 activity just because the rule could be interpreted that way, and thus the board would not find a violation just because the rule could conceivably be read to cover � 7 activity, even when that reading is unreasonable. The board majority expressly did not pass on the validity of Lafayette Park Hotel insofar as it held unlawful a rule prohibiting “false, vicious, profane, or malicious statements” because the rule there was in the disjunctive. and false statements can be protected in the context of a union-management dispute. As to the need for abusive language in the context of union organizing or other protected activity, the majority referred to the Adtranz view that “it is preposterous to conclude that employees are incapable of organizing a union or exercising their other statutory rights to use the NLRA without resort to abusive or threatening language.” 253 F. 3d at 26. Members Wilma B. Liebman and Dennis P. Walsh dissented, finding that the challenged rules were “facially ambiguous,” and that the ambiguity should be construed against the promulgator because employees “might well be chilled by the rules,” and thus no occasion for enforcement would ever arise. Contrary to the majority, they also suggested that the board not embrace the decision in Adtranz, instead finding that the ill-defined scope of the “verbal abuse” and “abusive language rules,” as well as the “no harassment rule,” would reasonably tend to cause employees to “steer wide of the prohibited zone” and refrain from voicing disagreement with their terms and conditions of employment or vigorously attempting to organize skeptical co-workers. Liebman also noted that “an employer can easily eliminate the ambiguity” by adding a statement to its rule that the prohibition does not apply to conduct that is protected under the NLRA. 343 NLRB No. 75, slip op. at 7 n.7. Board majority finds no-loitering rule unlawful It is difficult to reconcile the Lutheran Heritage Village-Livonia majority’s test for evaluating the legality of a challenged rule with the application of this test in the context of evaluating the employer’s no-loitering rule. Four of the five board members found the employer’s no-loitering rule unlawful because “employees could reasonably interpret the rule to prohibit them from lingering on the employer’s premises after the end of a shift in order to engage in [protected] activities, such as the discussion of workplace concerns.” Chairman Robert J. Battista, on the other hand, concluded that the no-loitering rule was lawful because it did not explicitly forbid protected activity; it was not promulgated in response to protected activity; it had not been applied to protected activity; and employees did not ordinarily nor reasonably refer to their organizing activities as “loitering.” It could also be argued that, post-Sept. 11, 2001, prohibiting employees from remaining in or near a workplace in an idle or apparently idle manner serves a legitimate security purpose, and therefore the promulgation of such no-loitering rules should be permitted. Following the D.C. Circuit’s view in Adtranz, Lutheran Heritage Village-Livonia recognizes the legitimate right of employers, as well as employees, to have a civil and decent workplace. Contrary to the views of the dissenting members in Lutheran Heritage Village-Livonia, the current board will not protect unreasonable interpretations of rules; merely because a rule can be interpreted to apply to protected rights is an insufficient basis for overturning the rule. The facial validity of the rule, however, will immunize neither its promulgation from challenge when the rule was promulgated in response to union or other protected activity nor its application from challenge when the rule has been applied to restrict the exercise of protected rights. Kenneth R. Dolin is a partner in the labor and employment practice group of Chicago’s Seyfarth Shaw.

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