253 F.3d 19 (D.C. Cir. 2001)
Adtranz ABB Daimler-Benz Transportation, N.A., Inc., Petitionerv.National Labor Relations Board, Respondent
Machinists Automotive Trades District Lodge No. 190 of Northern California, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor
No. 00-1282
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 9, 2001Decided June 26, 2001

[Copyrighted Material Omitted][Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board
Mark S. Ross argued the cause for petitioner.  With him  on the briefs was Christopher J. Pirrone.
Jeffrey L. Horowitz, Attorney, National Labor Relations  Board, argued the cause for respondent.  With him on the  brief were Leonard R. Page, General Counsel, John H.  Ferguson, Associate General Counsel, Aileen A. Armstrong,  Deputy Associate General Counsel, and Frederick C. Havard,  Supervisory Attorney.
David A. Rosenfeld argued the cause for intervenor.  With  him on the brief was Eric Borgerson.
Before:  Sentelle and Henderson, Circuit Judges, and  Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Sentelle.
Separate Concurring Opinion filed by Senior Circuit Judge  Silberman.
Sentelle, Circuit Judge:


1
Adtranz ABB Daimler-Benz  Transportation N.A., Inc. ("Adtranz") petitions for review of a  National Labor Relations Board ("NLRB") order calling for a  new representation election.  Specifically, Adtranz challenges  the NLRB's conclusion that its policies barring abusive and  threatening language and limiting solicitation in the workplace constitute unfair labor practices.  We vacate the  NLRB's unfair labor practice determinations as they are  utterly without merit.  We do not address the Board's order  of a new election, however, as it is not a reviewable final  order.

I. Background
A. Relevant Facts

2
Petitioner Adtranz refurbishes rail cars for the Bay Area  Rapid Transit system in Pittsburg, California.  In December  1997, Adtranz distributed a new employee handbook containing "Rules of Conduct" with which employees were expected  to comply.  Under these rules, "[u]sing abusive or threatening language to anyone on Company premises" is defined as  "serious misconduct," punishable with suspension for a first  offense and possible termination for a second offense.  Adtranz Employee Handbook at 11.  "Soliciting or distributing  without authorization" is defined as "extremely serious misconduct" and can result in "immediate termination of employment."  Id. at 10.  Under a separate section entitled "Solicitation and/or Distribution" the handbook provided that:


3
The unauthorized sale of tickets, solicitation of contributions, or distribution of handbills can disrupt work. Therefore, such activities are not permitted on Company premises during working time except for specific Company-sponsored solicitations or distributions.


4
Unauthorized activities include, but are not limited to, distribution of any literature or any material in work areas and solicitation in either work or non-work areas where either the employee soliciting or the employee being solicited is scheduled to be working.


5
All solicitation requests must be approved in advance by Human Resources. Id. at 15.  The solicitation and distribution rule makes no  explicit mention of union activity.  A prior version of the  employee handbook, however, explicitly covered "efforts on  behalf of a labor union."


6
Beginning in September 1998, Machinists Automotive  Trade District Lodge No. 190 of Northern California ("Union") began efforts to unionize the employees at Adtranz's  Pittsburg facility.  Pursuant to election petitions filed by both  Adtranz and the Union, the NLRB conducted a representation election on December 9, 1998.  Seventy-nine employees  voted in favor of unionization, 135 employees voted against. A non-outcome determinative number of ballots were challenged. Under Section 102.69(a) of the NLRB's rules, the  Union had seven days from the tallying of ballots to file  objections to the election, and an additional seven days from  that filing to furnish evidence in support of the objections.


7
The Union filed two "Objections to Conduct of Election" on  December 16, alleging that Adtranz "interfered with the  election by threatening employees with loss of benefits and  wages and offering increased benefits or wages to employees"  and "provided increase [sic] benefits and wages to employees."  The objections made no mention of the handbook provisions at issue in this case.  One week later, on December  23, the Union filed an unfair labor practice charge against  Adtranz, alleging that various provisions of the employee  handbook were overly broad which "interfered with, restrained, and coerced employees in the exercise of the rights  guaranteed" by the National Labor Relations Act ("NLRA").

B. Proceedings Below

8
In response to the Union's unfair labor practice filing, on  March 18, 1999, the NLRB Regional Director issued a complaint alleging, among other things, that the company's handbook policies were overly broad in violation of Section 8(a)(1)  of the NLRA.  29 U.S.C.  158(a)(1).  That same week the  Regional Director consolidated the unfair labor practice complaint with one of the Union's election complaints.  The other  election complaint was dismissed for lack of evidence.


9
On May 21, 1999, Adtranz filed a motion in limine seeking  to bar consideration of the handbook provisions in evaluating  the Union's unfair election complaint. Adtranz claimed that  consideration of the handbook in relation to the election was  procedurally barred under Burns Int'l Security Servs., 256  NLRB 959 (1981), in that the Union did not identify the  handbook as a basis for challenging the election within seven  days of the election.  On June 23, 1999, Associate Chief  Administrative Law Judge ("ACALJ") Schmidt issued an  order in which he found the handbook provisions to be  "wholly unrelated to the conduct alleged in the Union's  remaining election objection."  The ACALJ nonetheless denied Adtranz's motion to exclude the handbook finding that,  under NLRB precedent, the ALJ who would try the case had  sufficient discretion to consider the handbook in his proceeding.


10
On January 2000, an Administrative Law Judge ("ALJ")  found that the abusive language and solicitation/distribution  provisions of Adtranz's employee handbook constituted unfair  labor practices under Section 8(a)(1) of the NLRA and constituted a sufficient basis to overturn the December 1998 election.  The ALJ rejected the Union's remaining complaints,  including Adtranz's rule limiting employee use of e-mail and the Union's allegation that Adtranz manipulated employee  benefits to discourage unionization.  Adtranz ABB DaimlerBenz Transp. N.A., Inc., 331 NLRB No. 40, slip op. at 4 (May  31, 2000).  The ALJ nonetheless called for a new election and  ordered Adtranz to cease and desist from its unfair labor  practices and post an appropriate notice at its Pittsburg  facility.


11
On May 31, 2000, the NLRB summarily affirmed the ALJ's  conclusions and call for a new election, and issued a revised  order.  Specifically, the NLRB ordered Adtranz to revise its  employee handbook to rescind the "overly broad rules regarding solicitation, distribution, and abusive language" and required that Adtranz post appropriate notice at all Adtranz  facilities nationwide.  Id. at 1.  One member of the Board  dissented in part on the grounds that Adtranz's rule against  abusive language did not constitute an unfair labor practice. Id. at 1 n.3.

II. Merits

12
Adtranz petitions for review of the NLRB's order, challenging both of the NLRB's unfair labor practice determinations and ordered remedies.  The NLRB cross-petitions for  enforcement of the order.  The Union intervenes in support  of the NLRB arguing, inter alia, that the use of abusive  language, vulgar expletives, and racial epithets "is part and  parcel of the vigorous exchange that often accompanies labor  relations."  Brief of Intervenor at 2.

A. Jurisdiction

13
As an initial matter, we must address our jurisdiction, or  lack thereof, over petitioner Adtranz's claims.  This Court  has jurisdiction to review a "final order" of the NLRB  pursuant to Sections 10(e) and (f) of the NLRA.  29 U.S.C.   160(e) and (f).  An NLRB decision affirming an ALJ's  findings of unfair labor practices by an employer is such an  order.  However, "the Board's direction of a new election is  not a final order reviewable under either section 10(e) or  section 10(f) of the NLRA."  Gold Coast Restaurant v.  NLRB, 995 F.2d 257, 267 (D.C. Cir. 1993) (citing American


14
Fed'n of Labor v. NLRB, 308 U.S. 401, 409 (1940)).  Should  an employer seek "to challenge the new election, it can  precipitate an unfair labor practice charge by refusing to  recognize the union representation that could result from the  election." Id.  In the case at hand, this Court has no  jurisdiction to consider petitioner's challenge to the NLRB's  order of a new election or petitioner's claim that the NLRB  improperly considered the employee manuals in its consideration of the Union's election objections.  However, we have  jurisdiction over petitioner's remaining claims against the  Board, and the resolution of these claims will no doubt impact  future proceedings concerning the election.

B. Standard of Review

15
Section 8(a)(1) of the NLRA makes it an unfair labor  practice for an employer "to interfere with, restrain, or coerce  employees in the exercise" of their rights to unionize and  engage in related labor activities.  29 U.S.C.  158(a)(1). The NLRA delegates to the Board "the work of applying the  Act's general prohibitory language in the light of the infinite  combination of events which might be charged as violative of  its terms."  Republic Aviation Corp. v. NLRB, 324 U.S. 793,  798 (1945).  NLRB determinations as to what sort of employer conduct unlawfully restrains or interferes with protected  labor activity are entitled to considerable deference so long as  they are "reasonably defensible."  Ford Motor Co. v. NLRB,  441 U.S. 488, 497 (1979).


16
In evaluating workplace rules promulgated by employers,  the NLRB traditionally considers "whether the rules would  reasonably tend to chill employees in the exercise" of their  statutory rights.  Lafayette Park Hotel, 326 NLRB 824, 825  (1998).  Where the NLRB faithfully applies this standard,  and adequately explains the basis for its conclusion, we will  enforce its rulings.  On the other hand, where the NLRB  adopts an unreasonable or otherwise indefensible interpretation of Section 8(a)(1)'s prohibition, we will deny enforcement  and vacate the Board's order.  This case fits comfortably into  the latter category.

C. Abusive and Threatening Language

17
Adtranz seeks to maintain a decorous and peaceful workplace.  As documented in the employee manual at issue in  this case, the company's "shared values" which it deems  fundamental to its "continuous pursuit for success" include  "[t]rust and respect for self and others," "[t]eamwork and  cooperation," and "[e]ffective communication."  Adtranz Employee Handbook at 3.  In accordance with these values,  Adtranz prohibits the use of "abusive or threatening language  to anyone on company premises."  Id. at 11.  Adtranz also  prohibits harassment and other conduct that could conflict  with its values.


18
To the NLRB and Union Intervenor, Adtranz's effort to  maintain a civil and decent workplace is an unfair labor  practice that threatens the statutory rights of Adtranz's  employees under the NLRA.  Prohibiting the use of abusive  or threatening language, the Board maintains, has the unrealized potential to chill the exercise of protected activity, as the  rule "could reasonably be interpreted as barring lawful union  organizing propaganda."  Adtranz ABB, 331 NLRB No. 40,  slip op. at 4.  The NLRB does not argue that such "chilling"  necessarily has occurred at Adtranz's Pittsburg facility, nor  does it maintain that Adtranz either adopted or applied the  policy in order to frustrate or discourage union activity. Rather, the NLRB asserts that the rule against the use of  abusive and threatening language in the workplace on its face  constitutes an unfair labor practice.


19
Under the Board's reasoning, every employer in the United  States that has a rule or handbook barring abusive and  threatening language from one employee to another is now in  violation of the NLRA, irrespective of whether there has ever  been any union organizing activity at the company.  This  position is not "reasonably defensible."  It is not even close. In the simplest terms, it is preposterous that employees are  incapable of organizing a union or exercising their other  statutory rights under the NLRA without resort to abusive or  threatening language.


20
The NLRB notes that union campaigns are heated affairs,  often spawning intemperate language.  According to the  NLRB, the abusive or hostile nature of such outbursts does  not strip such language of its protected status, and therefore  it is unlawful for a company to threaten punishment for the  use of such language.  According to the Board and the Union  Intervenor, it is perfectly acceptable to use the most offensive  and derogatory racial or sexual epithets, so long as those  using such language are engaged in union organizing or  efforts to vindicate protected labor activity.  Expecting decorous behavior from employees is apparently asking too much. Indeed, Union Intervenor suggests that it is unfair to expect  union members to comport themselves with general notions of  civility and decorum when discussing union matters or exercising other statutory rights.  We do not share the Union's  low opinion of the working people it purports to represent. America's working men and women are as capable of discussing labor matters in intelligent and generally acceptable  language as those lawyers and government employees who  now condescend to them.


21
The NLRB claims that "it is well settled that an employer  violates Section 8(a)(1) ... by maintaining a rule that seeks to  broadly prohibit employee speech beyond deliberate or malicious false statements."  Brief for the NLRB at 9.  This is a  stunning misreading of the applicable precedent, including  the Board's own prior rulings.  Indeed, the NLRB has long  held the opposite, noting that "an employee who is engaged in  concerted protected activity can, by opprobrious conduct, lose  the protection of the Act."  Atlantic Steel Co., 245 NLRB  814, 816 (1979).  Under Atlantic Steel, if an employee is  sanctioned for the use of obscenity or abusive language, the  Board may not ignore the nature of the language used. Rather the NLRB is required to consider "the nature of the  employee's outburst," among other factors, in determining  whether the employee's activity remains protected.  Id.  See  also Felix Indus. v. NLRB, 2001 WL 640638 (D.C. Cir. June  12, 2001).


22
The NLRB is correct that some of its prior precedent could  be read to support the proposition it advances here.  This proves nothing.  Where, as here, the NLRB adopts an unreasonable position, it can find no solace in the fact that it made  the same mistake in prior cases.  As we have observed in  other contexts, "merely applying an unreasonable statutory  interpretation for several years [cannot] transform it into a  reasonable interpretation."  F.J. Vollmer Co. v. Magaw, 102  F.3d 591, 598 (D.C. Cir. 1996).  The NLRB may be bound by  its erroneous precedents.  We are not.  That said, the  Board's ruling here is substantially broader than the cases on  which it attempts to rely.  For instance, the rules at issue in  Lafayette Park Hotel, 326 NLRB No. 824 (1998), and Flamingo Hilton-Laughlin, 330 NLRB No. 34 (1999), barred false,  vicious, profane or malicious statements about the employer. As such, these rules discouraged speech that is arguably  related to protected activities, in a way that "abusive or  threatening language" more generally is not.  An employer's  effort to squelch criticism from employees, and threatening to  punish "false" statements without evidence of malicious intent, is quite different from demanding employees comply  with generally accepted notions of civility.  The former may  well constitute an unfair labor practice in the proper context. The latter, in and of itself, does not.  This distinction is fully  consistent with Linn v. United Plant Guard Workers of  America, Local 114, 383 U.S. 53 (1966), which held that libel  actions under state law are only preempted by the NLRA to  the extent that such actions do not require knowledge of the  statement's falsity or a reckless disregard for the truth.


23
The other cases relied upon by the NLRB are no more  helpful.  In Great Lakes Steel, the company's unfair labor  practice was a rule prohibiting the possession or distribution  of literature--whether or not during working hours--that  was "libelous, defamatory, scurrilous, abusive or insulting" or  "which would tend to disrupt order, discipline or production  within the plants." 236 NLRB 1033, 1033 (1978).  This rule  did far more than impose a standard of civility on workplace  behavior.  Thus, the Sixth Circuit Court of Appeals found  that the rule "taken as a whole" was "too broad," in no small  part because it could prohibit solicitation "during nonworking hours."  Great Lakes Steel v. NLRB, 625 F.2d 131, 132 (6th  Cir. 1980).


24
We cannot help but note that the NLRB is remarkably  indifferent to the concerns and sensitivity which prompt many  employers to adopt the sort of rule at issue here.  Under both  federal and state law, employers are subject to civil liability  should they fail to maintain a workplace free of racial, sexual,  and other harassment.  Abusive language can constitute verbal harassment triggering liability under state or federal law. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Given this legal environment, any reasonably cautious employer would consider adopting the sort of prophylactic measure contained in the Adtranz employee handbook.  While a  single, isolated remark will rarely be sufficient to trigger  employer liability, see Clark County School Dist. v. Breeden,  121 S. Ct. 1508 (2001), failure to maintain a workplace free of  such language can place an employer at significant financial  risk nonetheless.  See generally Eugene Volokh, What Speech  Does 'Hostile Work Environment' Harassment Law Restrict? 85 Geo. L.J., 627 (1997).  Under current law, the "only  reliable protection is a zero-tolerance policy, one which prohibits any statement that, when aggregated with other statements, may lead to a hostile environment."  Id. at 638-39. Indeed, such rules are commonplace. See, e.g., id. at 639 n.35  and citations therein.  To bar, or severely limit, an employer's  ability to insulate itself from such liability is to place it in a  "catch 22."


25
That the threat of legal liability justifies limitations on  threatening language due to the potential for workplace discord or violent confrontations is a principle the NLRB has  itself acknowledged.  In Southwestern Bell Tel. Co., the  NLRB upheld an employer's ban on employees' wearing  offensive shirts making derogatory reference to the employer  during contract negotiations as a "reasonable precaution  against discord and bitterness between employees and management, as well as to assure decorum and discipline in the  plant."  200 NLRB 667, 670 (1972).


26
We understand that labor negotiations produce occasional  intemperate outbursts and, in a specific context, such language may be protected.  We also recognize that the uneven  or partial application of a rule against abusive and threatening language could constitute an unfair labor practice if  directed against employees seeking to exercise their statutory  rights.  Yet the Board's position that the imposition of a  broad prophylactic rule against abusive and threatening language is unlawful on its face is simply preposterous.  It defies  explanation that a law enacted to facilitate collective bargaining and protect employees' right to organize prohibits employers from seeking to maintain civility in the workplace.

D. Solicitation

27
The second claim raised by petitioner presents a closer  issue, but only slightly.  The Adtranz employee handbook  contains a rule against "soliciting and distribution without  authorization."  Adtranz maintains that this rule when read  in context, does not discourage or chill protected activity. Instead, petitioner claims, the rules are clearly focused upon  preventing work disruptions and curbing potential distractions.  As above, the NLRB cites no evidence, let alone  substantial evidence, to the contrary.  Instead, the NLRB  argues that the policy is unlawful on its face because it will  "chill" protected labor activity.  This, too, is not a "reasonably  defensible" position.


28
Our decision in Aroostook County Regional Ophthalmology  Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996), is instructive. In Aroostook, this Court reversed the NLRB's finding that a  policy barring medical office employees from discussing grievances within earshot of patients constituted an unfair labor  practice.  We held that the NLRB could not declare such a  policy to be facially unlawful based upon "fanciful" speculation, but rather had to consider the context in which the rule  was applied and its actual impact on employees.  As we  explained:


29
In the absence of any evidence that [the employer] is imposing an unreasonably broad interpretation of the rule upon employees, the Board's determination to the  contrary is unjustified.  If an occasion arises where [the employer] is attempting to use the rule as the basis for imposing questionable restrictions upon employees' communications, the employees may seek review of the Company's actions at that time.  However, the rule on its face is not unlawful.


30
81 F.3d at 213.


31
This legal standard should come as no surprise to the  NLRB.  Indeed, the NLRB has itself cautioned against  parsing workplace rules too closely in a search for ambiguity  that could limit protected activity.  Rather, the Board should  consider "the realities of the workplace" and the actual  context in which rules are imposed. See Lafayette Park Hotel,  326 NLRB 824 (1998).  In the Board's decision before us,  however, there is no consideration of the context of Adtranz's  rule, or its impact on employees.  Indeed, the ALJ's decision  adopted by the Board considered nothing more than the  General Counsel's claim that "the rule could reasonably interpreted as barring lawful union organizing propaganda or  rhetoric."  Adtranz ABB, 331 NLRB No. 40, slip op. at 3.


32
Unlike the cases relied upon by the ALJ for his decision,  Our Way Inc., 268 NLRB 394 (1983);  Laidlaw Transit Inc.,  315 NLRB 79 (1994);  Opryland Hotel, 323 NLRB 723 (1997); and Baldor Electric Co., 245 NLRB 614 (1979), the rule in  question only applies to conduct during working time and in  the work place.  In these other cases the invalidated rules  prohibited or restricted solicitation, handbilling and the like  during breaks and meals-times when an employer could not  usually claim to have a significant interest in preventing  workplace "distractions."  " 'Working time is for work' is a  long-accepted maxim of labor relations." Our Way, 268  NLRB at 395 (quoting Peyton Packing Co., 49 NLRB 828,  843 (1943)).  Therefore, "rules prohibiting solicitation during  working time are presumptively lawful because such rules  imply that solicitation is permitted during nonworking time, a  term that refers to the employees' own time." Id. at 394. Similarly, "an employer's prohibition against employee distribution in work areas at all times is presumptively valid." Beverly Enterprises-Hawaii, Inc., 326 NLRB 335, 335 (1998).


33
The NLRB's decisions embody a "long-held standard that  rules banning solicitation during working time state with  sufficient clarity that employees may solicit on their own  time."  Our Way, Inc., 268 NLRB at 395.  But they also  support the principle that the NLRB may not cavalierly  declare policies to be facially invalid without any supporting  evidence, particularly where, as here, there are legitimate  business purposes for the rule in question and there is no  suggestion that anti-union animus motivated the policy.


34
As with the rule against abusive language, Adtranz's rule  applies across the board, so it cannot be said to discriminate  against unionization efforts or other protected activity.  Adtranz also proffered undisputed evidence to the ALJ demonstrating that there was widespread employee solicitation and  distribution during non-worktime and that the company encouraged such activities.  Not only did the NLRB fail to  consider any of petitioner's evidence, it cites no evidence to  support its concerns about "chilling" protected activity.  Indeed, there is no evidence in the record--let alone "substantial evidence"--to suggest that any employees believed that  the solicitation and distribution rule prohibited union activities, while some employees claimed the opposite.  Thus, we  find no basis for the NLRB's holding.

III. Conclusion

35
For the reasons set forth above, we vacate the NLRB's  order insofar as it found that Adtranz's employee policies  constituted unfair labor practices under the NLRA.


36
Silberman, Senior Circuit Judge, concurring:


37
I concur in  the majority's opinion with respect to "abusive and threatening language" because I agree that it is absurd for the Board  to hold that an employer who bans that sort of language-even though the ban has never been implemented in an antiunion fashion nor in a manner that could be thought to  interfere with organizational efforts--per se violates  8(a)(1). This charge was an obvious gimmick (fashioned well after the  election contest period ended) designed to overturn  the election.

