Decision by NLRB on work rules hit

The National Labor Relations Board has ruled that employers may post regulations in the workplace that critics contend will discourage workers from organizing bargaining units or engaging in other union activities.

In a 3 to 2 vote issued the day after Thanksgiving, chairman Robert J. Battista, Peter C. Schaumber, and Ronald E. Meisburg, all appointed by President Bush, said workplace rules that broadly prohibit profane language or harassment are lawful because they are intended to maintain order, and do not interfere with protected union activity.

"Employers have a legitimate right to establish a civil and decent workplace," they said. "Further, a reasonable employee reading these rules would not construe them to prohibit conduct protected by the National Labor Relations Act."

Clinton appointees Wilma B. Liebman and Dennis P. Walsh argued in their dissent that "expressions of displeasure, and even anger," are protected forms of communication under the National Labor Relations Act.

"In the course of protected activity, tempers often flare, emotions run high, and employees sometimes do use language that is abusive but not so egregious as to cost them the protection of the act," they said.

In interviews yesterday, union supporters disagreed with the board's stance. AFL-CIO president John Sweeney called it a "veiled attack on workers." Harley Shaiken, a labor professor at the University of California at Berkeley, said the finding could "chill union activity in the workplace because broad language in a ruling can be used in a way that inhibits speech, intimidating employees from exercising their rights."

The ruling is among several recent decisions by the five-member board that have chipped away at labor's organizing efforts, he said.

In a separate decision last week the board barred temporary placement workers from joining the same unions as permanent employees, reversing a 2000 precedent by the Clinton administration. .

Harris Freeman, a visiting labor professor at the University of Massachusetts at Amherst, said that in the modern-day workplace temporary placement and permanent employees work side by side, often under the same working conditions but may not have equal pay or benefits.

In July, the board ruled that graduate students at private colleges and universities cannot form unions. It also has struck down attempts to organize disabled employees at rehabilitation work programs, and it has said that a nonunion worker cannot bring a union representative to a meeting that might result in the employee's termination.

The board's latest decision on work rules stems from a 2002 Michigan case involving a dietary employee at a nursing home who broke a company policy barring workers from using profane statements in the workplace.

The employee rules also prohibited loitering, striking, and work slowdowns, but those rules were deemed unlawful by an administrative law judge who said those activities were protected under the labor relations act.

Legal records show that dietary employee Vivian Foreman claimed she was unfairly fired from her job at a nursing facility run by Lutheran Heritage Village in Livonia, Mich. Foreman argued that she lost her job because she was engaging in protected union activity that led to tensions among kitchen staff. The judge disagreed, prompting Foreman to appeal to the NLRB.

Diane E. Lewis can be reached at dlewis@globe.com.