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In Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sept. 28, 2012), the NLRB held that a BMW dealership lawfully discharged an employee for a negative Facebook posting about the employer, but that it maintained an unlawfully overbroad “courtesy” rule in its employee handbook.
The employer had a handbook rule that stated “everyone is expected to be courteous, polite and friendly to our customers, vendors, and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” The Board found that such a rule reasonably tended to chill employees in the exercise of their Section 7 rights because references to “disrespectful” language and “language which injures the reputation of the dealership” could encompass protected conduct under Section 7. As an example, protests or criticisms of the employer could be considered “injurious” to the employer’s reputation and thus barred by the policy. In addition, the Board noted there was no language carving out Section 7 activity from the scope of the rule. The Board distinguished other cases in which employer policies prohibited certain types of negative statements, noting that the policies in those cases more clearly described the non-protected nature of the conduct the employer sought to prohibit, such as “abusive, unlawful, malicious, and unethical statements or actions.”
Member Hayes dissented, arguing that the majority read the words “disrespectful” and “language which injures the image or reputation of the employer” in isolation so as to create a more strained reading. Member Hayes chided the majority for implementing a test that he claimed turned more on how the NLRB, after the fact, interpreted a rule than how the employee reasonably would. Finally, Member Hayes criticized the majority for applying a “construe against the employer” standard, which he claimed should be limited to policies involving solicitation or distribution of literature – clearly Section 7 activities.
A second issue in the case concerned a salesperson who posted pictures on Facebook of an accident that occurred at an adjoining car dealership which showed a dealership vehicle crashed in a pond. The employee also posted comments and pictures criticizing the handling of a large promotional event, noting that the dealership served a “$2.00 cookie plate,” “a[n] over-cooked wiener and a stale bun.” The employee also posted comments joking about the accident with the dealership vehicle, along with pictures of the employee and family involved. The dealership terminated the salesperson after discussing the posts with him.
Testimony from dealership representatives indicated that the photos and comments about the accident, rather than the criticism of the sales event and food, were considered as the basis for termination. The administrative law judge considered the postings critical of the food at the sales event to be protected and concerted activities because the employee had discussed the issue and concerns with his co-workers. However, the postings about the dealership accident were not protected, posted “as a lark, without any discussion with any other employee . . . and had no connection with employees’ terms and conditions of employment.”
The administrative law judge rejected the NLRB’s argument that the employee was terminated for protesting the sales event and the food offerings, and noted that the posting making fun of the accident motivated the termination decision.
On the “courtesy” rule, the result is in line with the NLRB’s aggressive treatment of employer rules and the Board’s tendency to invalidate rules that could at all be read to implicate Section 7 rights, even where such a reading is strained or based only on a partial reading of the rule.
On the termination, employers can take away that Facebook postings are not automatically protected, and that such posts must have some connection to an employee’s terms and conditions of employment, or be undertaken on behalf of co-workers, in order to receive protection. The Board’s treatment of social media use by employees is a fast-evolving legal area.