Oct 09, 2012

NLRB Holds Policy Requiring Employees To Be Courteous Is Unlawful, But Firing Over “Lark” Facebook Posts is Acceptable

The National Labor Relations Board (the “Board”) recently held that an automobile dealership lawfully discharged a salesman because of his Facebook posts about a car accident at another dealership owned by the employer. However, in the same decision, the Board held that the employer’s handbook policy requiring the courtesy of every employee was unlawful because employees would reasonably construe its broad prohibition as encompassing protected concerted activities under Section 7 of the National Labor Relations Act (“NLRA”).

In Karl Knauz Motors, Inc., 358 NLRB 164, the employer terminated a BMW salesman for posting photos and comments about a car accident at a nearby Land Rover dealership that was also owned by the employer. The Land Rover incident occurred when a salesperson was showing a customer a car and allowed the customer’s 13-year old son to sit in the driver’s seat of the car while the salesperson was in the passenger seat, apparently, with the door open. The 13-year old boy stepped on the gas pedal sending the car over the foot of the customer and into an adjacent pond, where the salesperson was thrown into the water. The BMW salesman could see the incident from the BMW facility. He got out his camera and took pictures of the car in the pond. A few days later, the BMW salesman posted the pictures of the accident, as well as comments, on his Facebook page. The caption of the post stated, “This is your car: This is your car on drugs.” The salesman also commented, “This is what happens when a salesperson sitting in the front passenger seat (former salesperson, actually) allows a 13 year old boy to get behind the wheel . . . The kid drives over his father’s foot and into the pond in all about 4 seconds and destroys a $50,000 truck. OOOPS!” The BMW salesman was terminated shortly thereafter.

The administrative law judge (“ALJ”) found that the employer lawfully terminated the BMW salesman because of his Facebook posts regarding the Land Rover incident. The ALJ held that the posts were not protected concerted activity because they were posted as a “lark” and had no connection to any of the employee’s terms and conditions of employment. The Board agreed and affirmed the ALJ’s findings that the postings were unprotected.

Although the Board ruled in favor of the employer on the Facebook issue, it held that the employer violated the NLRA by maintaining an overbroad policy requiring employee courtesy. The policy stated:

(b) Courtesy: Courtesy is the responsibility of every employee. 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.

Relying on its recent decision in Costco Wholesale Corp. (that we previously reported on here), the Board held that the policy was unlawful because employees could reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing protected concerted activities under Section 7 of the NLRA. The Board also noted that there is nothing in the policy that would reasonably suggest to employees that employee communications protected by Section 7 of the NLRA are excluded from the broad parameters of the policy. Second, the Board stated that employees reading the policy would reasonably assume that the employer would regard statements of protest or criticism as violating the policy. Finally, the Board noted that employees would believe that even “courteous, polite and friendly” expressions of disagreement with the employer’s employment practices or terms and conditions of employment risk being deemed “disrespectful” or damaging to the employer’s image or reputation.

The Board’s decision regarding the Facebook posts is a welcome reminder that not all social media posts are protected by the NLRA. However, the Board’s holding regarding the employer’s courtesy policy shows that the Board continues to scrutinize and find unlawful employers’ policies that may reasonably be construed to prohibit employees from engaging in protected concerted activities under the NLRA. If you have any questions about these issues, please contact your employment counsel at Smith, Gambrell & Russell, LLP.

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