NLRB Is Finding Ways To Implement Its Employee Rights Notice Posting, In Spite Of Legal Challenges

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

On September 28, 2012, a three-member panel of the National Labor Relations Board (NLRB) affirmed the decision of an Administrative Law Judge (ALJ) who upheld a car dealership’s firing of a salesperson that was based on a Facebook posting.  But it also found a way to include its Notice of Employee Rights poster in the resolution of the case.  Karl Knauz Motors, Inc. Case 13-CA-036452 (Sept. 28, 2012).

In May of 2011, the National Labor Relations Board (NLRB) issued a complaint (and accompanying press release) alleging unlawful termination of the car salesman for posting photos and comments on Facebook. http://www.nlrb.gov/news/chicago-car-dealership-wrongfully-discharged-employee-facebook-posts-complaint-alleges The complaint, which was similar to other complaints filed by the NLRB in the months prior to that case, alleged that a Chicago area BMW dealership illegally fired the employee after that individual posted information on his Facebook page that arguably was critical of the dealership. 

In that case, the BMW dealership’s salesperson was unhappy with the quality of food and beverages at a dealership event promoting a new BMW model.  At the time, a Huffington Post reporter summarized the issue this way:  “[The salesman] and a few co-workers apparently felt that Sam's Club hot dogs and bottled water were no way to hype a luxury car -- and they thought their sales might suffer because of it. The salesman's critical commentary [on his own Facebook page] included photographic evidence of the unremarkable snacks.” http://www.huffingtonpost.com/2011/05/24/facebook-posting-worker-fired_n_866353.html  Other employees had access to that Facebook page.  When the dealership’s management asked the salesman to remove the posts, he immediately complied.  Nevertheless, shortly after a subsequent meeting with his managers, the employee was terminated. 

However, the employer/dealership stated that in reality, the salesman was fired because he also posted photos of an embarrassing (and potentially dangerous) accident involving a salesperson and vehicle from a neighboring car dealership, also owned by his employer.  That situation involved a saleswoman who imprudently had allowed the 13 year old son of a customer to sit behind the wheel of a luxury SUV that had been purchased by the young person’s father.  Apparently, the young man threw the car into gear and hit the gas, running over his father’s foot and jumping a wall, landing in a pond and damaging the vehicle.  

The matter was heard by an Administrative Law Judge, who determined that the Facebook posting related to the snack issue was protected concerted activity that discussed “terms and conditions” of employment.  Under the NLRA, employee communications about work-related issues are entitled to protection, and employers are prohibited from stifling that activity.  However, the ALJ went further and determined that the employee actually was fired for his second posting, in which he mocked a dangerous situation and embarrassed others – and neither activity is protected by the NLRA.  Therefore, the ALJ upheld the firing.  That decision now has been affirmed by the NLRB.

In this era of increased focus on employer limitations on electronic communications, however, the dealership hasn’t gotten away unscathed.  Two of the three members of the NLRB panel that heard the case found that the employer’s “Courtesy” policy -- which stated that “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.” – violated the NLRA because the rule might “chill” employees’ protected statements related to working conditions, or in seeking the support of others to improve those conditions.

As a penalty for that violation, the Board has required the dealership to rescind the offending policies and to notify employees of that rescission.  The notification is to be done by posting a specific form provided by the NLRB and entitled “Notice to Employees.” That notice specifically informs employees of their right to “form, join, or assist a union.”  Worth noting is the fact that this mandated Notice contains wording similar to the “Employee Rights Notice” set forth in a proposed NLRB rule that has been the subject of legal challenges since December of 2010.  While those legal challenges have kept the rule from being implemented, the NLRB has taken every opportunity to include the posting as part of any penalty imposed on employers who are found to have violated the NLRA by restricting protected communications among employees.  To avoid that scenario, employers should take the opportunity to review their social media policies, and to train managers and supervisors to coordinate with their human resources departments any planned disciplinary actions based upon the use of electronic

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!