The NLRB has received a lot of attention for its actions the last couple years. One of the storms was caused by the agency’s attention to employer actions based on employee Facebook postings. More to the point, employers were not too thrilled with some things being posted by employees on the internet for the multitudes to see, and in some cases disciplined or discharged the employees; the NLRB’s response in issuing complaints caused alarm. Indeed, we have devoted a lot of time to this issue here, here, here, and here.
One of the cases we reported on concerned a BMW salesman’s Facebook posts. Two such posts, in fact, one of which concerned working conditions and the other simply reporting an event. One post complained about the employer’s display of food at a customer event. The posting that prompted the discharge described a vehicle that crashed in mocking terms. The ALJ upheld the discharge, finding that the latter post about the vehicle was unprotected. The case was appealed to the NLRB.
The Board upheld the discharge in Karl Knauz Motors, Inc., 358 NLRB No. 164 (September 28, 2012), finding that the posting was, indeed, unprotected. The Board held that it was unnecessary to rule on whether the other posting was protected.
The Board did not let the employer escape unscathed, however. In a 2-1 decision, it found the following handbook rule, which played no part in the termination of the employee to be a violation of the Act:
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 or use profanity or any other language which injures the image or reputation of the Dealership.
The Board reasoned that the rule’s prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 rights because “there is nothing in the rule, or anywhere else in the handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule’s broad reach.” It is an interesting analysis because it parses the rule:
The second section of the rule is in sharp contrast to the first, specifically proscribing certain types of conduct and statements. A reasonable employee who wishes to avoid discipline or discharge will surely pay careful attention and exercise caution when he is told what lines he may not safely cross at work.
Except, of course, when the employee never reads, and the employer does not refer to the rule, just like the BMW salesman who was lawfully discharged for making a Facebook post that laughed at the car crash. Also, the analysis seems to forget, or ignore, the fact that savings clauses put into policies specifically exempting conduct under the NLRA have been deemed to be insufficient.
All of this reminds employers that the Board will continue for the forseeable future scan employer policies for theoretical violations of the Act, even when confronted with situations where the rules were not invoked.
Member Hayes dissented, and would have found that the rule in question was “nothing more than a common-sense behavorial guideline for employees.” Member Hayes stated in blunt terms the problem for employers with the Board’s analysis, especially considering the fact the rule was treated as a separate violation from the allegations related to the termination:
"This sort of piecemeal analysis has for good reason been rejected by the D.C. Circuit, as well as by the Board itself in its more reflective moments. Purporting to apply an objective test of how employees would reasonably view rules in the context of their particular workplace and employment relationship, the analysis instead represents the views of the Acting General Counsel and Board members whose post hoc deconstruction of such rules turns on their own labor relations ‘expertise.’ In other words, the test now is how the Board, not the affected employees, interprets such words and phrases in a challenged rule. Such an abstracted and bureaucratic approach is in many instances, including here, not ‘reasonably defensible.’ It is clearly unnecessary for the protection of employees’ Section 7 rights and impermissibly fetters legimate employer attempts to fashion workplace rules."