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

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

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. 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.”  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.

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