By George J. Miller
On September 28, 2012, the National Labor Relations Board issued its first decision in one of the social media cases which have garnered so much attention in the last year and a half. The case is Karl Knauz Motors, Inc., d/b/a Knauz BMW, 358 NLRB No. 164. This was the case of a BMW salesman named Becker who was fired after posting photos and a critical message on his Facebook page about the dealership’s choice of inexpensive food (hot dogs, small bags of chips, cookies, and bottled water) for a sales event promoting a new car model to customers. At a meeting before the event, Becker and other sales people expressed their disappointment about the choice of food and their concern that it would send the wrong message to their clients and negatively affect their commissions. At the sales event, Becker took photos of the food.
During the same week as the sales event, an underage driver drove a vehicle off the lot of a dealership across the street and into a pond in front of the BMW dealership. The BMW employees gathered to watch the commotion, and Becker took photos. He posted these photos on his Facebook page along with the comment, “Oops.” At the same time, he posted the photos of the sales event, with critical comments. Before he posted the photos about the sales event, he told his co-workers what he planned to do.
The dealership fired Becker, and he then filed an unfair labor practice charge at the NLRB. The Acting General Counsel of the NLRB decided to issue a complaint against the dealership on the basis of evidence that (a) Becker was fired at least in part because of his posting about the sales event, and (b) this posting was protected by the law because it addressed terms of employment–the possible effect of the food choice on commissions–and Becker was voicing the sentiments of other salespeople and was continuing the course of activity that began at the group meeting before the sales event.
At the trial, the dealership defended by arguing that the one and only reason it fired Becker was because of his Facebook posting about the car accident, a serious matter, not the posting about the sales event. The judge agreed with the dealership on this point, and so did the NLRB on review. They concluded that the posting about the accident was not protected, concerted activity, but rather that it was, “posted as a lark, without any discussion with any other employee [of the dealership] and had no connection to any of the employees’ terms and conditions of employment.” In ruling that the dealership’s only motive in terminating Becker was the Facebook posting about the accident, the NLRB did not have to decide whether the posting about the sales event was protected activity.
However, the judge and the NLRB also found that the dealership’s “Courtesy” policy in its employee handbook violated the law because it would tend to chill employees in the exercise of their rights under the law. The Courtesy policy said:
“(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.”
A two member majority of the three NLRB members who presided over the case agreed with the judge and held that this policy violated the law because employees could reasonably understand its broad prohibition against “disrespectful” language and “language which injures the image or reputation of the Dealership” to prohibit employees from objecting to their working conditions–whether to co-workers, supervisors, managers, or third parties–and seeking to improve them. Under the National Labor Relations Act, employees have the collective right to object to their working conditions.
In dissent, NLRB Member Hayes argued that the majority’s decision goes too far, because it, “invalidates any handbook policy that employees conceivably could construe to prohibit protected activity, regardless of whether they reasonably would do so.” Member Hayes argued that the majority read the words “disrespectful” and “language which injures the image or reputation of the Dealership” in isolation and did not give the whole policy a reasonable reading, contrary to precedent. He opined that, “employees and employers alike have a right to expect a civil workplace, promoted through policies like the one that my colleagues find unlawful.” Read in this context, he believed the policy complies with the law.
In view of this new decision and the recent efforts of the Acting General Counsel to attack the policies of non-union employers, it would be wise for all non-union employers to review their policies for compliance with the National Labor Relations Act and amend or rescind them as necessary.