Last week, another ALJ for the National Labor Relations Board issued a decision on a case involving an employee claim that he was unlawfully fired for comments made on a personal Facebook page. Though the ALJ upheld the employee's termination, he also concluded that multiple employer policies were impermissibly over broad.
In Knauz BMW, the charging party, a salesman at a BMW dealership, posted two comments regarding his employer on the same day. The first post expressed concerns he had expressed at work regarding the inadequacy of food being served to customers at a sales event and included photos of the event. The second related to an incident that occurred at a sister dealership in which he posted a photo of an accident that occurred when a salesperson apparently left a 13 year old behind the wheel of a vehicle. Both posts were delivered in a sarcastic mocking tone. After a meeting between management and the charging party at which both posts were discussed, the charging party was terminated.
The ALJ first considered whether either or both of these posts were protected concerted activity under Section 7 of the National Labor Relations Act. Looking first at the sales event post, the ALJ concluded that the post was protected because the charging party's concerns about the food included concerns that the food would reflect negatively on the dealership and it's sales force and prompt potential customers to purchase another type of luxury vehicle from a dealer that provided more gourmet fare at its sales event. The fact that the post was sarcastic and mocking in the ALJ's opinion did not deprive the post of its protection.
The accident post, however, presented a different situation entirely for the ALJ, who concluded that the charging party posted it "apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees' terms and conditions of employment."
The question then became one of credibility for the ALJ. Did the dealership terminate the charging party due to the protected sales event post, the unprotected accident post, or both? On behalf of the charging party, the Board's General Counsel presented evidence that, at the meeting, the dealership's vice president and general manager crumpled both printed Facebook postings in his hand, tossed them at the charging party and asked, "What were you thinking?" The charging party also testified that at the June 16 meeting, the general manager told him that his posting embarrassed his co-workers and everybody working at BMW, and that another member of management said, “The photos at Land Rover are one thing, but the photos at BMW, that's a whole different ball game.”
On the other hand, dealership witnesses testified that they viewed the sales event post as being "comical" and that the charging party was terminated solely due to the accident post, which was viewed as making fun of as something that could have caused serious injury and damaged the dealership reputation.
Fortunately for the dealership, the ALJ found it's witnesses more credible than the charging party's and therefore upheld his termination.
The ALJ then moved on to consider whether certain company policies were over broad because they would tend to deter employees from discussing their working conditions with each other. The policies at issue were as follows:
- Bad Attitude: Employees should display a positive attitude toward their job. A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers.
- 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.
- Unauthorized Interviews: As a means of protecting yourself and the Dealership, no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to "ask a few questions." If you are asked questions about the Dealership or its current or former employees, you are to refer that individual(s) to your supervisor. A decision will then be made as to whether that individual may conduct any interview and they will be introduced to you by your supervisor with a reason for the questioning. Similarly, if you are aware that an unauthorized interview is occurring at the Dealership, immediately notify the General Manager or the President.
- Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department. No information should be given regarding any employee by any other employee or manager to an outside source.
The ALJ considered all but the "Bad Attitude" policy to be over broad. Consistent with what we have seen to date in NLRB General Counsel advice memoranda, the ALJ considered each of the other policies to curtail employee ability to communicate with co- workers, union representatives, lawyers, or Board agents. The ALJ did, however, believe that the dealership had the right to require its employees not to display a bad attitude towards customers.
The dealership had rescinded each of the challenged policies prior to the ALJ hearing so it was necessary for the ALJ to order this remedy. On the other hand, because the offending provisions were rescinded, without a further explanation and without telling the employees that in the future it would not interfere with their Section 7 rights, the ALJ ordered the dealership to post a notice indicating that it would not violate its employees Section 7 rights.
Take Aways for Employers
- Understand that the NLRB General Counsel's Office and ALJ's will make very extended logical connections to find Facebook postings to be protected activity. Therefore, before firing employees for what they say on Facebook, consult with your labor and employment counsel to determine whether there is any work-connectedness that might prompt a finding of protected, concerted activity and make sure that the postings truly are damaging to business before pulling the trigger.
- Do not leave it to an ALJ to make credibility determinations on the real reason for termination. Document the lawful reasons for termination.
- Note that the policies at issue here were not specifically designated as social media policies. Nevertheless, the NLRB will address the legality of any policy that the employer applies in a social media context to determine whether, in its opinion, the policy impermissibly tramples on worker rights.