Almost exactly a year ago we wrote about a case where a Chicago-area BMW car dealership employee was terminated because of his Facebook posts. (See Another Facebook Firing Found Lawful by the NLRB.) At issue in the case were two sets of posts – the first relating to the poor quality of the food served at what was supposed to be a high-end sales event (i.e. hot dogs and potato chips), and the second relating to a car accident at an adjacent Land Rover dealership where a 13-year old drove a Land Rover into a pond.
The Administrative Law Judge (ALJ) in the case found that the employee was terminated because of the Land Rover posts, not the ”hot dog” posts. The Land Rover posts were not protected by the National Labor Relations Act (NLRA) because they had nothing to do with the terms and conditions of the employee’s employment. (The hot dog posts, if you recall, were found to relate to the terms and conditions of employment because the employee was indirectly complaining that the bad food would result in him earning less in commissions at the sales event. Since the ALJ found that the hot dog posts did not lead to the employee’s termination, the fact that they were protected did not end up making a difference to the outcome of the case.)
Anyway, the National Labor Relations Board (NLRB) just issued an Order affirming the ALJ’s findings. I think the Order is interesting for two main reasons. First, it made me wonder whether we are hitting another streak of NLRB social media activity as the Board considers the various Facebook firing cases that have been issued by ALJ’s over the last year.
Second, the decision includes some interesting commentary by the Board regarding the BMW dealership’s “Courtesy” policy. As we discussed a year ago when the ALJ issued the decision, the ALJ also considered whether various dealership policies were unlawful under the NLRA. (See NLRB Facebook Firing Case Highlights Problematic Employee Handbook Policies.)
For example, the ALJ found the dealership’s “Courtesy” policy unlawful. It stated:
“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.”
The Board affirmed the ALJ’s conclusion that this policy violated the NLRA, citing its recent Costco decision as authority. As we discussed last week, in our post about the Costco case, the NLRB struck down a similar policy prohibiting electronic statements that “damage the Company … or damage any person’s reputation.”
What’s particularly interesting to me about the Board’s analysis of the Courtesy policy is its comment that if the policy did not include the second sentence prohibiting “disrespectful” language, and just had the more positive language about being “courteous” and “polite,” it might have upheld the policy. At least the Board was willing to go as far as saying it “might agree” that such a policy was “nothing more than a ‘common-sense behavioral guideline for employees.’”
Whether the Board’s comment is something you could take to the bank and rely upon in drafting your own policies, I don’t know, but at the very least, it shows that the Board is willing to consider upholding policies that focus on more positive behaviors. It also demonstrates that policies drafted in the past year should be evaluated and revised!
A step in the right direction? We’ll have to wait and see.