Last week, another National Labor Relations Board ALJ ruled in part for, and in part against, a Chicago area car dealership on a Board Complaint arising out of the employer’s response to an employee’s Facebook posts. In Knauz BMW, the Judge found that the employer maintained a number of overly broad workrules in violation of Section 8(a)(1) of the Act. The ALJ also held, however, that the employee’s termination was lawful because the conduct for which he was fired did not constitute protected activity.
The employer’s handbook policies included rules (a) prohibiting "Bad Attitude," (b) mandating "Courtesy," (c) prohibiting "Unauthorized Interviews", and (d) prohibiting employees from answering any "Outside Inquiries Concerning Employees." The ALJ described them thus:
The allegedly unlawful provision of paragraphs (a) and (b) state: “A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers” and “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” Paragraphs (c) and (d) prohibit employees from participating in interviews with, or answering inquiries concerning employees from practically anybody.
The ALJ applied the standards set forth in Lafayette Park Hotel, 326 NLRB 824, 825 (1998) and Lutheran Heritage Village- Livonia, 343 NLRB 646 (2004). questioning primarily whether "employees would reasonably construe the language to prohibit Section 7 activity." He concluded that (b), (c) and (d) all violated the Act as they "clearly would be understood to restrict and limit employees in the
exercise of their Section 7 rights."
The Charging Party in the case had posted a number of photos and comments on his Facebook account involving the BMW dealership and a sister Land Rover dealership. He had posted a series of sarcastic and critical posts about the perceived inferior food served at a sales event at his dealership. Around the same time, he posted photos he had taken of a vehicle accident arising out of a test drive at the sister dealership with similarly snide commentary. At least fifteen or sixteen of his co-workers were Facebook friends with access to these posts and many responded to them.
The ALJ held that the commentary — rife with mockery — about the food at the sales event was protected, as the success or failure of such an event might have a direct impact on employees’ sales commissions. He also concluded, however, that the Charging Party was not terminated because of these posts, but rather because of the posts regarding the Land Rover accident. That behavior, he decided, was not protected:
It was posted solely by Becker, 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. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.
Concluding that he was terminated solely for that incident, the ALJ held that the terminated did not violate the Act.
This is the second ALJ decision on a Complaint arising out of employer response to employee social media use. Earlier this month, in Hispanics United of Buffalo, a judge ruled that a non-profit violated the Act by terminating employees for their Facebook posts regarding a co-worker’s complaints.