Client Bulletin #478
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We reported previously on a case in which a BMW salesman was terminated for postings on Facebook. (His dealership had served hot dogs and chips at a customer event, which the salesman thought was too low-brow for luxury car customers. An administrative law judge found that his posts about that were legally protected. But the salesman had also posted photographs, accompanied by snarky remarks, of a Land Rover that was accidentally driven into a pond on a test drive at a nearby dealership. The ALJ found that those postings were not protected, and warranted his discharge.)
Although the ALJ upheld the termination, he found that some provisions of the dealership's employee handbook violated Section 8(a)(1) of the National Labor Relations Act because it had a "chilling effect" on employees' Section 7 rights.
Both sides took the case to the National Labor Relations Board, and on Friday, the Board issued its decision.
First, the good news: The three-member panel of the Board agreed that the termination was lawful. Several other rulings of the ALJ were not challenged, and so the ALJ's decision stands.
Now, the bad news: Board Chair Mark Gaston Pearce and Member Sharon Block found that the employer's policy on "courtesy" (seriously!) violated Section 8(a)(1). Here's what the policy said:
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.
Pearce and Block found that the first part of this policy – the "aspirational" language – might have been lawful. (Significantly, they did not say unequivocally that it would have been.) However, in their view, the ban on disrespectful behavior or profane/injurious language violated Section 8(a)(1) of the Act because it would reasonably be construed by employees to encompass activity protected by Section 7 of the Act and thus would reasonably tend to chill employees' exercise of their Section 7 rights. Pearce and Block emphasized that when language of a rule is ambiguous it will be construed against the employer.
Member Brian Hayes dissented from this part of the decision, saying that the majority read "words and phrases in isolation and  effectively determin[ed] that the National Labor Relations Act invalidates any handbook policy that employees conceivably could construe to prohibit protected activity, regardless of whether they reasonably would do so." (Emphasis in original.) Hayes continued, "Reasonably construed and read as a whole, the rule is nothing more than a common-sense behavioral guideline for employees."
He concluded, "[T]he unassailable fact is that people use words that could be construed broadly all the time, yet manage to make themselves understood. That is because words do not exist in a vacuum; they are informed by context and experience."
Constangy is continuing to monitor closely the NLRB's decisions on social media and other employee communications. In the meantime, if you have questions, please contact any member of our Labor Relations Practice Group, or the Constangy attorney of your choice.
About Constangy, Brooks
& Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.