More questions than answers after NLRB Facebook firing ruling

by Richard L. Samson, Esq., Ogletree Deakins

By now, you have probably heard about the National Labor Rela­­tions Board’s (NLRB) Sep­tem­ber decision in Karl Knauz Motors, Inc. d/b/a Knauz BMW—the board’s first true foray into a Facebook-related firing. On appeal, the NLRB agreed with the ruling of an administrative law judge (ALJ) that Knauz BMW did not violate the National Labor Relations Act (NLRA) when it fired a salesman for making a derogatory post on Face­­book.

However, employers shouldn’t take much comfort in the outcome.

A tale of two posts

The employee, a salesman at a BMW dealership, authored two posts on his Facebook page. The first criticized the way the dealership had handled a sales event introducing a new line of BMWs. Since sales promotions directly affected the salesman’s commissions, the ALJ had no trouble concluding that the Facebook post was protected communication under the NLRA because it related to the terms and conditions of employment.

The second Facebook post, however, poked fun at an accident that occurred at a Land Rover dealership owned by the same company. A customer’s 13-year-old son had somehow gotten behind the wheel of a car and drove it into a nearby pond. The BMW salesperson posted pictures of the accident on Facebook, with the caption: “This is your car: This is your car on drugs.”

The ALJ concluded that, unlike, the first post, this one didn’t involve protected concerted activity because it had no apparent connection to any of the employees’ terms and conditions of employment.

Win for the employer

Much was made at trial about why the salesman was fired. The dealership said it was only because of the Land Rover Facebook post. The NLRB’s general counsel, who prosecuted the case, said it was because of the first post, concerning the sales event.

After a full trial, where the em­­ployee and his bosses testified, the ALJ believed the dealership’s witnesses, who said the employee was discharged solely over the Land Rover post.

Since that post was not protected, the termination was not unlawful. That’s the decision the NLRB affirmed.

But what about the first post?

But wait. Since the NLRB agreed with the ALJ’s decision that the firing was based exclusively on the second posting, the board declined to determine whether the first posting about the sales event also was protected, as the ALJ had found.

As a result, employers and HR practitioners are in limbo over whether activity in the form of the first Face­­book post may be protected under federal law.

So while the board’s decision can be viewed as a victory for employers, it would be a mistake to draw sweeping general conclusions from it. After all, if the ALJ had decided that Knauz’s supervisors weren’t credible about the first post, the outcome would have been very different.

Under-the-radar: handbooks

Overlooked in much of the discussion about Knauz has been the fact that, independent of the termination question, various handbook rules also were at issue.

In fact, the NLRB has been paying lots of attention to handbooks in recent years, particularly as the current board seeks to explore the boundaries of the NLRA beyond traditionally unionized employers.

The ALJ found three of Knauz’s rules illegal. Two prohibited em­­ployees from participating in unauthorized interviews and answering outside inquiries. The ALJ’s decision on those rules wasn’t appealed. The third was the dealership’s “courtesy” policy which read:

“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.”

Focusing on “disrespectful” and the phrase “language which injures the image or reputation of the Dealer­­ship,” the NLRB said employees could reasonably construe the broad prohibitions as encompassing protected activity. It said an employee might reasonably assume that the dealership would regard any protest or criticism as “disrespectful” or “injurious to the image or reputation of the dealership.” The board ordered Knauz to rescind the rule and remove it from its employee handbook.

This decision prompted a strong dissent from the NLRB’s sole Repub­­lican appointee, Brian Hayes, who said the policy was merely a common-sense guideline and therefore did not tread upon employees’ federally protected rights.

More to come?

The NLRB has several more “Face­­book firing” cases in the pipeline, so expect more in this arena soon. But thus far, the board’s decision in Knauz still leaves open a lot of room for discussion and debate.

This much is sure: Employers must still be cautious when evaluating what to do about employees who post negative comments on social media sites—and handbook language will be fair game for NLRB scrutiny.

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Richard L. Samson is a shareholder in the Chicago office of Ogletree Deakins.

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