Recently, the NLRB has received well-deserved publicity for its decision to prosecute employers for supposedly overbroad social media policies, but until recently, the NLRB itself had offered no opinion on the issue. Last week, in Karl Knauz Motors, Inc., the Board finally issued a decision in a social media case and, although the employer won, the decision leaves employers with more concern than comfort.
The facts of the case were unusual. A salesman at a BMW dealership made two troubling posts on his Facebook page. His first post centered on a client appreciation event sponsored by the dealership. In his post, the salesman mocked his employer for serving hot dogs, potato chips, cookies and other snacks that he apparently found to be unsophisticated. His second post involved an accident at a neighboring Range Rover dealership — owned by the same company — where a 13 year old child of a customer accidentally drove a car into a pond. The salesman posted a picture of the car in the pond and included several mocking comments about the incident. The dealership fired the salesman for that second post.
Ultimately, the Board found that the second post did not involve protected, concerted activity, because it was not related to the “mutual aid and protection” of his co-workers. For that reason, the employee’s termination was found to be lawful.
However, the Board made several rulings that are very troubling to employees, particularly its finding that the first post did concern protected, concerted activity. First, the Board found that in mocking the dealership for the food served, the salesman was acting for the mutual aid and benefit of his co-workers. To reach that twisted finding, the Board reasoned that the food selection “could have had an effect on his compensation” because:
some customers who were turned off by the food offerings either did not purchase a car because of it or gave [him] a lower rating in the Customer Satisfaction Rating because of it; not likely, but possible.
The Board also condoned the mocking tone of the post, finding that it “did not rise “to the level of disparagement necessary to deprive otherwise protected activities of the protection of the Act.” In so doing, the Board approved of the “mocking and sarcastic” tone of the e-mail and compared it to other cases where the Board approved of employees referring to supervisors as “a-holes” or a “cheap son of a bitch.”
The Board also decided that the dealership’s “Courtesy” policy was overbroad and would chill protected speech. The policy stated:
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.
The Board found that employees would “reasonably construe” its use of the prohibition on “disrespectful” conduct and on language that “injures the image or reputation of the Dealership” to include statements of protest about the employer’s policies or treatment of employees.
Although this was nominally a “win” for the employer, this case shows the lengths to which the Board will go in order to protect employees from speaking negatively about their employers, whether on social media or otherwise. Employers should be cautious when disciplining or terminating employees, especially for comments on social media.