NLRB starts to fine tune its bias against social media policies
October 11, 2012
Article courtesy of SBAM Approved Partner ASE
By Michael J. Burns
The National Labor Relations Board (NLRB) has issued another decision (the second this year) addressing the case of an employee disciplined for posting negative information about his employer on a social media site. The employer fired the employee because of the negative information (comments and photos) he posted on his Facebook page. The employee, having no other recourse, filed a complaint with the NLRB arguing that his posting was only fairly communicating with his fellow employees (and the world) about the poor terms and conditions of employment at the BMW dealership where he worked.
In this case there were two Facebook posts in question. One consisted of mocking remarks the employee made about a recent sales promotion event where the dealership served hot dogs and potato chips—not the high-end fare he thought a BMW dealer should serve. The other post consisted of photos of a vehicle accident that happened at the Land Rover dealership next door.
The Administrative Law Judge who first took the case ruled the “hot dog posts” were protected by the National Labor Relations Act. However the accident photos of the incident next door were not. The ALJ’s reasoning was that the hot dog posts, because they were about a promotional event where the food was not up to BMW standards, could impact sales and therefore the employee’s earnings. The purpose of this post, the ALJ stated, was to engage his fellow employees on the subject. However the embarrassing (to the Land Rover dealership) photos of the accident next door did not have the same or similar purpose and therefore were not protected.
On appeal the case went to the NLRB, which agreed with the ALJ’s reasoning.
For the past few years, social media communications like the hot dog posts have been challenged by the NLRB as protected concerted activity under the NLRA, and therefore unfair labor practices. But in the case at hand the NLRB saw a difference between the two posts.
As to the Land Rover accident posting, the NLRB said this:
It was posted solely by [the employee], 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.
But lest it give to an employer and not give back to the employee, the NLRB also agreed with the ALJ that at least one of several of the employer’s employee handbook policy statements had some, in their opinion, illegal statements. Specifically, its policy statement on “courtesy” said this:
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.
Of this the NLRB stated:
We find the “Courtesy” rule unlawful because employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements … that object to their working conditions and seek the support of others in improving them…. A reasonable employee who wishes to avoid discipline or discharge will surely pay careful attention and exercise caution when he is told what lines he may not safely cross at work.
Employers should add this case to similar NLRB rulings in Costco and Fresenious Manufacturing (which gave employees the right to make vulgar, offensive, or threatening statements, and then lie about them to their employer) as guideposts. The two cases are about otherwise honest and innocuous policies that the NLRB is holding against employers when an employee misbehaves with defaming statements against and employer in some form.
Bottom line: When creating employee HR policies, seek the help of professionals. SBAM’s experts can help you!