By Nelson Cary and Ashley Manfull
On September 28, 2011, NLRB Administrative Law Judge (ALJ) issued a decision regarding the Section 7 rights of employees who criticize their employers via electronic media. This decision comes approximately three weeks after the decision in Hispanics United of Buffalo, ALJ Case No. 3-CA-27872, where an ALJ ruled that five employees were unlawfully terminated based on a series of Facebook posts regarding their working conditions.
In Karl Knauz Motors, Inc. and Robert Becker, ALJ Case No. 13-CA-46452 (pdf), the ALJ ruled that a car dealership acted lawfully in terminating sales employee Robert Becker based on one of two Facebook posts. In his first post, Becker posted pictures and sarcastic commentary of a customer event at the Company’s BMW dealership launching its latest luxury vehicle. Becker was upset with the Company’s food selection for the launch, so he posted pictures of the food display and salesmen posing with the food, along with various negative comments about how the company “went all out” for such an important launch. Becker and several other salesmen had raised concerns about the food in a sales meeting before the launch, concerned that a cheap event could impact their commissions.
In his second post, Becker posted pictures of an accident involving a Company vehicle at the Company’s next door Land Rover dealership. A customer’s minor son entered a running vehicle and caused it to run over another customer’s foot, travel down an embankment and land in a pond. Becker posted pictures of the distraught customer’s son and the wrecked vehicle, along with sarcastic comments about the incident.
The Company terminated Becker’s employment due to his inappropriate comments on Facebook. The Company asserted that while Becker’s comments about the food at the sales launch were inappropriate, his termination was based on his Facebook posting regarding the Land Rover accident because he was making light of an extremely serious situation. Becker filed a Complaint alleging he was terminated for engaging in protected, concerted activity.
The ALJ accepted the Company’s evidence that Becker was terminated solely for the Land Rover posting. The ALJ found that the posting did not constitute protected concerted activity because the incident had no connection to the terms and conditions of Becker’s employment and Becker never spoke to any other employees about the incident or posting.
Interestingly, the ALJ did note that Becker’s first posting constituted protected, concerted activity. While Becker made an individual decision to post those comments, the posting was a “logical outgrowth” of the prior comments that the other salesmen made at the pre-launch sales meeting. The “mocking and sarcastic tone” of the post was not alone sufficient to rise to the level of disparagement which would deprive the activity of its protection.
Finally, and of particular note to the labor professional, four employee handbook policies were also challenged. The ALJ found that three of them were unlawful, including one that prohibited employees “from being disrespectful or from using language that damages the reputation of the Company” and another requiring “outside inquiries concerning employees” to be directed to the human resources department. The ALJ evaluated these policies and determined that these policies interfered with employees’ Section 7 rights.
As issues surrounding employees’ use of Facebook and other electronic media continue to develop, practicing labor professionals should be cautious when terminating employees for conduct that might be considered protected, concerted activity. In addition, the ALJ’s ruling on the employee handbook policies is a good reminder to review such documents regularly to identify potential problems.