By Nelson Cary and James Patrick
After posting to Facebook sarcastic comments and pictures about an accident that occurred at a neighboring car dealership, owned by the same entity that owned his dealership, the employer terminated the employment of a salesman. The NLRB unanimously adopted the ALJ’s finding that an employee was lawfully discharged for these comments.
The employee had also posted to Facebook other sarcastic comments and pictures about a marketing event held at the salesman’s dealership. As explained in the prior post about this case, the ALJ concluded that the comments about the marketing event were protected, concerted activity because they were the “logical outgrowth” of prior comments that other salespeople had made. In contrast, the salesman’s Facebook comments concerning the accident were posted without any discussion by other employees and had no connection to the terms and conditions of employment. Because the NLRB adopted the conclusion that the employee was terminated for his unprotected Facebook post involving an accident, however, the NLRB refused to weigh in on whether the other Facebook postings were protected.
The employer, however, was not as fortunate when it came to its employee handbook policy calling for courtesy. The NLRB concluded, in a 2-1 decision, that the policy violated Section 8(a)(1). The policy at issue stated:
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.
Taking issue with this policy, the NLRB majority found it 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.” In reaching this conclusion, the majority noted that neither the rule nor the employee handbook suggested that communications protected by Section 7 were excluded from the rule’s reach. The majority also reiterated its recent holding that ambiguous employer rules are to be construed against the employer. With this in mind, it concluded that a reasonable employee reading the policy would assume that any protest or criticism would be construed by the employer to violate the policy.
Member Hayes (R) disagreed finding that “[r]easonably construed and read as a whole, the rule is nothing more than a common-sense behavioral guideline for employees.” He argued that in addition to reading words and phrases from the policy in isolation, the majority mistakenly considered whether an employee could conceivably read the policy to prohibit protected activity rather than the proper inquiry, which is whether an employee would reasonably read the policy to prohibit such activity.
In addressing the dissent’s argument that the rule is nothing more than a “common-sense behavioral guideline,” the NLRB majority indicated that the rule may have been lawful had it been limited to aspirational language about employee behavior. Once the rule proscribed certain types of conduct and statements, however, it crossed the line and became unlawful.
For the labor professional, the NLRB’s ruling is significant for at least four reasons:
- Not all comments on Facebook, or other social media fora, are necessarily protected;
- Nonetheless, adverse employment actions that rest upon social media conduct, or any other activity that may be concerted activity, should be carefully reviewed;
- Comments about terms and conditions of employment are more likely to be protected than other types of comments; and
- While the employer’s handbook was not the central issue in the case, the termination was, faulty language in that handbook still led to legal liability for the employer, thus underscoring the importance of ensuring that a handbook complies with the NLRA.