As we have discussed on our blog, the National Labor Relations Board (NLRB) has continued a campaign of enforcement actions against employers who, according to the NLRB, have unlawfully terminated employees for discussing working conditions on social media. As we reported, in the first of such “Facebook” enforcement actions to come before an NLRB administrative judge, the employer was ordered to reinstate five employees and to pay back their wages.

On September 28, 2011, in the second “Facebook” case to reach an NLRB administrative judge, an employer was found to have been justified in terminating an employee car salesman for Facebook postings that mocked the employer and did not concern working conditions.

NLRB Allegations

In this proceeding, the NLRB alleged that the employer – a car dealership – fired a salesman in violation of the National Labor Relations Act (NLRA) for criticizing on Facebook the quality of a dealership sales event. According to the NLRB complaint, the dealership held a sales event to promote a new vehicle model. After the event, the salesman posted photos and commentary on his Facebook page mocking the dealership for serving hot dogs and bottled water at a sales event for a luxury car. Other employees had access to and commented on the Facebook page. The NRLB alleged the dealership managers fired the salesman after they learned of his critical Facebook posts. The NLRB argued that the firing violated Section 8(a)(1) of the NLRA, which deems an unfair labor practice for an employer to interfere with, restrain, or coerce an employee in the exercise of the employee’s NLRA Section 7 right to engage “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The dealership argued, however, that it terminated the salesman not for criticizing the sales event, but rather for posting on Facebook pictures of “bloopers” from another dealership owned by the salesman’s employer. The pictures showed a customer’s 13-year old son driving a brand new luxury SUV from the dealership into a pond, which the salesman captioned as “This is your car: This is your car on drugs.”

Decision

Dealership Sales Event

The judge agreed with the NLRB that the salesman’s Facebook posts criticizing the sales event were protected by Section 7 of the NLRA in part because the employees expressed their concerns before the salesman posted the event-related photos and commentary on Facebook. The judge reasoned that “[t]he lone act of a single employee is concerted if it ‘stems from’ or ‘logically grew’ out of prior concerted activity.” The judge also found that the inadequate refreshments offered at the sales event, “could have had an effect on [the salesman’s] compensation,” deeming them an appropriate object of discussion. In finding the activity protected, the judge was undeterred by the posts’ “mocking and sarcastic tone,” noting that the NLRB’s general position is that “unpleasantries uttered in the course of otherwise protected concerted activity do not strip away the [NLRA’s] protection.”

SUV in the Pond

The judge, however, ruled that the firing was nevertheless justified because the salesman’s Facebook posts depicting the luxury SUV in a pond were not entitled to NLRA protection. The judge found that the salesman posted about the accident “as a lark” without any discussion with other employees and, more importantly, the posts had no connection to any of the terms and conditions of the salesman’s employment. Based on testimony from both parties, the judge determined that the dealership fired the employee solely for the accident-related posts and, therefore, did not violate the NLRA.

Employee Policy

The judge also ruled on the NLRB’s allegation that the dealership’s employee policy provisions were overly broad in violation of the NLRA. The NLRB challenged the policy’s statements that: (a) “[a] bad attitude creates a difficult working environment and prevents the [d]ealership from providing quality service to our customers” and (b) “[n]o one should be disrespectful or use profanity or any other language which injures the image or reputation of the [d]ealership.” Paragraphs (c) and (d) broadly prohibited employees from participating in interviews or responding to inquiries concerning employees.

The judge held that paragraph (a) was lawful, as it “would reasonably be read to protect the relationship between [the dealership] and its customers, rather than to restrict the employees’ [NLRA] Section 7 rights.” Noting that the dealership sold luxury cars, the judge held that “a dealer in that situation … has the right to demand that its employees not display a bad attitude toward its customers.”

The judge agreed with the NLRB that paragraph (b) was unlawful because it could reasonably be interpret as curtailing Section 7 rights. The judge cited NLRB precedent finding unlawful a similar employer-created rule that prohibited “insubordination … or other disrespectful conduct” because it chilled employee rights.

As for paragraphs (c) and (d), the judge stated that if employees complied with these restrictions, “they would not be able to discuss their working conditions with union representatives, lawyers, or Board agents.” The judge held that paragraphs (c) and (d) were clearly unlawful as they explicitly restricted activities protected by Section 7 of the NLRA.

Although the dealership had rescinded paragraphs (a) through (d) of their employee policy prior to the hearing, the judge held that simply rescinding the provisions was insufficient to relieve the dealership of liability. Accordingly, the dealership was ordered to post a notice informing employees of their right to engage in protected concerted activity.

Our Take

While ultimately favorable for the employer, the decision in this second Facebook firing case is consistent with the positions on employee rights that the NRLB has articulated in its recent enforcement actions. Another important takeaway from the decision is the judge’s finding that the policies that chill employees’ rights under Section 7 of the NRLA are unlawful on their face, regardless of whether an employer actually enforces the policy or the manner in which the policy is enforced. This ruling further emphasizes the importance of reviewing and, as appropriate, revising employee policies to ensure consistency with the NLRB social media guidance.