Social Media and the NLRB (Addendum): More Fuel for the Fire

By Cameron G. Shilling (originally published 10/17/2011)

A new decision has emerged prohibiting companies from adopting and enforcing policies that impact employees’ use of social media.  We recently posted a three part blog discussing the role the National Labor Relations Board (NLRB) has adopted with respect to scrutinizing and invalidating policies that expressly or impliedly apply to employees’ use of social media, and protecting employees from discipline or discharge based on content they post to social media sites.  Before our keyboard had cooled, however, an Administrative Law Judge (ALJ) issued another such decision in Karl Knauz Motors, Inc. d/b/a Knauz BMW.  The Karl Knauz case underscores the points made in our prior blogs, and will serve to further bolster the NLRB’s self-appointed role as protector of social media freedom.The company in Karl Knauz operated adjacent BMW and Land Rover dealerships, where the employee worked as a BMW salesperson.  On June 5, 2011, the BMW sales manger held a meeting to announce the “Ultimate Driving Event” on June 9, 2011, during which the dealership would introduce the redesigned BMW 5 series.  When the manager informed the sales staff that the dealership would serve hot dogs, chips and water, two people questioned whether the food was appropriate for the event, and several of the salespeople continued to discuss that matter after the meeting.  An employee then took pictures of the food service at the event, and told his fellow salespeople that he would post the pictures to Facebook.

On June 14, 2011, an accident occurred at the Land Rover dealership.  The thirteen year son of a potential customer drove a vehicle into a lake in front of the dealership.  The same employee took pictures of the vehicle in the lake and the individuals involved in the accident.

Later that day, the employee posted to Facebook his pictures of both events, and annotated the pictures with comments.  He posted the following three comments under pictures of the BMW event:

  • I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years … the new 5 series.  A car that will generate tens in millions of dollars in revenues for Knauz over the next few years. The small 8 oz bags of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch … but to top it all off … the Hot Dog Cart.  Where our clients could attain a over cooked wiener and a stale bunn …
  • No, that’s not champagne or wine, it’s 8 oz. water.  Pop or soda would be out of the question.  In this photo, [another employee] is seen coveting the rare vintages of water that were available for our guests.
  • This is not a food event. What ever made you realize that?

The employee also posted the following three comments in relation to the Land Rover accident:

  • This is your car: This is your car on drugs.
  • This is what happens when a sales Person sitting in the front passenger seat (Former Sales Person, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything.  The kid drives over his father’s foot and into the pond in all about 4 seconds and destroys a $50,000 truck.  OOOPS!
  • I love this one … The kid’s pulling his hair out … Du, what did I do?  Oh no, is Mom gonna give me a time out?

The ALJ found that the employee’s postings with respect to the Ultimate Driving Event were concerted activity, because he had “spoke[n] up at the meeting commenting on what [he] considered to be the inadequacies of the food being offered at the event, and the subject was discussed by the salespersons after the meeting.”  Moreover, since 25% of salesperson compensation was based on commission, the activity was protected “as it could have had an effect upon compensation,” because “there may have been some customers who were turned off by the food offerings at the event.”

The ALJ also considered “whether the tone of the Facebook” postings “rose to the level of disparagement necessary to deprive otherwise protected activities of the protection of the Act.”  He concluded that the postings did not because, although the employee’s Facebook postings “clearly had a mocking and sarcastic tone that, in itself, does not deprive the activity of the protection” of the National Labor Relations Act (Act).

However, the ALJ also found that the employee’s Land Rover postings were not concerted activity, because they were “posted solely by [the employee], apparently as a lark, without any discussion with any other employee …, and had no connection to any of the employees’ terms or conditions of employment.”  Because (according to the ALJ) the company had terminated the employee for his unprotected postings about the Land Rover accident, not his protected postings about the BMW event, the company avoided having to reinstate the employee to his job.

In addition to scrutinizing the company’s termination of the employee, the ALJ also reviewed and invalidated certain of the company’s policies.  The following four policies were at issue in the case:

  • Unauthorized Interviews: As a means of protecting yourself and the Dealership, no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to “ask a few questions.” If you are asked questions about the Dealership or its current or former employees, you are to refer that individual(s) to your supervisor.
  • Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department.  No information should be given regarding any employee by any other employee or manager to an outside source.
  • Bad Attitude: Employees should display a positive attitude toward their job.  A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers.
  • 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 ALJ found the first two policies unlawful because they explicitly restrict protected activity.  “If employees complied with the dictates of these restrictions,” reasoned the ALJ, “they would not be able to discuss their working conditions with union representatives, lawyers, or [NLRB] agents.”  He also found the third policy unlawful.  The “problem” with that policy “was the word disrespectful,” which the ALJ reasoned could lead employees to “believe that their protected rights were prohibited,” since defining “due respect … seems inherently subjective.”

However, the ALJ upheld the fourth policy, which prohibited a “bad attitude” at work, on the basis that “the one sentence prohibition would reasonably be read to protect the relationship between the [company] and its customers, rather than to restrict” the employees’ rights.  Because “BMW is a top of the line automobile,” the company had a “right to demand that employees not display a bad attitude toward customers.”

The decision in Karl Knauz underscores the points in our prior blogs. Specifically, companies should review their policies to assess whether they may chill concerted activity, and adopt social media policies that comply with current NLRB requirements.  Also, companies should beware when disciplining or discharging employees for any social media related conduct, to ensure that the conduct does not involve concerted activity.

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