In yet another decision expanding the protections for employees’ Section 7 rights, the National Labor Relations Board (“NLRB”) recently held that an employer’s policy requiring that employees be “courteous” was unlawfully overbroad. Section 7 of the National Labor Relations Act (“NLRA”) protects an employee’s right to organize and join labor organizations, to bargain collectively, and to engage in concerted labor activities for collective bargaining purposes. NLRA rights apply to most private sector businesses, even those that are not unionized.
In Karl Knauz Motors, Inc., a salesperson at a BMW dealership posted negative comments about the food served at a BMW “driving event.” He went on to say that the bad food would have a negative impact on his commissions because the food was not good enough for luxury car buyers. When management saw this posting, and other postings by this employee making light of a car accident at the employer’s dealership, they fired the salesperson.
The NLRB found that the termination did not violate the NLRA because there was credible evidence that the dealership fired the employee for his comments about the accident (unprotected by Section 7) and not his comments about the food (protected by Section 7).
However, the importance of Karl Knauz Motors rests in the NLRB’s treatment of the employer’s Courtesy policy that provided:
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 [Company].
In a 2 to 1 decision, the NLRB held that the Courtesy policy constituted an unfair labor practice. The NLRB found that the policy was too broad and prohibited employees from engaging in Section 7 protected speech, for example criticizing of working conditions. The NLRB reasoned that an employee could construe the Courtesy policy as preventing him or her from criticizing working conditions because the employer could interpret such comments as “disrespectful.” Nothing in the Courtesy policy excluded federally protected speech.
Most importantly, Karl Knauz Motors continues the trend that the NLRB will scrutinize employer’s policies and protect the employee’s right to complain or criticize working conditions. Employers should review their policies to ensure that they could not be interpreted as “chilling” their employees’ right to engage in concerted labor activities.
For assistance in reviewing your policies in light of Karl Knauz Motors, please contact Betsy Davis at 804-697-2035 or Elliot Fitzgerald at 804-697-2043.