The Board’s Decision
In a September 28, 2012 decision, the National Labor Relations Board for two reasons found the rule unlawful “because employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or the reputation of the Dealership’” as including employees’ protected statements objecting to and seeking improvement of terms and conditions of employment.
First, there was nothing in the rule that would reasonably suggest to employees that such protected communications were beyond the rule’s broad reach. Second, an employee would reasonably assume that the employer would “regard statements of protest or criticism as ‘disrespectful’ or ‘injur[ious] [to] the image or reputation of the Dealership.’”
The Board took particular offense to the second section of the rule as specifically proscribing certain types of conduct and statements. The Board construed these as workplace “lines” that a Karl Knauz Motors’ employee may not safely cross. In the Board’s estimation, the second section of the rule prohibits not merely a manner of speaking, but rather the actual content of employee speech—content that would damage the employer’s reputation.
Consequently, a reasonable employee would conclude that protected communications about the employer’s allegedly unlawful terms and conditions of employment would expose the employee to employer sanctions for violation of its handbook rule. Stated differently, the Board felt that compliance with the first section of the rule offered no assurance against sanctions under the second section of the rule.
Final Takeaway
Historically, NLRB decisions have ebbed and flowed depending upon the current occupant of the White House, who appoints the Board’s members. Lately, the pendulum has continued to swing in the direction of further limiting employer rights to regulate threatening or offensive employee speech, leading one commentator to question whether at-will employment will be relegated to a historical artifact.
The takeaway from the Board’s decision vector is for employers to examine employee handbooks to compare and contrast their language with that found by the NLRB to be unlawful. The cost of an amendment pales in comparison with the cost of an NLRB investigation and proceeding. Remember that the NLRA protects all private sector employees, irrespective of whether or not they belong to a union.
Maya Murphy P.C. has proudly been included in the 2024 Edition of Best Law Firms®, ranked among the top firms in the nation. In addition, Managing Partner Joseph C. Maya has been selected to The Best Lawyers in America® 2024 for his work in Employment Law and Education Law in Connecticut. Recognition in Best Lawyers® is awarded to firms and attorneys who demonstrate excellence in the industry, and is widely regarded by both clients and legal professionals as a significant honor.
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