NLRB General Counsel Throws Dealers a Lifeline
President Trump’s pick for Labor Board general counsel just swung the pendulum back to an employer-friendly stance. Human resources expert weighs in.
January 2018, Auto Dealer Today - WebXclusive
I’ve been telling dealers for years they need to update their employee handbooks in response to a series of rulings the National Labor Relations Board (NLRB) made during the Obama administration. To many, those rulings seemed to enable employee misconduct without consequence.
Because of the presence of rules that prohibit such conduct could constitute an unfair labor practice, I suggested that handbooks needed to reflect that fact. But now it seems those days are over. Whether you’re a dealer or an employee at a dealership, this new ruling affects you. Either way, it’s incredibly interesting.
Recently the Senate confirmed President Trump’s pick for NLRB general counsel, Peter Robb. He’s a long-time management-side labor lawyer and he just took the first step to swing the pendulum back toward a management-friendly stance.
Less than a month after his confirmation, Robb released a memo that could mark the beginning of the end for some of the changes in precedent that sparked vigorous dissents from NLRB board members and left dealers utterly confused after learning that their common handbook policies prohibiting “disrespectful conduct” were now considered unlawful.
In this memo, Robb stated that NLRB regional offices must submit cases for advice when they are related to issues where longstanding precedent was overruled during the past eight years, as his office might want to provide the board with an “alternative analysis.”
The NLRB is responsible for enforcing the provisions of the National Labor Relations Act (NLRA) that offer workers protections when they engage in protected, concerted activities for their mutual aid or protection. Basically, workers have a right to band together in an attempt to improve the terms and conditions of their employment, form unions and strike in opposition to working conditions.
The NLRB doesn’t have the power to change the law, but when they issue rulings on new cases, it sets precedence for the interpretation of the law and the framework for how an analysis should be handled on similar cases moving forward.
During this timeframe, there were two significant board decisions that went against car dealerships. The first involved Knauz BMW, which terminated an employee for posting a series of posts on Facebook critical of the food the dealership served customers during a sales event. He also posted pictures of an accident at Knauz’s Land Rover dealership next door. They included a caption that mocked a customer’s child for accidentally crashing a vehicle into a pond. While the termination was upheld, the NLRB ruled that the existence of a “Courtesy Rule” in the Knauz handbook that banned “disrespectful behavior” was an unfair labor practice.
The NLRB ruling stated that a reasonable employee could interpret such a ban as encompassing his or her right to protest working conditions, as such protests would likely be viewed as disrespectful.
In another case, the owner of Plaza Auto Group and a salesman had a disagreement regarding commissions. In the course of their argument, the salesman became angry, in a raised voice, cursed at the dealer multiple times before pushing his chair and leaving the room. Plaza fired the salesperson as a result.
Ultimately, the NLRB found that Plaza violated the NLRA by firing the salesman, in part, because the conversation involved terms and conditions of employment (his commissions) and that his belligerent and menacing behavior didn’t rise to such a level as to cause him to lose protection under the NLRA (because, I mean, how can you possibly have a productive conversation related to your commissions without dropping F-bombs, cursing out your manager’s mother, and throwing furniture across the room?). That’s how businesses operate, right?
When I present on this topic, dealers are often in a state of shock when they learn that some fairly common handbook policies prohibiting activities such as disrespectful behavior, lying, workplace recording, sharing confidential information and disparaging their dealership on social media are illegal if they lack sufficient clarification or context.
There are even websites that have popped up instructing employees how to tie an inappropriate social media post to terms and conditions of employment, thus saving their jobs for behavior that would have otherwise gotten them fired. Many dealers have asked me how they can possibly run a successful store when they are not even allowed to demand courteous and respectful behavior from their employees.
Well, it seems as if they may have just been thrown a lifeline.
Over the past couple of weeks, we are already seeing the NLRB change its course. It recently overturned a 2004 precedent that stated any handbook policies that could be “reasonably construed” to prohibit employees from exercising their rights under the NLRA are illegal. And many felt that they were using the term “reasonably” pretty loosely. After their ruling last week, the board will now consider the “nature and extent” of a challenged rule’s “potential impact” on an employee’s rights under the NLRA.
The NLRB will once again consider whether an employer has a legitimate business justification for a rule, and not just if an employee could claim that a well-intentioned rule could, in any way, shape or form, be remotely construed to interfere with their NLRA rights, no matter how far the stretch.
Car dealers may be able to re-implement policies of the past — or at least an updated version of them — designed to maintain a courteous and respectful work environment. I don’t recommend reverting to your 2005 handbook just yet. Stay tuned for updates as we watch the NLRB apply their new standards and analysis on cases moving forward.
Please note that I am not a lawyer and the information contained in this article is for general information purposes only and is not designed to be comprehensive. For legal advice, you must consult your own attorney.
Dave Druzynski serves as director of human resources for Auto/Mate Dealership Systems. Email him at firstname.lastname@example.org.