Karl Knauz BMW, Knauz Auto Group

National Labor Relations Board - Board Decisions

Sep 28, 2012

358 N.L.R.B. 1754 (N.L.R.B. 2012)

1754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 164
Karl Knauz Motors, Inc., d/b/a Knauz BMW and
Robert Becker. Case 13–CA–046452
September 28, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND BLOCK
On September 28, 2011, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Act-
ing General Counsel and the Respondent each filed ex-
ceptions and a supporting brief, an answering brief to the
other party’s exceptions, and a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
The judge found that the Respondent, which owned
and operated a BMW dealership, violated Section 8(a)(1)
of the Act by maintaining a rule3 in its employee hand-
book stating:

(b) 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.

1 The Acting General Counsel has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find that the high threshold for reversing a judge’s credibility findings
has not been met.
We adopt the judge’s finding that the Respondent lawfully dis-
charged employee Robert Becker solely because of his unprotected
Facebook postings about an auto accident at a Land Rover dealership
also owned by the Respondent. Accordingly, we find it unnecessary to
pass on whether Becker’s Facebook posts concerning a marketing event
at the Respondent’s BMW dealership were protected.
The Respondent does not except to the judge’s finding that it violat-
ed Sec. 8(a)(1) of the Act by maintaining the “Unauthorized Inter-
views” and “Outside Inquiries Concerning Employees” rules in its
employee handbook. The Acting General Counsel does not except to
the judge’s dismissal of the allegation that the “Bad Attitude” rule in
the handbook was unlawful.
2 We shall modify the judge’s recommended Order to conform to the
violations found, and we shall substitute a new notice to conform to the
Order as modified.
3 The judge found that the Respondent rescinded this and the unlaw-
ful “Unauthorized Interviews” and “Outside Inquiries Concerning
Employees” rules shortly before the hearing.
For the following reasons, we agree with the judge’s
finding.4
An employer violates Section 8(a)(1) when it main-
tains a work rule that reasonably tends to chill employees
in the exercise of their Section 7 rights. Lafayette Park
Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52
(D.C. Cir. 1999). If the rule explicitly restricts Section 7
rights, it is unlawful. Lutheran Heritage Village-Livonia,
343 NLRB 646, 646 (2004). If it does not, the violation
is dependent upon a showing of one of the following: (1)
employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated
in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights. Id. At
647.
We find the “Courtesy” rule unlawful because em-
ployees would reasonably construe its broad prohibition
against “disrespectful” conduct and “language which
injures the image or reputation of the Dealership” as en-
compassing Section 7 activity, such as employees’ pro-
tected statements—whether to coworkers, supervisors,
managers, or third parties who deal with the Respond-
ent—that object to their working conditions and seek the
support of others in improving them. First, there is noth-
ing in the rule, or anywhere else in the employee hand-
book, that would reasonably suggest to employees that
employee communications protected by Section 7 of the
Act are excluded from the rule’s broad reach. See gener-
ally Costco Wholesale Corp., 358 NLRB 1100 (2012)
(finding unlawful the maintenance of a rule prohibiting
statements posted electronically that “damage the Com-
pany . . . or damage any person’s reputation”). Second,
an employee reading this rule would reasonably assume
that the Respondent would regard statements of protest
or criticism as “disrespectful” or “injur[ious] [to] the
image or reputation of the Dealership.” Cf. NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969) (in evaluating
employer statements alleged to violate Sec. 8(a)(1), “as-
sessment of the precise scope of employer expression . . .
must be made in the context of its labor relations setting”
and “must take into account the economic dependence of
the employees on their employers”). As we recently ob-
served:

Board law is settled that ambiguous employer rules—
rules that reasonably could be read to have a coercive

4 In deciding this issue, we do not rely on Crowne Plaza Hotel, 352
NLRB 382 (2009), a case issued by a two-member Board and cited by
the judge. See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635
(2010); Hospital Pavia Perea, 355 NLRB 1300, 1300 1 fn. 2 (2010)
(recognizing that the two-member Board “lacked authority to issue an
order”).
KNAUX BMW 1755
meaning—are construed against the employer. This
principle follows from the Act’s goal of preventing
employees from being chilled in the exercise of their
Section 7 rights[,] whether or not that is the intent of
the employer.

Flex Frac Logistics, LLC, 358 NLRB 1131, 1132 (2012).
Our dissenting colleague contends that we have read
the crucial phrases of the rule out of context. In support,
he argues that the first section of the rule, encouraging
“courteous, polite, and friendly” behavior, clearly estab-
lishes that the rule is nothing more than a “common-
sense behavioral guideline for employees.” If the rule
only contained the first section, we might agree.5 By
going further than just providing the positive, aspiration-
al language of the first section, the rule conveys a more
complicated message to employees. The second section
of the rule is in sharp contrast to the first, specifically
proscribing certain types of conduct and statements. A
reasonable employee who wishes to avoid discipline or
discharge will surely pay careful attention and exercise
caution when he is told what lines he may not safely
cross at work.
There is no merit to our colleague’s accusation that we
have departed from Board precedent holding that an em-
ployer rule is unlawful if employees would reasonably
understand it to apply to protected activity. Lutheran
Heritage Village, supra, which we apply here, does not
stand for the proposition that an employer rule “must be
upheld if employees could reasonably construe its lan-
guage not to prohibit Section 7 activity.” Flex Frac Lo-
gistics, supra at 1132. Nor, in finding the rule unlawful,
do we rely on our own subjective views, or those of the
Acting General Counsel, as our colleague claims, but on
well established precedent. See Southern Maryland
Hospital, 293 NLRB 1209, 1222 (1989), enfd. in relevant
part 916 F.2d 932, 940 (4th Cir. 1990) (unlawful rule
prohibited “derogatory attacks on . . . hospital representa-
tive[s]”); Claremont Resort and Spa and Hotel, 344
NLRB 832 (2005) (unlawful rule prohibited “negative
conversations about associates and/or managers”); Bever-
ly Health & Rehabilitation Services, 332 NLRB 347, 348
(2000), enfd. 297 F.3d 468 (6th Cir. 2002) (unlawful rule
prohibited “[m]aking false or misleading work-related

5 See, e.g., Costco Wholesale Corp., supra, in which the Board
adopted the judge’s dismissal of the complaint allegation that the em-
ployer violated Sec. 8(a)(1) by maintaining a different rule requiring
employees to use “appropriate business decorum” in communicating
with others. Unlike the rule in this case, the rule there contained no
prohibition on employee statements or conduct that would reasonably
apply to protected activity.
statements concerning the company, the facility or fellow
associates”).6
In other words, compliance with the first sentence of
the rule is no assurance against sanctions under the se-
cond sentence of the rule. Reasonable employees would
believe that even “courteous, polite, and friendly” ex-
pressions of disagreement with the Respondent’s em-
ployment practices or terms and conditions of employ-
ment risk being deemed “disrespectful” or damaging to
the Respondent’s image or reputation. Thus, contrary to
the dissent’s contention, the second sentence of the rule
proscribes not a manner of speaking, but the content of
employee speech—content that would damage the Re-
spondent’s reputation. For example, here we find that
the Respondent unlawfully coerced its employees by
promulgating two other rules that restrict employees’
ability to communicate about their terms and conditions
of employment. Presumably, even if employees shared
with third parties information about our findings of the
Respondent’s unlawful conduct in the most genteel man-
ner, such sharing would be injurious to the Respondent’s
image or reputation. A reasonable employee, conse-
quently, would believe that such a communication would
expose him or her to sanctions under the Respondent’s
rule.
For these reasons, we affirm the judge’s finding that
the Respondent’s maintenance of this rule violates Sec-
tion 8(a)(1).
ORDER
The National Labor Relations Board orders that the
Respondent, Karl Knauz Motors, Inc., d/b/a Knauz
BMW, Lake Bluff, Illinois, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining the “Courtesy” rule in its employee
handbook that prohibits employees from being disre-
spectful or using profanity or any other language which
injures the image or reputation of the Dealership.
(b) Maintaining the “Unauthorized Interviews” and
“Outside Inquiries Concerning Employees” rules in its
employee handbook that prohibit employees from dis-
cussing their terms and conditions of employment or
information about other employees with third parties.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

6 The cases cited by the dissent in support of this argument are dis-
tinguishable. The rules at issue in those cases more clearly described
conduct that was outside the protections of the Act, such as malicious,
abusive, unlawful, or unethical actions or statements.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1756
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the “Courtesy” rule in its employee hand-
book that prohibits employees from being disrespectful
or using profanity or any other language which injures
the image or reputation of the Dealership.
(b) Rescind the “Unauthorized Interviews” and “Out-
side Inquiries Concerning Employees” rules in its em-
ployee handbook that prohibit employees from discuss-
ing their terms and conditions of employment or infor-
mation about other employees with third parties.
(c) Furnish all current employees with inserts for the
current employee handbook that

1. advise that the unlawful rules have been rescinded,
or
2. provide the language of lawful rules or publish and
distribute a revised employee handbook that
a. does not contain the unlawful rules, or
b. provides the language of lawful rules.

(d) Within 14 days after service by the Region, post at
its Lake Bluff, Illinois facility copies of the attached no-
tice, in English and Spanish, marked “Appendix.”7 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 13, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since January 21, 2011.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 13 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MEMBER HAYES, dissenting in part.
My colleagues find that the Respondent’s facially neu-
tral “Courtesy” rule, which encourages workplace civility
and discourages disrespectful, profane, or injurious lan-
guage, violates federal law. They reach that result by
reading words and phrases in isolation and by effectively
determining that the National Labor Relations Act inval-
idates any handbook policy that employees conceivably
could construe to prohibit protected activity, regardless
of whether they reasonably would do so. Because the
majority’s analysis departs from precedent, and because
employees and employers alike have a right to expect a
civil workplace, promoted through policies like the one
that my colleagues find unlawful, I respectfully dissent.1
The Respondent owns and operates a BMW dealer-
ship. Its employee handbook included the following
rule:

(b) 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 rule plainly does not explicitly restrict Section 7
activity. Neither was it promulgated in response to, or
applied to restrict, such activity. Thus, under the practi-
cal approach adopted by the Board in Lutheran Heritage
Village-Livonia,2 the issue here is whether employees
would reasonably construe the rule to prohibit Section 7
activity. In deciding that issue, the Board is supposed to
give the challenged rule a reasonable reading and “re-
frain from reading particular phrases in isolation.”3 My
colleagues depart from these strictures. They focus on
one word—“disrespectful”—and one phrase—“language
which injures the image or reputation of the Dealer-
ship”—in isolation from the rest of the rule. They assert
that employees would reasonably believe that even cour-
teous and friendly expressions of disagreement with em-
ployment terms might be deemed “disrespectful” or
damaging to the Respondent’s image or reputation.4

1 I join my colleagues’ dismissal of the allegation that Respondent
unlawfully discharged employee Becker and, like them, I find it unnec-
essary to decide whether Becker’s Facebook posts concerning “The
Ultimate Driving Event” were protected.
2 343 NLRB 646, 646 (2004).
3 Id.
4 My colleagues even go so far as to posit that employees would rea-
sonably fear violating the rule if they were to share information about
the uncontested judge’s findings that two other rules maintained by the
Respondent are unlawful. Inasmuch as the Respondent has effectively
conceded its obligation to rescind those rules and to post a Board reme-
dial notice about them, I can only wonder why any employee would
KNAUX BMW 1757
This sort of piecemeal analysis has for good reason
been rejected by the D.C. Circuit,5 as well as by the
Board itself in its more reflective moments.6 Purporting
to apply an objective test of how employees would rea-
sonably view rules in the context of their particular
workplace and employment relationship, the analysis
instead represents the views of the Acting General Coun-
sel and Board members whose post hoc deconstruction of
such rules turns on their own labor relations “expertise.”
In other words, the test now is how the Board, not affect-
ed employees, interprets words and phrases in a chal-
lenged rule. Such an abstracted bureaucratic approach is
in many instances, including here, not “reasonably de-
fensible.”7 It is clearly unnecessary for the protection of
employees’ Section 7 rights and impermissibly fetters
legitimate employer attempts to fashion workplace rules.
Reasonably construed and read as a whole, the rule is
nothing more than a common-sense behavioral guideline
for employees. Courtesy—“well-mannered conduct in-
dicative of respect for or consideration of others”8—is to
be extended to customers, vendors, suppliers, and
coworkers. Accordingly, in communications with indi-
viduals in those groups, employees are not to “be disre-
spectful or use profanity or any other language which
injures the image or reputation of the Dealership.” Noth-
ing in the rule suggests a restriction on the content of
conversations (such as a prohibition against discussion of
wages); rather the rule concerns the tenor of any conver-
sation. In short, by its “Courtesy” rule the Respondent
sought to promote civility and decorum in the workplace
and prevent conduct that injures the dealership’s reputa-
tion—purposes that would have been patently obvious to
Respondent’s employees, who depend on the dealer-
ship’s image for their livelihoods. Such rules, the Board
and the D.C. Circuit have held, are lawful.9

reasonably think that the Courtesy rule would nevertheless prohibit
civil discussion of these rules.
5 See Community Hospitals of Central California v. NLRB, 335 F.3d
1079, 1088 (D.C. Cir. 2003) (stating that allegedly unlawful language
in a rule must be read in context).
6 In addition to Lutheran Heritage Village, supra, see Lafayette Park
Hotel, 326 NLRB 824, 825 (1998) (rejecting an analysis that finds
“arguable ambiguity . . . through parsing the language of the rule, view-
ing [a] phrase . . . in isolation, and attributing to the [employer] an
intent to interfere with employee rights”), enfd. mem. 203 F.3d 52
(D.C. Cir. 1999).
7 Adtranz ABB Daimler-Benz Transportation v. NLRB, 253 F.3d 19,
25 (D.C. Cir. 2001) (quoting Ford Motor Co. v. NLRB, 441 U.S. 488,
497, 99 S. Ct. 1842, 60 L.Ed.2d 420 (1979).
8 Webster’s Third New International Dictionary (1981) at 523.
9 See, e.g., Palms Hotel & Casino, 344 NLRB 1363, 1368 (2005)
(finding challenged rule lawful where its terms were not “so amorphous
that reasonable employees would be incapable of grasping the expecta-
tion that they comport themselves with general notions of civility and
decorum in the workplace”); Tradesmen International, 338 NLRB 460,
The majority’s analysis departs from precedent in an-
other respect. The Board is supposed to ask whether
employees would reasonably understand a challenged
rule to prohibit protected activity, not whether they
could, in theory, do so. This is not a distinction without
a difference. As the Board has explained, where a rule
“does not address Section 7 activity . . . the mere fact that
it could be read in that fashion will not establish its ille-
gality.” Palms Hotel & Casino, supra. “To take a differ-
ent analytical approach would require the Board to find a
violation whenever the rule could conceivably be read to
cover Section 7 activity. Lutheran Heritage Village,
supra at 647.
My colleagues state the correct standard, but they fail
to faithfully apply it. Instead, citing Costco Wholesale
Corp.,10 they find the Courtesy rule unlawful because it
does not suggest that “employee communications pro-
tected by Section 7 of the Act are excluded” from its
reach. In other words, they find that the rule is unlawful
because it could be read to include protected communica-
tions, and it lacks limiting language making it clear that
such communications are excluded. That is the dissent-
ing view in Lutheran Heritage Village. See supra at
649–652. The majority in that case stated that “[w]e will
not require employers to anticipate and catalogue in their
work rules every instance in which, for example, the use
of abusive or profane language might conceivably be
protected by . . . Section 7.” Id. at 648. The majority’s
finding today cannot be reconciled with this precedent.11
For that matter, it cannot even be reconciled with the
judge’s finding and analysis in Costco that a rule requir-
ing employees to use “appropriate business decorum” in
communicating with others was lawful. The judge there

462 (2002) (collecting cases in which the Board has found lawful a
variety of rules that prohibit conduct “tending to damage or discredit an
employer’s reputation”); Adtranz, supra at 25–28 (upholding rule pro-
hibiting “abusive or threatening language”).
10 358 NLRB 1100 (2012). I did not participate in Costco.
11 My colleagues’ reliance on Southern Maryland Hospital, 293
NLRB 1209, 1222 (1989), enfd. in relevant part 916 F.2d 932, 940 (4th
Cir. 1990), is misplaced. The rule held unlawful there prohibited “de-
rogatory attacks” on others, including the employer. The Board has
specifically distinguished that rule from lawful rules, such as the one at
issue here, that prohibit using language that is actually damaging to the
employer. Tradesmen International, supra, 338 NLRB at 462 fn. 4. My
colleagues’ reliance on Claremont Resort & Spa, 344 NLRB 832
(2005), is similarly misplaced. There, a rule prohibiting “negative
conversations about associates and/or managers” was held unlawful.
That rule is far broader than the one here, was issued during an organiz-
ing campaign along with other work rules, and would have been read to
restrict complaints about those rules. Further, the respondent there
previously had been found to have unlawfully prohibited employees
from discussing the union while at work. Id. at 836. Beverly Health &
Rehabilitation Services, 332 NLRB 347, 348 (2000), enfd. 297 F.3d
468 (6th Cir. 2002), is also inapposite, as the rule there prohibited false
statements, not injurious ones.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1758
specifically rejected reliance on the dissenting view in
Lutheran Heritage Village, and the Board specifically
affirmed his reasoning.12
The majority additionally claims that it is “settled” that
“ambiguous employer rules—rules that could be read to
have a coercive meaning—are construed against the em-
ployer,” citing Flex Frac Logistics, LLC, 358 NLRB
1131 (2012), a case in which I dissented. That principle
has generally been applied to rules limiting solicitation or
distribution of literature—i.e., rules that explicitly touch
on Section 7 activity. Its application to rules that do not
explicitly address Section 7 activity, as here, contradicts
Lutheran Heritage Village, as the Board explained in
Palms Hotel, supra, 344 NLRB at 1368. The majority’s
resurrection of that concept in this context defies prece-
dent as well.13
My colleagues say the problem with the language at is-
sue here is that it is “broad” and “ambiguous.” This ra-
tionale fails on two grounds. First, language both the
Board and the D.C. Circuit have upheld could be charac-
terized in precisely the same way. Words like “appropri-
ate,” “injurious,” “offensive,” “intimidating,”14 “abu-
sive,”15 and the phrase “satisfactory attitude,”16 surely are
subject to the same critique the majority levels at “disre-
spectful.” Thus, the majority’s approach fails to ade-
quately reconcile conflicting precedent and warrants re-
versal on that ground alone.
Second, the unassailable fact is that people use words
that could be construed broadly all the time, yet manage
to make themselves understood. That is because words
do not exist in a vacuum; they are informed by context
and experience. Reasonable employees know that a
work setting differs from a barroom, and they recognize
that employers have a genuine and legitimate interest in
encouraging civil discourse and noninjurious and re-

12 358 NLRB 1100, 1112–1113.
13 Persisting in a mischaracterization that I have previously rejected,
the majority ascribes to me the view that Lutheran Heritage Village
stands for the proposition that an employer rule “must be upheld if
employees could reasonably construe its language not to prohibit Sec-
tion 7 activity,” quoting Flex Frac Logistics, supra at 1132. As I ex-
plained in my dissent in that case, I am quite aware that Lutheran says
no such thing. See id at 1134 fn. 5. I recognize that a rule is unlawful
where employees reasonably would read it as such, even if that is not
the only conceivable construction. My point here, as in Flex Frac, is
that employees would not reasonably so read the rule at issue.
14 Palms Hotel, supra at 1367.
15 Adtranz, supra.
16 Flamingo Hilton-Laughlin, 330 NLRB 287, 287 (1999) (finding
lawful a rule prohibiting failure to have or maintain a “satisfactory
attitude . . . and/or relationships” with guests or other employees).
Contrary to the majority’s attempt to distinguish Palms Hotel and Ad-
tranz as involving rules aimed at serious misconduct, the finding in
Flamingo shows that the Board has not required that a rule be limited to
serious misconduct to pass muster under the Act.
spectful speech. Indeed, as the courts have reminded us,
reasonable employees are quite capable of exercising
their Section 7 rights within acceptable norms of behav-
ior. See, e.g., Adtranz, supra, 253 F.2d at 26 (ridiculing
the notion that employees cannot be expected “to com-
port themselves with general notions of civility and deco-
rum” when engaging in protected speech). There is noth-
ing in the record in this case to indicate that reasonable
employees would feel incapable of exercising Section 7
statutory rights within the behavioral norms of the Re-
spondent’s Courtesy rule. If the Respondent had applied
the rule to punish such conduct, that would be a different
case, analyzed under a different prong of the Lutheran
Heritage Village test. However, in a “mere mainte-
nance” case such as this, our precedent requires, and so
should we, more than hypothetical and strained interpre-
tations to make out a violation of Federal law.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain the “Courtesy” rule in our em-
ployee handbook that prohibits you from being disre-
spectful or using profanity or any other language which
injures the image or reputation of the Dealership.
WE WILL NOT maintain the “Unauthorized Interviews”
and “Outside Inquiries Concerning Employees” rules in
our employee handbook that prohibit you from discuss-
ing your terms and conditions of employment or infor-
mation about other employees with third parties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the “Courtesy” rule in our employee
handbook that prohibits you from being disrespectful or
using profanity or any other language which injures the
image or reputation of the Dealership.
KNAUX BMW 1759
WE WILL rescind the “Unauthorized Interviews” and
“Outside Inquiries Concerning Employees” rules in our
employee handbook that prohibit you from discussing
your terms and conditions of employment or information
about other employees with third parties.
WE WILL furnish all of you with inserts for the current
employee handbook that
1. advise that the unlawful rules have been rescinded, or
2. provide the language of lawful rules or publish and
distribute a revised employee handbook that
a. does not contain the unlawful rules, or
b. provides the language of lawful rules.
KARL KNAUZ MOTORS, INC., D/B/A
KNAUZ BMW

Charles Muhl, Esq., for the General Counsel.
James Hendricks Jr., Esq. and Brian Kurtz, Esq. (Ford & Har-
rison, LLP), for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on July 21, 2011, in Chicago, Illinois. The
first amended complaint, which issued on July 21, 2011, and
was based upon an unfair labor practice charge that was filed
on November 30, 2010,1 by Robert Becker, alleges that Karl
Knauz Motors, Inc., d/b/a Knauz BMW (the Respondent) dis-
charged Becker on June 22 because he engaged in protected
concerted activities, in violation of Section 8(a)(1) of the Act.
The amended complaint (as amended at the hearing) also alleg-
es that since at least August 28, 2003, the Respondent has
maintained four rules in its employee handbook that contain
language that makes them unlawful. They are entitled: (a) Bad
Attitude, (b) Courtesy, (c) Unauthorized Interviews, and (d)
Outside Inquiries Concerning Employees. While admitting that
from August 23, 2003, these provisions were contained in its
employee handbook, the Respondent defends that on July 19,
2011, it notified its employees that these provisions had been
rescinded, and that this allegation has been remedied.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE FACTS
A. Becker’s Termination
The Respondent operates a BMW dealership in Lake Bluff,
Illinois (the facility), selling new BMW automobiles, as well as
used cars. The Respondent also owns an adjoining dealership
that sells Land Rover automobiles, as well as other nearby
dealerships that are not relevant to this proceeding. Becker

1 Unless indicated otherwise, all dates referred to here relate to the
year 2010.
began working at the Land Rover dealership in 1998; he trans-
ferred to the Respondent’s BMW facility in July 2004, where
he was employed until his termination on June 22. His immedi-
ate supervisor at the facility was Phillip Ceraulo, the general
sales manager; Peter Giannini and Robert Graziano were the
sales director and sales manager at the facility, and Barry Tay-
lor was the vice president and general manager.
There are three contributing elements to the pay of the Re-
spondent’s salespersons: the first is a 25-percent commission of
the profit derived from the sale of the vehicle, the profit being
the difference between the selling price and the cost of the ve-
hicle. The second element is based upon volume; in order to
qualify for this bonus, the salesperson must sell 12 cars in a
month, including, at least, 2 used cars. The final element is the
Customer Satisfaction Index, which is based upon survey ques-
tionnaires sent to customers who purchased a car: “It’s based
on how well we perform for our clients.”
The event that precipitated the situation here was an Ultimate
Driving Event (the Event) held on June 9 to introduce a rede-
signed BMW 5 Series automobile. Everybody considered this
to be a significant event, especially because the BMW Series 5
automobile is their “bread and butter” product. To make the
event even more special, BMW representatives, rather than the
Respondent’s sales people, were to be present on June 9 to take
the clients on test drives.
Becker testified that about a day or two prior to the Ultimate
Driving Event all the sales people met with Ceraulo in his of-
fice to discuss the event. In addition to Becker, the other sales
people were Greg Larsen, Fadwa Charnidski, Steve Rayburn,
Chad Holland, Howard Krause, and Dave Benck. Ceraulo told
them about the Event and what was expected of them. He told
them that for food they were going to have a hot dog cart serv-
ing the clients, in addition to cookies and chips. He testified
that the sales people rolled their eyes “in amazement” and he
told Ceraulo, “I can’t believe we’re not doing more for this
event.” Larsen said the same thing and added: “This is a major
launch of a new product and . . . we just don’t understand what
the thought is behind it.” Ceraulo responded: “This is not a
food event.” After the meeting the sales people spoke more
about it and Larsen told him that at the Mercedes Benz dealer-
ship they served hors d’oeuvres with servers. Becker also testi-
fied that Larsen said, “[W]e’re the bread and butter store in the
auto park and we’re going to get the hot dog cart.” As to why
this was important, Becker testified:

Everything in life is perception. BMW[ is] a luxury brand and
. . . what I’ve talked about with all my co-workers was the
fact that what they were going to do for this event was abso-
lutely not up to par with the image of the brand, the ultimate
driving machine, a luxury brand. And we were concerned
about the fact that it would . . . affect our commissions, espe-
cially in the sense that it would affect . . . how the dealership
looks and, how it’s presented . . . when somebody walks into
our dealership . . . it’s a beautiful auto park . . . it’s a beautiful
place . . . and if you walk in and you sit down and your waiter
serves you a happy meal from McDonald’s. The two just
don’t mix . . . we were very concerned about the fact . . . that
it could potentially affect our bottom line.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1760
Larsen testified that the meeting with Ceraulo took place on
the morning of the Event, June 9, telling them what was going
to happen: “BMW comes up and they give us a tutorial of the
new car, answer some questions that we may have. That’s pret-
ty much about it.” There was no discussion of food being
served, so Larsen asked, “what was going to be served and [I]
hoped that they weren’t going to use the hotdog cart.” He
thought that the Event should be catered: “It’s our bread and
butter car for BMW. I thought it should be more professionally
done.” There was “a little banter back and forth among the
salespeople,” and Becker said something about the food being
offered, but he could not recollect more specifically what was
said.
Ceraulo testified that prior to the Event a mailing was sent to
customers and potential customers notifying them of the Event;
there was no mention of food in this mailing. He and Graziano
met with the sales people about the Event at their regular Satur-
day sales meeting on June 5. At this event they discussed the
car that was being introduced, the incentives that were being
offered by BMW, and what was expected of the sales people.
Sometime during this meeting Larsen asked what food was
being served, but he could not recollect what was asked and
what was said, and he cannot remember if anybody else asked
about the food that was to be served.
On the day of the Event, there was the hot dog cart (with hot
dogs), bags of Doritos, cookies, and bowls of apples and orang-
es. Becker took pictures of the sales people holding hot dogs,
water and Doritos and told them that he was going to post the
pictures on his Facebook page.
As stated above, the Respondent also owns a Land Rover
dealership located adjacent to the facility. On June 14 an acci-
dent occurred at that dealership. A salesperson was showing a
customer a car and allowed the customer’s 13-year-old son to
sit in the driver’s seat of the car while the salesperson was in
the passenger seat, apparently, with the door open. The custom-
er’s son must have stepped on the gas pedal and the car drove
down a small embankment, drove over the foot of the custom-
er2 into an adjacent pond, and the salesperson was thrown into
the water (but was unharmed, otherwise).
Becker was told of the Land Rover incident and could see it
from the facility. He got his camera and took pictures of the car
in the pond. On June 14, he posted comments and pictures of
the Ultimate Driving Event of June 9, as well as the Land Rov-
er accident of June 14 on his Facebook page.3 The Event pages
are entitled: “BMW 2011 5 Series Soiree.” On the first page,
Becker wrote:

2 On the following day, the salesperson met with management and,
as punishment for what had happened the prior day, her “demo” vehicle
was taken from her, along with gas and insurance, and in lieu thereof,
she was given a $500 “demo allowance” and, until she was able to
purchase her own car, the dealership gave her a used car for her use.
She was told: “You need to slow down with your judgment and your
decisions.”
3 At the time, Becker had approximately 95 Facebook “Friends” 15
or 16 of whom were employed by the Respondent, who would be able
to access his Facebook account. He testified that, at the time, his “Pri-
vacy Settings” allowed access, as well, to “friends of Friends,” so that
they could also see his postings.
I was happy to see that Knauz went “All Out” for the most
important launch of a new BMW in years . . . the new 5 se-
ries. A car that will generate tens in millions of dollars in rev-
enues 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.

Underneath were comments by relatives and friends of Becker,
followed by Becker’s responses. On the following page there is
a picture of Holland with his arm around the woman serving the
hot dogs, and the following page has a picture of Holland with
a hot dog. Page 4 shows the snack table with cookies and fruit
and page 5 shows Charnidski holding bottles of water, with a
comment posted by Becker:

No, that’s not champagne or wine, it’s 8 oz. water. Pop or so-
da would be out of the question. In this photo, Fadwa is seen
coveting the rare vintages of water that were available for our
guests.

Page 6 shows the sign depicting the new BMW 5 Series car
with Becker’s comment below: “This is not a food event. What
ever made you realize that?” The final two pages again show
the food table and Holland holding a hot dog.
On June 14, Becker also posted the pictures of the Land
Rover accident, as well as comments, on his Facebook page.
The caption is “This is your car: This is your car on drugs.” The
first picture shows the car, the front part of which was in the
pond, with the salesperson with a blanket around her sitting
next to a woman, and a young boy holding his head. Becker
wrote:

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!

There are a number of comments on the first page, one of
which was from an employee of the Respondent in the warranty
department, stating: “How did I miss all the fun stuff?” On the
second page, under the photo of the car in the pond, Becker
wrote: “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?” Be-
low, there were comments from two of Respondent’s employ-
ees. Counsel for the General Counsel also introduced in evi-
dence a Facebook page of Casey Felling, a service advisor em-
ployed by the Respondent, containing Becker’s picture of the
car in the pond with Felling’s comment: “Finally, some action
at our Land Rover store.”
By the next day, the Respondent’s representatives had
learned of, and had been given copies of, Becker’s Facebook
postings for the BMW Event and the Land Rover accident. As a
result, Ceraulo asked Becker to remove the postings, which he
did, and Taylor decided that he wanted to meet with Becker on
the following day to discuss the postings.
On June 16, at Taylor’s request, Becker met with Taylor,
Giannini and Ceraulo in a conference room at the facility.
KNAUX BMW 1761
Becker testified that Taylor had the Facebook postings of the
BMW Event and the Land Rover accident in his hand and
tossed them to him and asked, “What were you thinking?”
Becker responded that it was his Facebook page and his
friends: “It’s none of your business.” Taylor asked, “That’s
what you’re going to claim?” and Becker said, “That’s exactly
what I’m going to claim.” Taylor again asked what he was
thinking and Becker said that he wasn’t thinking anything.
Taylor said that they received calls from other dealers and that
he thoroughly embarrassed all management and “all of your co-
workers and everybody that works at BMW.” Giannini then
said, “You know, Bob, the photos at Land Rover are one thing,
but the photos at BMW, that’s a whole different ball game.”
Becker responded that he understood. Taylor then said that they
were going to have to think about what they were going to do
with him, and that they would contact him. Meanwhile, he was
told to hand in the key to his desk. On the way out, he told
Ceraulo that there was no maliciousness on his part and Cerau-
lo told him to let things settle down, and he left. After he got
home, he called Giannini and apologized for what had oc-
curred; Giannini testified that he does not recall receiving any
apology from Becker. Becker later called William Knauz and
apologized to him as well. Knauz told him that he should have
apologized during the meeting with Taylor, Giannini, and
Ceraulo.
Notes of this June 16 meeting, taken by Giannini, state, inter
alia, that the meeting was to discuss:

. . . several negative articles on his Facebook directly pertain-
ing to situations which happened at the Knauz Automotive
Group.

We were alerted to this action by receiving calls from other
LR dealers who saw pictures/comments (negative) on the in-
ternet.

Mr. Taylor showed Bob Becker copies of the postings and
posed the question what was Bob thinking to do such a . . .
thing to the company. (One posting was regarding the acci-
dent at Land Rover when an LR4 was driven into the lake and
the second was surrounding our new 5 Series BMW Ride and
Drive Event.)

Taylor testified that at the June 16 meeting he handed Becker
the postings and asked why he would do that and Becker said
that it was his Facebook and he could do what he wanted. He
ended the meeting by telling Becker to go home and that they
would review this issue and get back to him. Taylor testified
that he saw both postings, but:

I will tell you that the thing that upset me more than anything
else was the Land Rover issues. The BMW issue, to me, was
somewhat comical, if you will . . . if it had been that, that
would have been it. But, no, it was the Land Rover issue.

Becker testified that he received a telephone call on June 22
from Taylor saying, “We all took a vote and nobody wants you
back . . . and the only thing that we ask is that you never set
foot on the premises.” Becker said that he understood, and that
was the end of the conversation. Giannini testified that on June
21 he attended a meeting with Taylor, Graziano, Ceraulo, Bill
Knauz, and William Madden, Respondent’s president. They
discussed Becker’s “. . . posting a dangerous situation that oc-
curred on our premises on his Facebook and, it being damaging
to the company, as well as the individuals involved, personally
and . . . of making light of it.” They also discussed the fact that
Becker had shown no remorse about what he did, and they
decided, unanimously, that he should be terminated. I asked
Giannini if there was any discussion at the June 21 meeting of
Becker’s Facebook postings and pictures of the June 9 Ultimate
Driving Event and the hot dog cart and he responded: “Only in
a comical way . . . that really had no bearing whatever.” He
testified that they all saw the pictures of the Event and the hot
dog cart and “we all concluded that . . . it was just somebody’s
personal feelings.”
Ceraulo testified that during this meeting there was discus-
sion about the June 9 Event and the hot dog cart, and the Land
Rover accident, but: “The basis of the decision to terminate was
the posting of the accident at the Rover store.” Taylor testified
that those present at the June 21 meeting decided unanimously
that Becker should be terminated because of his posting about
the Land Rover accident: “it was . . . making light of an ex-
tremely serious situation . . . somebody was injured and . . .
doing that would just not be accepted.” He called Becker to
inform him of his termination. Taylor testified that the discus-
sions at that meeting “centered” on the Land Rover postings:

and that was, if you will, 90 percent of the discussion. Yes,
the other one was mentioned because, we had that. But, again,
it was nothing more than, you know hey this is part of Knauz
is the hotdog cart . . . mean we laughed about it. Unfortunately
. . . that’s not why we made a decision to terminate Bobby
Becker.

Counsel for the General Counsel introduced into evidence a
number of documents subpoenaed from the Respondent that
relate to Becker’s termination. A memorandum to Becker’s
personnel file, dated June 22, from Taylor states, inter alia:

I told Bob [of the June 21 meeting] . . . that it was a unani-
mous decision to terminate his employment because he had
made negative comments about the company in a public fo-
rum and had made light on the internet of a very serious inci-
dent (Land Rover had jumped the curbing and ended up in a
pond) that embarrassed the company. I told him that we could
not accept his behavior and he was not to return to work.

In a response to questions from the Board’s Regional Office
about how the Respondent learned of the Facebook postings,
counsel for the Respondent stated that the manager of the Land
Rover dealership received calls from two other Land Rover
dealerships telling him of the postings. Counsel also attached
notes written by Ceraulo and Graziano about the meeting prior
to the June 9 Event. Ceraulo wrote that at the June 6 sales meet-
ing to discuss the June 9 Event: “A couple of very brief, light
hearted remarks were made by some of the sales staff at the
meeting regarding the snacks being served during the event.” In
regards to the Land Rover incident, Ceraulo stated:

Mr. Becker had satirized a very serious car accident that oc-
curred at our Land Rover facility on his Facebook page by
posting pictures of the accident accompanied by rude and sar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1762
castic remarks about the incident. His posting prompted a
meeting on June 16th with Mr. Becker, Barry Taylor, Peter
Giannini and myself to discuss his actions. The food com-
ments were brought up in the meeting because he had coupled
them with the Land Rover accident on his Facebook page. It
was explained to Mr. Becker that the food comments albeit
insulting to the company, were not the reason for his termina-
tion from the company. It was the postings of the Land Rover
accident were unforgivable [sic] and justification for termina-
tion. When Mr. Becker was confronted with how serious his
actions were regarding the Land Rover incident and asked
how he could make fun of an accident that could have caused
serious harm to life and limb, not to mention harming the
company’s reputation, he simply shrugged his shoulders in a
cavalier manner and said, “OK.”

Graziano’s notes regarding the Saturday meeting preceding the
June 9 Event states that at the meeting “A few client advisers
jokingly make comments hoping we would not be using the hot
dog cart.” Giannini’s letter regarding the June 16 meeting states
that Taylor asked Becker “. . . what he was thinking by placing
negative and discouraging comments regarding our company
on the internet, specifically surrounding the incident which
occurred at Land Rover involving an LR4 being driven into our
lake.”
B. The Employee Handbook
The complaint, which issued on May 20, 2011, alleged only
that Becker’s termination violated Section 8(a)(1) of the Act.
On July 11, 2011, counsel for the General Counsel filed a no-
tice of intent to amend complaint which, in addition to adding
supervisors and agents to paragraph II of the complaint, alleged
that certain portions of the Respondent’s employee handbook,
which were in effect from August 28, 2003, until July 18, 2011,
violated Section 8(a)(1) of the Act. The alleged unlawful provi-
sions are, as follows:

(a) Bad Attitude: Employees should display a positive attitude
toward their job. A bad attitude creates a difficult working en-
vironment and prevents the Dealership from providing quality
service to our customers.

(b) Courtesy: Courtesy is the responsibility of every employ-
ee. Everyone is expected to be courteous, polite and friendly
to our customers, vendors and suppliers, as well as to their fel-
low employees. No one should be disrespectful or use profan-
ity or any other language which injures the image or reputa-
tion of the Dealership.

(c) Unauthorized Interviews: As a means of protecting your-
self and the Dealership, no unauthorized interviews are per-
mitted to be conducted by individuals representing themselves
as attorneys, peace officers, investigators, reporters, or some-
one who wants to “ask a few questions.” If you are asked
questions about the Dealership or its current or former em-
ployees, you are to refer that individual(s) to your supervisor.
A decision will then be made as to whether that individual
may conduct any interview and they will be introduced to you
by your supervisor with a reason for the questioning. Similar-
ly, if you are aware that an unauthorized interview is occur-
ring at the Dealership, immediately notify the General Man-
ager or the President.

(d) Outside Inquiries Concerning Employees: All inquiries
concerning employees from outside sources should be di-
rected to the Human Resource Department. No information
should be given regarding any employee by any other em-
ployee or manager to an outside source.

On July 19, 2011, Madden and Taylor sent a memorandum to
all employees stating, inter alia:

Because our employee handbook has not been updated since
2003, we have been in the process of updating and amending
the KNAUZ employee manual for several months. We expect
to have the finalized draft to you within the month. However,
in the meantime, please be aware of the following areas in
which significant changes are being made. If you have issues
relating to these areas prior to the issuance of the new hand-
book, please see Julie Clement or Barry Taylor.

• Bad Attitude-this policy is being rescinded effective im-
mediately.
• Courtesy-this policy is being rescinded effective immedi-
ately.
• Unauthorized Interviews-this policy is being rescinded ef-
fective immediately.
• Outside Inquiries Concerning Employees-this policy is be-
ing rescinded effective immediately.

While there may be some additional changes and/or additions,
the foregoing lets you know, in general terms, where the
changes will be. Again, please let me know if you have any
questions or concerns.
III. ANALYSIS
Admittedly, Becker was terminated on June 22 for his Face-
book posting(s) on June 14. The two crucial issues are, was he
fired because of both postings, the hot dog cart incident of the
Event and the Land Rover accident, or only for the postings of
the Land Rover accident, and were these postings protected
concerted activities.
The evidence establishes that at the pre-Event sales meeting
both Becker and Larsen commented about what they consid-
ered to be the inadequacy of the food being served at the Event.
Larsen commented that he hoped that they weren’t going to use
the hot dog cart and that they should cater the Event, and Beck-
er told Ceraulo, “I can’t believe we’re not doing more for this
event.” Ceraulo’s answer was that it was not a food event. On
June 14, Becker posted his pictures and comments of the Event
on his Facebook page.
Concerted activities does not require that two or more indi-
viduals act in unison to protest, or protect, their working condi-
tions. In Meyers II, 281 NLRB 882, 887 (1986), the Board stat-
ed that concerted activities included individual activity where,
“individual employees seek to initiate or to induce or to prepare
for group action, as well as individual employees bringing truly
group complaints to the attention of management.” In Owens-
Corning Fiberglass Corp. v. NLRB, 407 F.2d 1357, 1365 (4th
Cir. 1969), the court stated that the “activity of a single em-
ployee in enlisting the support of his fellow employees for their
KNAUX BMW 1763
mutual aid and protection is as much ‘concerted activity’ as is
ordinary group activity.” In NLRB v. Mike Yurosek & Son, Inc.,
53 F.3d 261, 265 (9th Cir. 1995), the court stated: “The fact
that there was no express discussion of a group protest or
‘common cause’ is not dispositive . . . their individual actions
were concerted to the extent they involved a ‘logical out-
growth’ of prior concerted activity. The lone act of a single
employee is concerted if it ‘stems from’ or ‘logically grew’ out
of prior concerted activity.” As both Larsen and Becker spoke
up at the meeting commenting on what they considered to be
the inadequacies of the food being offered at the event, and the
subject was further discussed by the salespersons after the
meeting, even though only Becker complained further about it
on his Facebook pages without any further input from any other
salesperson, other than the Facebook pictures of Holland and
Charnidski, I find that it was concerted activities, and find that
it was protected concerted activities as it could have had an
effect upon his compensation. While it is not as obvious a situa-
tion as if he had objected to the Respondent reducing their
wages or other benefits, there may have been some customers
who were turned off by the food offerings at the event and ei-
ther did not purchase a car because of it, or gave the salesper-
son a lowering rating in the customer satisfaction rating be-
cause of it; not likely, but possible.
Counsel for the Respondent, in his brief, argues that it was
not protected concerted activities because neither Becker nor
any other employee made Respondent aware that their com-
plaints about the food being served was really about their
commissions. However, this is not a requirement of protected
concerted activities.
The final issue is whether the tone of the Facebook account
of the Event rose “to the level of disparagement necessary to
deprive otherwise protected activities of the protection of the
Act.” Allied Aviation Service Co. of New Jersey, Inc., 248
NLRB 229, 231 (1980). I find that it did not. Although Beck-
er’s Facebook account of the Event clearly had a mocking and
sarcastic tone that, in itself, does not deprive the activity of the
protection of the Act. In Pontiac Osteopathic Hospital, 284
NLRB 442, 452 (1987), the discriminatee, along with other
employees, authored a fake newsletter employing satire and
irony to mock the employer and its administrators. The admin-
istrative law judge, as affirmed by the Board, stated: “the fact
that the authors used the literary techniques of satire and irony
to make their point, as opposed to a more neutral factual recita-
tion of their dissatisfaction, does not deprive the communica-
tion that they produced of any protection under Section 7 of the
Act to which it might otherwise be entitled.” Similarly, in New
River Industries, Inc., 299 NLRB 773 (1990), an employer
announced that, to celebrate a partnership with another compa-
ny, refreshments (ice cream) would be provided to the employ-
ees. A number of employees wrote sarcastic comments about
this “reward,” and two were fired for the “demeaning and de-
grading” comments. The administrative law judge, as affirmed
by the Board, citing Pontiac Osteopathic Hospital, supra, found
that the sarcasm employed by the employees did not exceed
permissible bounds, and found the terminations unlawful. The
court, however, at 945 F.2d 1290, 1295 (4th Cir. 1991), refused
enforcement finding that the matters being publicized were not
related to the employees’ mutual aid or protection, and was
therefore not protected concerted activities. In Timekeeping
Systems, Inc., 323 NLRB 244, 249 (1997), the administrative
law judge stated: “Unpleasantries uttered in the course of oth-
erwise protected concerted activity does not strip away the
Act’s protection.” Further, referring to supervisors as “a-holes”
in Postal Service, 241 NLRB 389 (1979), and calling the com-
pany’s chief executive officer a “cheap son of a bitch” in
Groves Truck & Trailer, 281 NLRB 1194, 1195 (1986), did not
lose the Act’s protection, and neither did Becker in his Face-
book comments on the Event.
On the other hand, I find that Becker’s posting of the Land
Rover accident on his Facebook account was neither protected
nor concerted activities, and counsel for the General Counsel
does not appear to argue otherwise. It was posted solely by
Becker, apparently as a lark, without any discussion with any
other employee of the Respondent, and had no connection to
any of the employees’ terms and conditions of employment. It
is so obviously unprotected that it is unnecessary to discuss
whether the mocking tone of the posting further affects the
nature of the posting. It is therefore necessary to determine
whether Becker was terminated because of the Event posting,
the Land Rover posting, or for both.
Becker testified that at the June 16 meeting Taylor told him
that his posting embarrassed his coworkers and everybody
working at BMW, and that Giannini said, “The photos at Land
Rover are one thing, but the photos at BMW, that’s a whole
different ball game.” On the other hand, according to the testi-
mony and notes prepared by Taylor, Giannini, and Ceraulo,
while the hot dog cart and the Event were discussed on June 16,
they felt that it was “comical,” and that they laughed about it,
but that Becker was fired solely for his Land Rover Facebook
posting. While I found Becker to be a generally credible wit-
ness, I also found the Respondent’s witnesses to be more credi-
ble and can find no reason to discredit their testimony about the
June 16 and 21 meeting. Further, considering the nature of the
June 16 meeting, I do not credit Becker’s testimony that Gian-
nini downgraded the serious nature of the Land Rover posting
while stressing the seriousness of the posting of the Event. The
evidence establishes, and reason dictates, that both incidents
were discussed on June 16 and 21, but that doesn’t necessarily
establish that both incidents caused his discharge. Rather, I find
that Becker was fired on June 22 because of his Facebook post-
ing of the Land Rover accident, and as a result, I find that coun-
sel for the General Counsel has not sustained his initial burden
under Wright Line, 251 NLRB 1083 (1980).4
The final issue relates to paragraphs (a) through (d) of the
Respondent’s employee handbook that was in effect from about
August 28, 2003, until these paragraphs were rescinded on July
19, 2011. The issues are whether these provisions violate the
Act and, if they did, since they were rescinded prior to the hear-
ing, whether these violations need to be remedied. The alleged-

4 Counsel for the General Counsel, in his brief, argues the disparate
treatment of Becker as compared to the Land Rover salesperson whose
negligence cause the accident at the dealership, supports his case. I find
no similarity between the two and find it not unreasonable that they
resulted in different penalties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1764
ly unlawful provision of paragraphs (a) and (b) state: “A bad
attitude creates a difficult working environment and prevents
the Dealership from providing quality service to our customers”
and “No one should be disrespectful or use profanity or any
other language which injures the image or reputation of the
Dealership.” Paragraphs (c) and (d) prohibit employees from
participating in interviews with, or answering inquiries con-
cerning employees from, practically anybody.
The Board has gone to great lengths in attempting to find the
right balance between the exercise of employees’ rights guaran-
teed them by Section 7 of the Act and an employer’s right to
operate his business without unnecessary restrictions. In Lafa-
yette Park Hotel, 326 NLRB 824, 825 (1998), the Board stated:
“The appropriate inquiry is whether the rules would reasonably
tend to chill employees in the exercise of their Section 7 rights.
Where the rules are likely to have a chilling effect on Section 7
rights, the Board may conclude that their maintenance is an
unfair labor practice even absent evidence of enforcement.” In
Lutheran Heritage Village- Livonia, 343 NLRB 646 (2004), the
Board stated:

Our inquiry into whether the maintenance of a challenged rule
is unlawful begins with the issue of whether the rule explicitly
restricts activities protected by Section 7. If it does, we will
find the rule unlawful.

If the rule does not explicitly restrict activity protected by Sec-
tion 7, the violation is dependent upon a showing of one of the
following: (1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was promul-
gated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.

In Crowne Plaza Hotel, 352 NLRB 382 (2008), the issue be-
fore the Board was the legality of a number of provisions con-
tained in the employer’s employee handbook, including one
entitled Press Release and News Media, somewhat similar to
(c) Unauthorized Interviews and (d) Outside Inquiries Concern-
ing Employees. The provision provided that for any incident
generating significant public interest or press inquiries, the
release of information will be handled by the employer’s gen-
eral manager: “Under no circumstances will statements or in-
formation be supplied by any other employee.” In finding this
rule unlawful, the Board stated that the term “significant public
interest” is broad enough to encompass a labor dispute, such as
a strike, and “A rule that prohibits employees from exercising
their Section 7 right to communicate with the media regarding a
labor dispute is unlawful.” The Board further found that the
sentence quoted above, “would reasonably be construed as
prohibiting all employee communications with the media re-
garding a labor dispute,” and that this restriction violated Sec-
tion 8(a)(1) of the Act. In the NLS Group, 352 NLRB 744, 745
(2008), the employer had the discriminatee sign an employment
agreement containing the following confidentiality language:

Employee also understands that the terms of this employment,
including compensation, are confidential to employee and the
NLS Group. Disclosure of these terms to other parties may
constitute grounds for dismissal.

The Board found this provision unlawful as it reasonably could
be construed to prohibit activity protected by Section 7: “Em-
ployees would reasonably understand that language as prohibit-
ing discussions of their compensation with union representa-
tives.”
Paragraphs (c) and (d) clearly would be understood to restrict
and limit employees in the exercise of their Section 7 rights,
and Respondent does not appear to argue otherwise. If employ-
ees complied with the dictates of these restrictions, they would
not be able to discuss their working conditions with union rep-
resentatives, lawyers, or Board agents. I therefore find that the
restrictions contained in these paragraphs violate Section
8(a)(1) of the Act. The restrictions contained in Paragraphs (a)
and (b) are not as obvious. As they do not explicitly restrict
Section 7 rights, their legality is determined by the three criteria
set forth in Lutheran Heritage Village, supra. As parts (2) and
(3) have not been established, the test is whether employees
would reasonably construe Paragraphs (a) and (b) to prohibit
their exercise of Section 7 rights. In Albertson’s, Inc., 351
NLRB 254, 259 (2007), the Board stated: “In determining
whether an employer’s maintenance of a work rule reasonably
tends to chill employees in the exercise of Section 7 rights, the
Board will give the work rule a reasonable reading and refrain
from reading particular phrases in isolation.” In dismissing the
allegations regarding certain work rules, the Board stated that
they did not believe that the cited rules could reasonably be
read as encompassing Section 7 activity. Citing Lafayette Park
Hotel, supra, the Board stated: “To ascribe such a meaning to
these words is, quite simply farfetched. Employees reasonably
would believe that these rules were intended to reach serious
misconduct, not conduct protected by the Act.”
Based upon the above cited cases, I recommend that the alle-
gation regarding paragraph (a) be dismissed. I believe that the
one sentence prohibition would reasonably be read to protect
the relationship between the Respondent dealer and its custom-
ers, rather than to restrict the employees’ Section 7 rights. As
was frequently mentioned during the hearing, BMW is a top of
the line automobile with, I imagine, an appropriate sticker cost.
A dealer in that situation, I believe, has the right to demand that
its employees not display a bad attitude toward its customers.
On the other hand, I find that paragraph (b) violates Section
8(a)(1) of the Act in that employees could reasonably interpret
it as curtailing their Section 7 rights. In University Medical
Center, 335 NLRB 1318, 1321 (2001), the allegedly offending
rule prohibited “insubordination . . . or other disrespectful con-
duct towards service integrators and coordinators and other
individuals.” The Board found that this rule violated the Act as
employees could reasonably believe that their protected rights
were prohibited by this rule. In its finding, the Board stated that
a problem with this rule was the word disrespectful: “Defining
due respect, in the context of union activity, seems inherently
subjective.”
Although I have found that paragraphs (b), (c), and (d) vio-
late the Act, counsel for the Respondent alleges that as the Re-
spondent rescinded these provisions prior to the hearing, there
should be no finding of a violation and that there is no need for
a remedy. While, at first glance, one would assume that the
Respondent’s rescission effectively withdrew the unlawful
KNAUX BMW 1765
provisions negating the violation, certain requirements of
Passavant Memorial Area Hospital, 237 NLRB 138 (1978),
were not met. In that case, the Board stated that to relieve itself
of liability for unlawful conduct by repudiating the conduct,
“such repudiation must be timely, unambiguous, specific in
nature to the coercive conduct, and free from proscribed illegal
conduct.” The Board further stated: “Such repudiation or disa-
vowal of coercive conduct should give assurances to employees
that in the future their employer will not interfere with the exer-
cise of their Section 7 rights.”5 While the Respondent notified
all of its employees of the rescission and did not commit any
other unfair labor practices, the Respondent merely told the
employees that the offending provisions were rescinded, with-
out a further explanation and without telling the employees that
in the future it would not interfere with their Section 7 rights. I
therefore find that Paragraphs (b), (c), and (d), although subse-
quently rescinded, violate Section 8(a)(1) of the Act.

5 It should be noted that in Claremont Resort, Inc., 344 NLRB 832
(2005), the Board while finding that a rule about “negative conversa-
tions” violated the Act, stated: “We do not necessarily endorse all the
elements of Passavant.”
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and 7 of the Act.
2. The provisions contained in Paragraphs (b), (c), and (d) of
its employees’ handbook from about August 23, 2003, to July
19, 2011, violate Section 8(a)(1) of the Act.
3. The Respondent did not further violate the Act as alleged
in the amended complaint.
THE REMEDY
Having found that Respondent’s rescission of the offending
paragraphs does not satisfy the Board’s requirements for rescis-
sion, I recommend that it be required to post the attached no-
tice, and to notify the salespersons electronically, that it has
rescinded these provisions of its employee handbook and that it
will not interfere with the employees’ Section 7 rights. Howev-
er, as all the unit employees were informed of the July 19, 2011
rescission, it is unnecessary to specifically order the Respond-
ent to, again, rescind these provisions.
[Recommended Order omitted from publication.]