Part C – Case Analysis (62% of the test)
In the case below, an employee files a Section 8(a)1 complaint with the NLRB against his employer for firing him. The employer asserts that it has terminated the employee lawfully. After reading the facts of the case, explain what the decision should be (who should win). Also explain any remedies that are needed. Be sure to identify the legal concepts involved and use details from the case to show evidence in support of your position. Please limit your analysis to 2-3 double-spaced pages.
Tip – Consider:
1) What is the employee’s argument? Why does he think he was fired? In his view, which specific provision in the NLRA was broken? What does the provision require? Using the NLRA requirements, discuss whether the facts in this case support the employee’s position that his termination constituted an unlawful labor practice.
2) What is the employer’s argument? Why did it fire the employee? Does the NLRA prohibit that reason? Using the NLRA requirements, discuss whether the facts in this case support the employer’s decision to terminate the employee.
3) As the NLRB judge, who do you think is right? Which side has the right reason, legal framework, and details (evidence) to support its interpretation of the law?
4) If a violation occurred, what needs to be done to correct it? (This is the remedy.)
Car Dealer’s Case
This company has two dealerships in Springfield, Illinois; one sells trucks, and the other sells luxury cars. Jack, the employee who was fired, began working at the truck dealership in 2002. He changed to the luxury dealership in 2008 where he worked until he was fired in 2014.
There are three contributing elements to the pay of the 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 vehicle. 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 questionnaires sent to customers who purchased a car.
The 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 event pages are entitled: “(luxury) 2014 5 Series Soiree.” On the first page, Jack posted: “I was happy to see that (dealer) went ‘All Out’ for the most important launch of a new (luxury car) in years . . . the new 5 series. A car that will generate tens in millions of dollars in revenues for the dealer 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 an overcooked wiener and a stale bun.” Underneath were comments by Jack’s relatives and friends, followed by Jack’s responses. On the following page there is a picture of Dutch with his arm around the woman serving the hot dogs, and the following page has a picture of Dutch with a hot dog. Page 4 shows the snack table with cookies and fruit. Page 5 shows one of the sales people holding bottles of water, with a comment posted by Jack: “No, that’s not champagne or wine, it’s 8 oz. water. Pop or soda would be out of the question.” In this photo, a salesperson is seen coveting the rare vintages of water that were available for our guests. Page 6 shows the sign depicting the new luxury 5 Series car with Jack’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 Dutch holding a hot dog.
The pictures of the truck accident, as well as Jack’s comments, on the Facebook page were: 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. The salesperson with a blanket around her is sitting next to a woman, and a young boy is holding his head. Jack 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 company 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, Jack 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?” Below, there were comments from two of the company’s employees. On a separate Facebook page, one of a service advisor employed by the company, there was Jack’s picture of the car in the pond with the service advisor’s own comment: “Finally, some action at our truck store.”
Sequence of Events
Unless otherwise noted, the parties essentially do not dispute these facts. Unless otherwise indicated, all dates referred to here are for 2014.
Sometime between June 5 and June 9
All the sales people met in Sam’s office to discuss the upcoming event. Sam told them about the event, the incentives being offered, and what was expected of them. Sam testified that someone asked about the food but he doesn’t remember what was said. He did say the sales people rolled their eyes “in amazement.” Jack testified this scenario: He told Sam, “I can’t believe we’re not doing more for this event.” Greg 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.” Sam responded: “This is not a food event.” After the meeting the sales people spoke more about it and Greg told Jack that at a competing luxury car’s dealership they served hors d’oeuvres with servers. Greg also said, “We’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, Jack testified: Everything in life is perception. X [ 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 absolutely 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, especially 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.
The car promotion event occurred at the luxury dealer. The car being introduced was a new model in their “bread and butter” line. The event was significant enough for the car manufacturers to attend and help sell to the customer. Jack 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.
At the company’s truck dealership, an accident occurred. A salesperson was showing a customer a truck and allowed the customer’s 13-year-old son to sit in the driver’s seat of it while the sales person was in the passenger seat, apparently, with the door open. The customer’s son must have stepped on the gas pedal; the truck drove down a small embankment, drove over the foot of the customer into an adjacent pond, and the salesperson was thrown into the water (but was unharmed, otherwise). Jack was told of the truck incident and could see it from the facility. He got his camera and took pictures of the truck in the pond.
Jack posted comments and pictures of the luxury event of June 9 as well as the truck accident of June 14 on his Facebook page.
The company representatives had learned of, and had been given copies of, Jack’s Facebook postings for both the event and the accident. Sam asked Jack to remove the postings, which he did.
At Harry’s request, Jack met with him, Pete, and Sam in a conference room at the dealership to discuss the postings.
Harry tossed copies of the Facebook pages at him and said, “What were you thinking?”
Jack responded that it was his Facebook page and his friends: “It’s none of your business.”
Harry responded, “That’s what you’re going to claim?”
Jack affirmed, “That’s exactly what I’m going to claim.”
Harry again asked what he was thinking and Jack said that he wasn’t thinking anything.
Harry said that they received calls from two other dealers and that he thoroughly embarrassed all management and “all of your coworkers and everybody that works at the dealership.” Pete then said, “You know, Jack, the photos at the truck dealership are one thing, but the photos at the luxury dealer, that’s a whole different ball game.” Jack responded that he understood. Harry 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, Jack told Sam that there was no maliciousness on his part and Sam told him to let things settle down, and he left.
After he got home, Jack called Pete and apologized for what had occurred; Pete testified that he does not recall receiving any apology from Jack. Jack later called Dick and apologized to him as well. Dick told him that he should have apologized during the meeting with Harry, Pete, and Sam.
Notes of this June 16 meeting, taken by Pete, state that the meeting was to discuss: . . . several negative articles on his Facebook directly pertaining to situations which happened at the dealership. We were alerted to this action by receiving calls from other truck dealers who saw pictures/comments (negative) on the internet. Harry showed Jack copies of the postings and posed the question what was Jack thinking to do such a . . . thing to the company. (One posting was regarding the accident at truck dealer when a truck was driven into the lake and the second was surrounding our new 5 Series luxury car event.) Harry testified that at the June 16 meeting he handed Jack the postings and asked why he would do that and Jack said that it was his Facebook and he could do what he wanted. He ended the meeting by telling Jack to go home and that they would review this issue and get back to him.
A meeting of Dick, Bill, Harry, Sam, Pete, and Bob. Harry later testified that he saw both postings, but: “I will tell you that the thing that upset me more than anything else was the truck issues. The luxury car issue, to me, was somewhat comical, if you will . . . if it had been that, that would have been it. But, no, it was the truck issue.” “It was…making light of an extremely serious situation…somebody was injured and…doing that would just not be accepted.” Harry said the meeting “centered” on the posting of the accident, “it was 90% of the discussion. The other one was mentioned because we had that; but, that’s not why we made a decision to terminate Jack.”
Sam testified that during the meeting there was discussion about the June 9 event and the accident, but: “The basis of the decision to terminate was the posting of the accident at the truck store.”
Jack was terminated. Jack said Harry told him, “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.” Jack said he told Harry that he understood and that was the end of the conversation. The memo put in Jack’s personnel file, dated June 22, from Harry, states:
I told Jack [of the June 21 meeting] . . . that it was a unanimous decision to terminate his employment because he had made negative comments about the company in a public forum and had made light on the internet of a very serious incident (truck 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.
The unfair labor practice charge was filed.
July 19, 2015
Bill and Harry sent a memo to all employees stating:
Because our employee handbook has not been updated since 2007, we have been in the process of updating and amending it 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 area in which a significant change is being made. If you have issues relating to these areas prior to the issuance of the new handbook, please see Harry.
–Courtesy — This policy is being rescinded effective immediately.
While there may be some additional changes and/or additions, the foregoing lets you know, in general terms, where a key change will be. Again, please let me know if you have any questions or concerns.
July 21, 2015
At the Administrative Law Judge’s hearing, the complaint was amended to include: Since at least August 28, 2007, the company has maintained the Courtesy rule in its employee handbook that contains language that makes it unlawful. The company defended that it had already taken care of that issue by rescinding the policy and notifying the employees.
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