An employee handbook rule prohibiting disrespectful behavior and the use of “profanity or any other language which injures the image or reputation of the [company]” was unlawful and the employer is ordered to cease and desist from maintaining the rule, the National Labor Relations Board rules in a 2-1 decision.

The employer, a BMW car dealership, stated in the handbook: “(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 Board majority says the rule was unlawful because employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing protected activities, such as employees’ protected statements—whether to coworkers, supervisors, managers, or third parties who deal with the employer. The decision cites a previous holding that a Costco employee handbook rule prohibiting statements posted electronically that “damage the Company . . . or damage any person’s reputation” was unlawful. The Board says an employee reading this rule would reasonably assume that management would regard statements of protest or criticism as “disrespectful” or “injur[ious] [to] the image or reputation of the Dealership.”

The dissenting member says that the Board majority took the rule out of context and that the first section of the rule, encouraging “courteous, polite, and friendly” behavior, clearly establishes that the rule is nothing more than a “commonsense behavioral guideline for employees.” The Board majority says that “[i]f the rule only contained the first section, we might agree,” but “[b]y going further than just providing the positive, aspirational 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.” Karl Knauz Motors Inc. and Robert Becker