Board Splits 2-1 on Handbook Revisions; Majority Finds NLRA Violations Need Remedy

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By Lawrence E. Dubé

May 1 — An auto dealer that maintained unlawful policies on social media use and employee dress standards could not avoid unfair labor practice findings and a remedial order simply by replacing its rules with lawful provisions, a divided National Labor Relations Board held April 30.

NLRB Chairman Mark Gaston Pearce and Member Kent Y. Hirozawa said Boch Imports Inc. improperly required employees posting online comments about the employer to identify themselves, and the company failed to justify a dress code that prohibited the wearing of union insignia. Boch's employee handbook language interfered with employee rights in violation of Section 8(a)(1) of the National Labor Relations Act, the board found.

Pearce and Hirozawa ordered the employer to post a notice assuring employees it would not interfere with their rights in the future. They found a remedial order is necessary because Boch never repudiated its unlawful policies or explained why they were replaced.

Dissenting, Member Harry I. Johnson said Boch worked with an NLRB regional office on revising its employment policies. The board should encourage such efforts rather than “effectively punish them,” he wrote.

Social Media, Dress Rules Illegal

According to the decision, Boch originally maintained a 2010 employee handbook containing a social media policy that required employees to identify themselves in any online comments they posted about the company's business or policy issues. The policy also prohibited employees from using company logos in any manner.

The rule was overly broad and unlawful, the board said, “because employees would reasonably construe it to cover comments about their terms and conditions of employment, and the self-identification requirement reasonably would interfere with their protected activity in various social media outlets.”

Boch's 2010 dress code, the board found, prohibited employees who had any contact with the public from wearing “pins, insignias, or other message clothing.” The board held the policy could not be justified as a defense of the employer's public image, and they said Boch failed to back up an assertion that pins were likely to be a safety hazard by falling onto or into cars worked on by service technicians.

Majority Finds Remedial Order Necessary

Pearce and Hirozawa acknowledged the board held in Passavant Area Memorial Hospital, 237 N.L.R.B. 138, 98 LRRM 1492 (1978), an employer can repudiate NLRA violations, but they said the precedent did not apply to Boch.

The auto dealer replaced its unlawful policies in 2013 with lawful provisions, but the board said the employer made the changes without notifying employees about its unfair labor practices or providing assurances against future interference with workers' NLRA rights.

The board ordered Boch to post a notice to employees assuring them the company would not maintain or enforce numerous overbroad provisions that had appeared in the 2010 handbook.

Ruling Draws Board Member Dissent

Johnson disagreed with the majority on the employee dress code. “Automobiles are expensive,” he wrote, and Boch presented evidence that it incurs significant losses each year from employees accidentally damaging vehicles.

Finding “it is reasonably foreseeable that sharp objects could scratch, rip, fall into the internal compartments of, or otherwise damages the vehicles,” Johnson said the employer established the existence of special circumstances justifying its insignia ban.

The dissenting board member also wrote that there was no allegation that Boch's ambiguous 2010 policies were ever applied to restrict employees' NLRA-protected activities.

Citing the employer's “line-by-line revision of its handbook in cooperation with the Region and its approval,” Johnson said the company “effectively repudiated” any unfair labor practice.

“In my view,” Johnson said, “the Passavant test need not and should not be strictly applied here.”

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at