A National Labor Relations Board (“NLRB”) administrative law judge upheld the firing of a car salesman for posting embarrassing photographs and caustic comments about an auto accident on his Facebook account. The case, Karl Knauz Motors, Inc., NLRB ALJ, No. 13-CA-46452, 9/28/11, involved an unfair labor practice complaint against Karl Knauz Motors, which operates a BMW and Land Rover dealership.

The complaint concerned two incidents that took place in June 2010. In the first incident, the salesman posted photographs on his Facebook account ridiculing management at the BMW dealership where he worked for its decision to offer hot dogs, bags of chips, and discount cookies as the food selection at a prestigious sales event to introduce a redesigned BMW 5 Series automobile, which was described as the dealership’s “bread and butter” product.

In the second incident, the salesman posted pictures of an accident that occurred at the adjacent Land Rover dealership which was also owned by the defendant employer. The accident was caused by a 13-year-old boy who accidentally pressed the gas pedal and drove a truck into a pond, causing a saleswoman who was sitting in the front passenger seat to be thrown from the vehicle. The salesman posted a series of caustic comments along with photographs of the accident on Facebook, including “this is your car; this is your car on drugs,” and “the kid drives over his father’s foot and into the pond in all of about 4 seconds and destroys a $50,000 truck. OOOPS!” 

The dealership learned of the salesman’s Facebook postings relating to both events and fired him a week later.

In reviewing the termination, the administrative law judge determined that the salesman’s comments regarding the marketing event to introduce the redesign of the BMW 5 Series constituted protected concerted activity under the National Labor Relations Act because the marketing event could have had an effect upon his compensation due to his commission structure. However, the judge found that the salesman’s conduct in posting photographs and comments about the accident at the Land Rover dealership was not protected conduct because it had no connection to an employees’ terms and conditions of employment. Therefore, because the salesman’s termination arose from his unprotected conduct in posting comments and photographs on Facebook about the accident, the judge found that the dealership did not violate federal labor law in firing the salesman for that Facebook posting.