With increasing NLRB scrutiny toward adverse action for employee social networking activities (see the September 2011 FEB), its General Counsel (who prosecutes charges for the NLRB) brought unfair labor practices charges against Karl Knauz Motors, Inc. after it terminated a Chicago-area BMW employee for his Facebook post in which he commented on two work-related events. First, the employee mocked the "Ultimate Driving Event" – at which the dealership served hot dogs and water – as cheap and conveying the wrong message to potential customers. The post followed discussion with, and voiced the concerns of, co-workers whose salaries were based on commissions and who had access to and commented on the post. Second, the employee posted photos of an accident caused by a 13-year-old driving an LR4 into a pond at an adjacent (employer-owned) car dealership and commented: "This is your car: This is your car on drugs." The NLRB administrative law judge ruled that the commentary on the Ultimate Driving Event was protected activity, but concluded the termination resulted from the posting of the accident photos and, therefore, was not wrongful. In recognizing no protection for the accident-related post, the judge observed it was done "apparently as a lark, without any discussion with any other employee . . ., and had no connection to any of the employees' terms and conditions of employment."
Also of interest, the administrative law judge concluded that several provisions in the employer's handbook – seemingly innocuous as they prohibited use of language injurious to the employer's image or reputation, unauthorized interviews, and communications with non-employees regarding personnel matters – violated the NLRA because they were overbroad with the potential to chill lawful, employee concerted action.