In previous briefings, we have summarized various guidance memoranda issued by the National Labor Relations Board’s Office of the General Counsel (“NLRB” or “Board”) concerning social media issues. Those prior briefings are available here. Now, earlier this week, the NLRB released its first opinion involving an employee who was terminated over a Facebook posting. See Karl Knauz Motors, Inc. d/b/a Knauz BMW, 358 NLRB No. 154. In Karl Knauz Motors, the Board adopted its administrative law judge’s decision that an employer did not violate the National Labor Relations Act (“NLRA”) by firing an employee over a social media posting because the employee’s posting was not protected concerted activity.
The case arose when sales representative Robert Becker, who worked for Knauz BMW, was terminated for posting a picture on Facebook of an incident that took place at a Knauz-owned Land Rover dealership. The Land Rover incident involved a customer’s child, who was permitted to sit in the driver’s seat of a vehicle and proceeded to drive it into a pond. Becker posted pictures of the vehicle along with the caption: “This is your car. This is your car on drugs.”
The administrative law judge found that the posting was unprotected conduct because it was unconnected with any terms and conditions of employment. Nor did the posting implicate any concerted group action by Knauz BMW employees.
Becker argued that he was terminated for negative Facebook comments he had posted about a Knauz BMW marketing event. To celebrate the release of a redesigned BMW 5 series car, Knauz held a marketing event where cookies, chips, and hot dogs were served. In Facebook postings and conversations with co-workers, Becker derided the food selection as inconsistent with the dealership’s luxury car brand.
While the administrative law judge found that Becker’s comments about the marketing event qualified as protected concerted activity, he also found that Knauz BMW terminated Becker solely for the posting about the Land Rover incident. The NLRB affirmed this latter finding and thus found it unnecessary to rule on whether the marketing event comments qualified as protected activity.
This case marks the NLRB’s second foray into social media issues. Winston & Strawn’s briefing on the Board’s first social media decision is available here.