On September 28, 2011, a National Labor Relations Board (“NLRB”) administrative law judge (ALJ) found that Knauz BMW lawfully terminated the employment of Robert Becker, a salesperson, after he posted pictures and comments on his Facebook page about two different workplace incidents -- an automobile accident and a dealership sales event.  The judge also found that several Employee Handbook policies, unrelated to social media postings, contained overly broad language.  Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, Case No. 13-CA-46452 (Sept. 28, 2011).

The first incident Becker posted on his Facebook page concerned an accident at a Land Rover dealership also owned by Knauz on an adjacent property.  Becker posted pictures of the accident, as well as comments such as “This is your car:  This is your car on drugs.”  The same day, Becker also posted pictures of a dealership sales event.  Becker and other salespersons disagreed with the General Sales Manager’s choice of food and beverages for the event, including hot dogs and chips.  Becker posted pictures of the other salespersons with the food and beverages, as well as several comments on his Facebook page, such as:

The small 8 oz bag of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch…but to top it all off…the Hot Dog Cart.  Where our clients could attain a over cooked wiener and a stale bunn [sic]…

Although both posts were made on the same day, managers of the dealership testified that Becker’s employment was terminated because “[he] had satirized a very serious car accident that occurred at our Land Rover facility on his Facebook page by posting pictures of the accident accompanied by rude and sarcastic remarks about the incident.” 

The ALJ held that the termination for the posting of the accident was lawful because the posting did not amount to protected or concerted activity under the National Labor Relations Act (“NLRA”).  Rather, Becker posted it “apparently as a lark, without any discussion with any other employee of the Respondent and [it] had no connection to any of the employees’ terms and conditions of employment.”

On the other hand, the ALJ opined that had the dealership terminated Becker’s employment for the Facebook postings regarding the sales event, the termination would have been unlawful.  According to the ALJ, the sales event posting constituted protected concerted activity that could have affected Becker’s compensation.  Although unlikely, a customer may have been “turned off” by the food offered at the event and may not have purchased a car or may have given the salesperson a lower rating.  Further, Becker and another salesperson both spoke up during a meeting about what they considered to be the inadequacies of the food being offered at the event and salespersons also discussed the subject after the meeting.  Although only Becker complained about it on his Facebook page, the ALJ equated Becker’s posting to an individual employee bringing a group complaint to the attention of management, which is protected concerted activity.  The ALJ concluded, however, that Becker had been terminated for the first, unprotected posting and not the second, protected posting.

The ALJ then considered charges regarding certain policies in the dealership’s Employee Handbook.  The ALJ upheld the dealership’s “Bad Attitude” policy, which mandated that employees “display a positive attitude toward their job” because it protected the relationship between the dealership and its customers.  The ALJ held, however, that a policy entitled “Courtesy,” which prohibited employees from being “disrespectful,” was overly broad, as “[d]efining due respect, in the context of union activity, seems inherently subjective.”  The ALJ also held that two other policies entitled “Unauthorized Interviews,” and “Outside Inquiries Concerning Employees” were also overly broad as employees “would not be able to discuss their working conditions with union representatives, lawyers or Board agents.” 

Although the dealership previously notified its employees that the Employee Handbook policies at issue were rescinded and the dealership did not commit any other unfair labor practices, the ALJ nonetheless held the rescission to be insufficient.  The ALJ faulted the employer for not providing further explanation about the rescission to its employees and found the rescission inadequate to inform employees that the dealership would not interfere with their rights.  The dealership was ordered to post a notice informing employees of their rights to form, join or assist a union, among other things, and that the dealership would not interfere with employees’ rights.

Although the ALJ upheld the employment termination, this case provides examples of what may be considered to be protected, concerted activity under Section 7 of the NLRA, in connection not only with social media policies and practices, but Employee Handbook policies in general.