By Kenneth A. Skroumbelos, Esq. (email / link to bio)
On October 1, 2012, a decision issued by the National Labor Relations Board (NLRB), which is an agency of the United States Government charged with remedying unfair labor practices, upheld the termination of a BMW salesman for postings made to his Facebook page. In the case of Karl Knauz Motors, Inc., NLRB ALJ, No. 13-CA-46452, 9/28/11, administrative law judge Joel P. Biblowitz found that a BMW salesman engaged in unprotected activity when he posted disparaging comments and photographs regarding an accident which occurred at an employer owned neighboring Land Rover dealership on his Facebook page.
The accident which was the subject of the Facebook posting occurred at the neighboring Land Rover Dealership when a sales person permitted a thirteen year old son of a customer to sit in the driver seat of a running vehicle. The thirteen year old apparently stepped on the gas pedal and, after driving over his father’s foot, drove the vehicle into an adjacent pond throwing the passenger salesperson into the water.
The terminated BMW salesman who observed the accident at the Land Rover dealership posted to his Facebook page a photograph of the vehicle in the pond with the following comment:
This is what happens when a sales Person sitting it the front passenger seat (Former Sales Person, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything. The kid drives over his father’s foot and into the pond in all about 4 seconds and destroys a $50,000 truck. OOOPS!
Though there was also a concurrent sarcastic Facebook posting regarding the choice of refreshments served during an event surrounding the launch of the BMW 5 Series, which could arguably have been a protected activity since the choice of refreshments could have an effect on compensation, Judge Biblowitz found as fact that the Land Rover posting was the basis for termination.
Section 7. of the National Labor Relations Act (NLRA) provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….” When employees act together to complain about their work place, including complaints about management, pay, and benefits, those actions are protected concerted activities under the NLRA.
In upholding Judge Biblowitz’s decision, the NLRB found that the employee’s disparaging Facebook posting of the Land Rover accident was not a protected concerted activity under the NLRA because it was not a discussion involving the improvement of the terms and conditions of employment. Since the employee’s termination was the result of the disparaging Facebook posting regarding the accident at the Land Rover dealership and was unrelated to his position as a BMW salesman, the termination was not the result of interference with protected activity. In so holding, the NLRB found that the employer Karl Knauz Motors, Inc. did not violate federal labor law.
The information provided in this blog entry is not intended to serve as legal advice, and is not a substitute for consultation with an experienced employment attorney. Most situations are highly fact specific. Employers should consult with counsel before taking action in any area that could result in legal liability.