On September 28, 2012, the National Labor Relations Board (“NLRB”) issued its decision in Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012).  The NLRB affirmed an Administrative Law Judge’s findings that a car dealership did not violate the National Labor Relations Act (“Act”) after it terminated a salesperson for his posts on Facebook.   In making its decision, however, the NLRB left undecided the arguably larger question of distinguishing social media posts that the Act protects from those it does not.  Unfortunately, that question is now left for employers who must carefully evaluate an employee’s social media activity before taking disciplinary action.

Last September, an Administrative Law Judge upheld the termination of car salesman Robert Becker after he posted pictures and captions on his Facebook page mocking a car accident that occurred at his employer’s Land Rover dealership.   What made the decision interesting, however, is the fact that Becker alleged his termination was the result of another set of Facebook posts that had nothing to do with the Land Rover accident.

In one set of Facebook posts, Becker ridiculed his employer’s launch event for a new BMW automobile.  Specifically, Becker posted pictures and comments mocking the dealership’s decision to have a hot dog cart and serve cookies and chips instead of something more formal.  In the second set of Facebook posts, Becker posted pictures and made flippant remarks about a car accident that had occurred at his employer’s Land Rover dealership across the street.  Apparently, a salesperson at the dealership allowed the child of customer to get behind the wheel of a Land Rover.  The child subsequently engaged the vehicle and crashed it into a pond.     Becker posted the comments and pictures of both events at the same time.  Two days later, management called him into a meeting about the Facebook posts and subsequently terminated his employment.

Becker argued that he was terminated for the posts about the launch event, and further argued that those posts were protected under the NLRA as they related to the terms and conditions of his employment. Becker testified before the judge that he believed the food served at the launch event could have negatively affected his commissions.  In contrast, the dealership asserted that it terminated Becker primarily for the Land Rover posts, and making light of a serious situation.

The judge agreed with Becker that his posts about the food served at the launch event were protected activities under the Act.  Specifically, the judge found the food offerings at the event could have had an adverse effect on his compensation or the ratings given to him by the dealership’s clientele.  The judge admitted this was unlikely, but nevertheless, found that the food decisions could affect Becker’s employment relationship.  As a result, the judge found Becker’s posts about the food were protected, and as such, Becker could not be terminated for those posts.

The judge also found, however, that the Act did not protect the posts about the Land Rover accident, as they did not relate to the terms or conditions of Becker’s employment.   Moreover, the judge found the testimony of the dealership’s management to be more credible, and because the dealership asserted that it terminated Becker solely for the Land Rover posts, the decision to terminate Becker for that reason did not violate the Act.  Therefore, the judge upheld the termination.

In affirming the judge’s decision, the NLRB found it unnecessary to address whether the posts about the food at the sales event were protected.  In doing so, the Board left unanswered the question regarding the types of activities relate to the terms and conditions of employment, and as a result, are protected by the Act.

What this means to you

Becker’s posts mocked the dealership’s decision about the food served at an event.  Unlike an employee who complains about their pay or working conditions, Becker’s activity was not expressly related to the terms or conditions of his employment.  Accordingly, it will be vital for employers going forward to carefully consider whether an employee’s social media activities might relate to the terms and conditions of his or her employment and how the basis for the disciplinary decision is articulated when the conduct at issue includes activity that is and is not protected by the Act.