NLRB Rules Facebook Firing is Legal But Still Strikes Down Employer Policy

Eric Paltell
Eric Paltell

On September 28, 2012, the National Labor Relations Board (“NLRB”) issued the latest decision in its determined effort to define the permissible scope of social media rules in the workplace.  In Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012), the Board ruled that a BMW dealership did  not violate the National Labor Relations Act (“NLRA”) when it fired a car salesman for photos and comments posted on his Facebook page.  However, the Board went on to find that the dealership’s “Courtesy” rule was illegal because employees might interpret it to prohibit any statements of protest or criticism. 

In Karl Knauz Motors, a disgruntled salesman named Robert Becker posted photos and snarky comments about the hot dogs, potato chips, and bottled water the dealership gave away at a promotion for a new BMW model.  For example, he posted “No, that’s not champagne or wine, it’s 8 oz. water … Fadwa is seen coveting the rare vintages of water that were available for our guests.”  However, he did not stop his Facebook foray there – he went on to post photos of an embarrassing accident at an adjacent Land Rover dealership (owned by the same employer).  The accident occurred when a salesperson allowed a customer’s 13 year old son to sit behind the wheel following a test drive.  The boy proceeded to hit the gas, run over his father’s foot, and drive the Land Rover into a pond (taking the salesperson with him into the water). Becker posted sarcastic comments beneath a photo of the vehicle submerged in the pond, including “OOOPS!” The dealership fired Becker after it learned of the Facebook postings. 

The Board ruled that the termination was legal because Becker was fired solely for the posting about the Land Rover accident.  The Board held that this was posted by the employee acting alone as a “lark,” and was not intended to protest or advance any terms and conditions of employment. Because the postings about the hot dogs and water were not the reason for the termination, the Board did not weigh in on whether those postings were protected by the NLRA (however, in his August 18, 2011 Report, the Acting General Counsel opined that the posting criticizing the sales event was protected by the Act). 

Notwithstanding the legality of the termination, the Board struck down the dealerships’ “Courtesy” rule. That rule provided as follows: 

Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite, and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” 

The Board found this rule to be unlawful because “employees would reasonably construe its broad prohibition against ‘disrespectful conduct’ and ‘language which injures the image or reputation of the Dealership’ as applying to their objections to working conditions and efforts to seek the support of coworkers in improving them.  As a result, the rule “chilled” employee Section 7 rights, and therefore violates Section 8(a)(1) of the NLRA. 

Employers can take little solace in the fact that the Board upheld Becker’s termination. This decision, like the Board’s Costco decision a few weeks earlier, sends a clear message – the NLRB is determined to expand its reach and make itself relevant by placing increasingly tight shackles on the scope of employer policies regulating employee speech.

By Eric Paltell

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