NLRB Finds Termination of a BMW Employee Lawful Based Upon a Facebook Posting

In Karl Knauz Motors, Inc. d/b/a/ Knauz BMW and Robert Becker, case number 13-CA-046452, the National Labor Relations Board (“NLRB”) adopted Administrative Law Judge Joel P. Biblowitz’s findings that BMW salesman, Robert Becker, was lawfully terminated “solely because of his unprotected Facebook postings about an accident at a Land Rover dealership” owned by Becker’s employer. The Board also adopted the judge’s finding that a provision in the employee handbook did violate Section 8(a)(1) of the National Labor Relationships Act (the “Act”) because it could chill an employee’s exercise of his or her rights under the Act.

On June 14, 2011, Becker posted photos and comments about a BMW Ultimate Driving Event and an accident that occurred at an adjacent Land Rover facility. Becker’s Facebook posts involved several pictures about the food and drinks that were served at the BMW event and showed pictures of a Land Rover that had been driven into a pond after a customer’s 13-year-old son, who was sitting in the driver’s seat, inadvertently stepped on the gas.

After putting these posts up on Facebook, Becker was terminated from employment with the BMW dealership and thereafter brought suit against Karl Knauz Motors, Inc. d/b/a/ Knauz BMW (“Knauz”) claiming that his termination and certain provisions of the Knauz’s Employee Handbook violated Section 8(a)(1) of the Act.

In reviewing Becker’s Facebook postings, Administrative Law Judge Biblowitz determined that the posts about the Land Rover (a) were neither protected nor concerted activities subject to protection under the Act and (b) were the basis for Becker’s termination. As to the postings about the BMW Event, Judge Biblowitz found that Becker’s postings about such things as having a hot dog cart at the BMW event involved protected concerted activities because it could have an effect on Becker’s compensation, and the tone of the Facebook comments never rose “to the level of disparagement necessary to deprive otherwise protected activities of the protection of the Act.” However, the Board found it “unnecessary [and] pass[ed] on whether Becker’s Facebook posts concerning the marketing event . . . were protected” since Becker was lawfully discharged solely based on the Land Rover Facebook postings.

Importantly, this decision is now the second NLRB ruling on social media in the last month, which will surely continue to develop.