As another follow-up to our posts, NLRB OK’s Employee Bad-Mouthing on Social Media, Update: The NLRB Seesaws On Social Media Bad-Mouthing, NLRB Issues Guidance On Social Media Policies and Administrative Law Judge Recommends Employees Fired For Facebook Be Reinstated and Provided Loss of Pay, an Administrative Law Judge (“ALJ”) has made a recommendation on another social media case brought by the General Counsel of the National Labor Relations Board (“NLRB”) against a BMW dealership, Karl Knauz Motors, Inc. (“Knauz”), for firing a salesperson, Robert Becker, for Facebook postings.  The ALJ said that Knauz did not violate the National Labor Relations Act (“NLRA”) when it fired Becker for posting embarrassing photos and sarcastic comments about an auto accident that had occurred at an adjacent Land Rover dealership also owned by Knauz.  A mishap had occurred when a salesperson was showing a Land Rover to a customer and the vehicle crashed into a pond.  Becker took photos of the accident, which he later posted on Facebook with the comments, “this is your car; this is your car on drugs,” and “the kid drives over his father’s foot and into a pond in all of about 4 seconds and destroys a $50,000 truck.  OOPS!”

A few days earlier, Becker had taken photos at a sales event promoting the redesigned BMW 5 Series automobile.  Several other salespersons had complained that the humble event, featuring hot dogs, cookies and chips, would have a negative impact on their ability to earn commissions.   Becker posted photos of the food on Facebook with comments criticizing management for the inferior quality of the event.

The NLRB argued that this post and the latter post were protected activity relating to the terms and conditions of Becker’s employment.  The ALJ agreed that the post about the sales event was protected but that Becker was not terminated for this post.  Rather, the ALJ found that Becker was terminated for the post about the auto accident, which the ALJ said was not protected, “[i]t was posted solely by Becker, apparently as a lark without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment.”

The ALJ further said that several statements in Knauz’s  employee handbook pertaining to employee conduct – policies on courtesy, unauthorized interviews and outside inquiries concerning employees –  violated the law.  However, since the issuance of the complaint, Knauz had rescinded these policies.  The ALJ ordered Knauz to notify its employees of the rescinded policies and make a statement that it would not interfere with their rights under the NLRA.