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Mon Oct 1, 2012, 06:07 PM

NLRB finds Facebook posting that caused salesman’s discharge at Chicago-area BMW dealership was not

Source: NLRB

The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected.

The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired from Knauz BMW in Lake Bluff, IL.

The Board agreed with Administrative Law Judge Joel P. Biblowitz, who found after a trial that the salesman was fired solely for the photos he posted of a Land Rover that was accidently driven over a wall and into a pond at the adjacent dealership after a test drive. Both dealerships are owned by the same employer.

In a charge filed with the NLRB, the salesman maintained that he was principally fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. “No, that’s not champagne or wine, it’s 8 oz. water,” the salesman commented under the photos. Following an investigation,the regional office issued a complaint. Judge Biblowitz found that this activity might have been protected under the National Labor Relations Act because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.

The Land Rover accident was another matter. A salesperson there had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive, and the boy apparently hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. The salesman posted photos of the accident with sarcastic commentary, including: “OOPS”.

The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.

As Judge Biblowitz wrote, “It was posted solely by [the employee], 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. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.

However, the three-member panel differed in its opinions of a “Courtesy” rule maintained by the employer regarding employee communications. Chairman Mark Gaston Pearce and Member Sharon Block found the language of the rule to be unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the National Labor Relations Act.

Dissenting, Member Brian E. Hayes found that the employer’s rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

The Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks. The decision, dated Sept. 28 but made public today, was the Board’s first involving a discharge for Facebook postings; other such cases are pending before the Board.

Printer-friendly version: http://www.nlrb.gov/print/4758

FULL title: NLRB finds Facebook posting that caused salesman’s discharge at Chicago-area BMW dealership was not protected

Read more: http://www.nlrb.gov/news/nlrb-finds-facebook-posting-caused-salesman%E2%80%99s-discharge-chicago-area-bmw-dealership-was-not-pro

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October 01, 2012
Office of Public Affairs

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Reply NLRB finds Facebook posting that caused salesman’s discharge at Chicago-area BMW dealership was not (Original post)
Omaha Steve Oct 2012 OP
loli phabay Oct 2012 #1
DaveJ Oct 2012 #2
loli phabay Oct 2012 #3

Response to Omaha Steve (Original post)

Mon Oct 1, 2012, 06:49 PM

1. moral of the story facebook has consequences


Im shocked the stuff people post online without thinking about how it will effect tbeir employment and relationships. The real idiots are the people in the service industry putting stuff up there about how they are putting bugs and stuff in customers food or the guy standing on the lettuce thing i saw the other day.

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Response to loli phabay (Reply #1)

Mon Oct 1, 2012, 07:29 PM

2. I looked up the lettuce guy and that's disgusting

I think there's a big difference between posting foolishly and being a vile person. In either case, I tend to support free speech even if it's not legally protected. I know the legal and comon sense rationale about posting stuff but I have a fantasy world in my mind where people can say and write anything they want. Maybe in another life...

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Response to DaveJ (Reply #2)

Mon Oct 1, 2012, 07:39 PM

3. yup say and write what you want buy there has to the knowledge that people might


Not like it. Dumbest people are the ones who bad mouth were their paycheck comes from or do stuff that reflects badly on their employer.

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