NLRB Issues Favorable Social Media Ruling . . . Well, Mostly Favorable

No this is not a typo, and no, you are not dreaming.  In a decision made public on Monday, the NLRB upheld an administrative law judge's finding that a car lot owner did not violate the NLRA when it terminated one its sales people for making "disloyal" social media posts.  This decision is the latest entry in the ongoing NLRB social media saga, and signifies some long awaited good news for employers.  However, employers should not start popping the champagne bottles quite yet.  The decision in Karl Knauz Motors, Inc was based in large part on the specific facts of that case.  And while the NLRB found that the employer did not violate the NLRA for terminating the employee, it did find that several of the employer's work rules were unlawful.  If nothing else, the Karl Knauz decision serves as a good reminder to employers that there is no bright line rule when it comes to employee social media use.

Background

Richard Becker worked as a luxury car salesman for Karl Knauz Motors.  During a sales event, Becker made several posts to his personal Facebook account that were critical of the event.  In addition, Becker took and uploaded a photo to his Facebook account of one of his employer's cars which had been accidentally driven into a nearby pond the day before the event.   After learning about these posts, the employer - who was obviously embarrassed - terminated Becker's employment for "being disloyal." 

The NLRB alleged that Becker's termination violated the NLRA because Becker's Facebook posts constituted protected concerted activity.  The NLRB took this position because "other salesmen shared the terminated employee's negative opinion of the sales event", "this opinion had been shared with management during a staff meeting following the event" and "because the salesman worked purely on commission, a sales event they found 'subpar' constituted a 'term and condition' of their employment, because the event could negatively affect their sales/commissions."

The employer countered by arguing that the sole basis for termination was Becker's embarrassing "car in the pond" picture, not his critical remarks about the sales event.  Thus, the employer contended that the car in the pond photo - which was not related to the sales event  - did not constitute protected concerted activity.

The Decision

The NLRB upheld the administrative law judge's determination that the employer did not violate the NLRA for terminating Becker's employment.  Specifically, the Board agreed with the ALJ's finding that the car in the pond photo did not constitute protected activity; and since that photo was the sole basis for the employer's termination decision, there was no violation of the NLRA. 

Handbook Violations

As part of the NLRB's investigation it requested and received copies of the employer's employee handbook.  In reviewing the handbook, the NLRB found that the employer's policies and work rules concerning "professional courtesy", a rule prohibiting employees from participating in "any unauthorized interviews" or responding to "any outside inquiries regarding other employees" violated the NLRA.