NLRB Backs an Employer in Its First Facebook-Firing Decision

[Teamster Jeff]

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

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 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.”

A BMW salesman was fired for posting pics on Facebook of an accident where a salesman let a customers kid sit behind the wheel of a car after a test drive, and the kid hit the gas and drove into a pond. The salesman was fired for posting a pic with the word "oops".
This is a big decision. Be careful what you post about your employer on Facebook or anywhere for that matter.

[Omaha Steve]

1. The case was not a total loss for the employees as a whole

If you read to the last few paragraphs, you will find:

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.
. . .
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.

That is not a trivial victory. Employees who looked at the rules might be afraid to discuss working conditions with one another and especially be afraid to complain.

It's hard to know from the description, but the employee did seem to make a complaint about employer actions that would affect the sales staff pay and could be an NLBA violation.

[Teamster Jeff]

2. Yes. Good point

No doubt HR people will be making changes to Employee Handbooks. The main point that I took from the decision is that unless you are posting on behalf of a group to improve working conditions and terms of employment you are unprotected by the National Labor Relations Act.