[author: James H. Kizziar, Jr.]

On September 28, 2012, the National Labor Relations Board (“NLRB”) issued its first decision involving an employee fired because of a Facebook post.  In this decision, the NLRB sided with the employer and held that the employee’s conduct was not protected under the National Labor Relations Act (“NLRA”)[1].

Robert Becker was a salesman at a BMW dealership.  On June 9, 2010, the dealership held a significant promotion event to introduce a new BMW automobile to customers (the “Event”).  Several days before the Event, the sales staff met with the sales manager to plan the activities.  When the sales manager informed the sales staff that the food to be served at the Event would include a hot dog cart, several members of the staff rolled their eyes and expressed disappointment that the high profile Event for a luxury car promotion deserved better quality food.  After the meeting, the sales staff spoke about the Event and expressed to one another their concerns that the food choice would reflect poorly on the dealership’s image and therefore affect their sales commissions.  On the day of the Event, Becker took photos of the mugging sales staff holding hot dogs and chips and mentioned that he was going to post the pictures on his Facebook page, which he did on June 14, along with some lighthearted comments.

Becker was also at the BMW dealership when an accident occurred at the Land Rover dealership next door (also owned by the owner of the BMW dealership). A salesperson showing a Land Rover to a customer allowed the customer’s 13-year old son to sit in the driver’s seat. The customer’s son stepped on the gas pedal and the vehicle rolled across the customer’s foot, over a curb, down the embankment, and into an adjacent pond, throwing the salesperson into the water.  Becker posted pictures on his Facebook page of the Land Rover in the pond, along with comments such as “this is your car on drugs” and “Is mom gonna give the 13-year old a time out?”  Some of Becker’s co-workers responded to his posts with similar blithe comments.

The next day, Becker complied with his supervisor’s request to remove all postings relating to the Event and the Land Rover accident.  The supervisors informed Becker that he had embarrassed management and co-workers with the postings and, by making light of a dangerous car accident on the premises, had damaged the company and the individuals involved.  Becker was discharged from employment for the postings regarding the accident at the Land Rover dealership.

Becker filed an unfair labor practice charge with the NLRB, claiming that his postings were “protected concerted activity” and that his discharge interfered with employees’ mutual activities in violation of Section 8(a)(1) of the NLRA.  After a hearing before an administrative law judge (“ALJ”), the NLRB affirmed that Becker had been terminated solely because of his postings about the Land Rover accident.  The NLRB found that the postings were unprotected under the NLRA because they were posted without any discussion with other employees and had no relationship to terms and circumstances of Becker’s or his BMW co-workers’ employment.

The NLRB also found that Becker’s sarcastic postings relating to the food served at the Event was the lone act of a single employee.  The NLRB has previously held that acting alone is concerted if it stems from or logically grows out of prior concerted employee activity.  Since the BMW employees expressed concern about the planned food at the pre-Event meeting, and later discussed the issue after the meeting, the ALJ found Becker’s Facebook postings about the food issue and its potential effect on commissions was concerted activity under the NLRA.  However, since Becker’s discharge was based solely on the Land Rover postings, the NLRB did not address whether the “hot dog” postings were NLRA-protected activity.

The NLRB’s decision establishes that it will not fault employers for taking adverse actions against employees based on social network postings that are irrelevant to their working conditions.  However, in the broader picture, the NLRB has not taken a final position on how far it will go in determining whether an employee’s social media postings which are critical of the employer (such as the “hot dog” postings) are protected activity.

Although not every employee social network posting will be held concerted and protected activity under the NLRA, it would be wise for an employer considering termination or another adverse action against an employee for social media postings to remember that the NLRB and the federal courts have held that activity of a single employee in enlisting the support of co-workers for their mutual aid and protection is as much “concerted activity” as group activity.