In a decision dated Sept. 28 the National Labor Relations Board decided its first case involving a discharge for Facebook postings; other such cases are pending before the Board.

The Board 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.

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.  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 other posting on the employee's Facebook page was that of a Land Rover accident.  A salesperson at the dealership 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 Board found that the posts about the marketing event did not cause the discharge, and, therefore, the Board found it unnecessary to pass on whether they were protected.

However, the three-member panel of the Board differed in its opinions of the car dealership's “Courtesy” rule regarding employee communications. The Board 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.