NLRB Addresses Knauz BMW’s Hot Dog Situation in its Second Decision Regarding Social Media

Knauz BMW, 358 N.L.R.B. No. 164 (Sept. 28, 2012)

On September 28, 2012, the National Labor and Relations Board (“NLRB”) issued its second decision involving an employee’s use of social media. Lucky for us, the case is one we have covered multiple times on the blog.

Put simply, in Knauz BMW, a sales employee for a BMW dealership complained about his Facebook page about the poor choice of food the employer choose at the event of a sale. The employer terminated the employee for multiple reasons, including violating the employer’s courtesy policy, which stated that “[e]veryone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees,” and that “[n]o one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”  358 NLRB. No. 164, at *1.

Relying on its recent reasoning in Costco, the NLRB found the dealer’s “courtesy” rule unlawful because employees could “reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’ as encompassing Section 7 activity, such as employees’ protected statements—whether to coworkers, supervisors, managers, or third parties who deal with the Respondent—that object to their working conditions and seek the support of others in improving them.” 358 NLRB. No. 164, at *1.

Ultimately, the NLRB ruled that the rule itself violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”), but declined to decide on whether the employee’s complaints about the food were protected under the Act.  Nevertheless, the NLRB upheld the employee’s termination for other reasons, including “his unprotected Facebook postings about an auto accident” at an adjacent dealership, which did not relate to the terms and conditions of his employment. 358 NLRB. No. 164, at *1 n.1.

Both the Costco and Knauz BMW decisions confirm that social media continues to play a significant role in employment litigation; and thus, employers should be well informed before making any decisions that may subject them to potential liability.

A special thanks to Sean Gajewski, a law clerk at Cullen and Dykman, for helping with this post.