While Car Salesman’s Hot Dog Complaint Protected, Embarrassing Customer Not, NLRB Decides
The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired.
The Board agrees with an administrative law judge decision that the salesman was fired solely for the photos he posted of a Land Rover that was accidently driven over a wall and into a pond at the adjacent dealership after a test drive. Both dealerships are owned by the same employer.
The salesman had 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. The ALJ said that 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 NLRA protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment, and an individual’s actions can be protected if they are undertaken on behalf of a group.
However, the Land Rover incident did not involve either concerted activity or complaints about the employees wages, hours, or terms and conditions of employment, according to the decision. In that incident, a salesperson 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 Board agrees with the ALJ, who observed: “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.” Because the posts about the marketing event did not cause the discharge, the Board finds it unnecessary to pass on whether they were protected. Karl Knauz Motors Inc. and Robert Becker