Why it matters: It is no secret that the National Labor Relations Board has been vigilant in its efforts to uphold the National Labor Relations Act in recent months, from striking down a confidentiality provision in an employment agreement to frowning upon an employer’s social media policy as violative of employee rights. But in a recent decision from a three-member panel of the Board, the agency reversed an administrative law judge’s imposition of liability where a supervisor criticized an employee’s Facebook comments and intimated they were the reason behind his shift transfer. Although the decision noted that employers could very well be liable under Section 8(a)(1) for impacting employee rights on social media, the panel refused to infer that the posts constituted protected concerted activity absent sufficient evidence.

Detailed Discussion

John Vollene, a member of the union’s negotiating committee at Nevada-based World Color Corp., a subsidiary of Quad Graphics, responded to another individual’s post on Facebook with comments criticizing World Color over a six-month period. Vollene was Facebook friends with several coworkers, including his shift supervisor.

A downturn in the economy impacted the company and reassignments occurred for all shifts. Vollene was one of many of the reassigned press operators. He asked his supervisor about the reassignment and was told that “it wasn’t always about production that – he said the management knew about my posts on Facebook. He – he asked me a question. He said don’t you think that they know about what you posted on Facebook.”

Last July an administrative law judge found the supervisor’s statement violated Section 8(a)(1) of the NLRA. Specifically, the judge found that Vollene could have reasonably believed that his reassignment was retaliation for his Facebook posts, which constituted protected activity.

But the three-member panel disagreed. Acknowledging that the Board has found Facebook posts among employees about terms and conditions of employment to be protected concerted activity, the panel said “scant evidence” was presented about the actual content of Vollene’s posts – leaving a question about whether he engaged in protected activity.

“The testimony indicates only that Vollene posted unspecified criticisms of [World Color] and unspecified comments about the union over a period of 5 or 6 months, and that he responded to another person’s initial post,” according to the decision. Lacking stronger evidence – and an actual printout of the posts – the panel refused to infer that the posts amounted to protected activity. And the supervisor’s “statement impl[ying] that [World Color] had reacted adversely to critical posts is insufficient to bridge the evidentiary gap here.”

The panel took pains to note that employers can violate Section 8(a)(1) even where an employee has not engaged in protected concerted activity (with a rule that an employee could interpret as prohibiting his or her rights, for example).

But in Vollene’s case, there was insufficient evidence “to demonstrate that [the supervisor’s] statement was directed at, or in response to, either actual or suspected protected concerted activity by Vollene or that Vollene would reasonably understand [the] statement as interfering with, restraining, or coercing him from engaging in such activity.”

The decision wasn’t entirely in the employer’s favor, however. The panel upheld the ALJ’s determination that a rule about headwear violated the NLRA. World Color’s employee guidelines included the following rule: “. . .Baseball caps are prohibited except for Quad/Graphics baseball caps worn with the bill facing forward. . . .” Because World Color failed to demonstrate evidence of special circumstances that outweighed employee rights (like violence or interference with safety), the panel agreed that the hat policy violated Section 8(a)(1).

To read the decision in World Color Corp., click here.