Employer's Suggestion it Knew About Employee's Facebook Posts Does Not Permit Inferences of Protected Activity or Unlawful Retaliation: NLRB | Practical Law

Employer's Suggestion it Knew About Employee's Facebook Posts Does Not Permit Inferences of Protected Activity or Unlawful Retaliation: NLRB | Practical Law

In World Color (USA) Corp., the National Labor Relations Board (NLRB) reversed the ALJ's finding that the employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by asking an employee (who had recently been informed that his shift was to be reassigned) if he thought that management was unaware of posts he had made on Facebook. The record failed to show what the employee posted on Facebook and whether the posts were protected concerted activity.

Employer's Suggestion it Knew About Employee's Facebook Posts Does Not Permit Inferences of Protected Activity or Unlawful Retaliation: NLRB

by Practical Law Labor & Employment
Published on 18 Feb 2014 • USA (National/Federal)
In World Color (USA) Corp., the National Labor Relations Board (NLRB) reversed the ALJ's finding that the employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by asking an employee (who had recently been informed that his shift was to be reassigned) if he thought that management was unaware of posts he had made on Facebook. The record failed to show what the employee posted on Facebook and whether the posts were protected concerted activity.
On February 12, 2014 in World Color (USA) Corp., the Panel (Board) heading the NLRB's judicial functions reversed an NLRB administrative law judge's (ALJ) finding that the employer violated Section 8(a)(1) of the NLRA by asking an employee (who had recently been informed that his shift was to be reassigned) if he thought management was unaware of posts he had made on Facebook. The Board found that the counsel for the NLRB's General Counsel failed to present substantial evidence showing that the employee posted comments on Facebook that constituted protected concerted activity. The Board refused to infer that the employee posted comments on Facebook constituting protected concerted activity or that the employer's statement implied it had reacted adversely to posts because they were protected concerted activity. (360 N.L.R.B. slip op. 37 (Feb. 12, 2014)).

Background

From late September 2010 through early 2011, John Vollene, lead press operator in a commercial printing and publishing business and member of the union's negotiating committee, claimed that he posted comments on his Facebook page:
  • Criticizing his employer.
  • Discussing the union in response to another individual's initial post.
Vollene was Facebook friends with several of his colleagues and his supervisor. In October 2010, a decertification petition was filed and, in November, the employees voted to decertify the union. The Certificate of Election Results was issued in February 2011. Later in February, the supervisor informed Vollene that his press operator shift would be reassigned. When Vollene asked why, the supervisor:
  • Stated that reassignments are not always about production.
  • Asked Vollene if he thought that management was unaware of his Facebook posts.
The ALJ found that since Vollene could reasonably believe that his reassignment was retaliation for his Facebook posts, which the ALJ deemed protected activity, the supervisor's statement to Vollene about his Facebook posts violated the NLRA because it interfered with Vollene's exercise of his Section 7 rights.

Outcome

The Board reversed the ALJ's finding that the employer violated the NLRA by its supervisor's statement to Vollene about his Facebook posts. It found that the record failed to show:
  • What Vollene posted on Facebook.
  • That Vollene's Facebook posts constituted protected concerted activity.
  • The supervisor's comments could reasonably be understood to be in response to alleged protected concerted activity.
The Board found that:
  • The contents of the Facebook posts are undocumented and at best Vollene's unspecific recollections. For example, the counsel for the NLRB's General Counsel did not introduce printouts of Vollene's posts. Based on this limited evidence, the Board would not infer that Vollene's Facebook posts constituted protected concerted activity.
  • The supervisor's alleged statement may have implied that the employer reacted adversely to Vollene's posts. However, the Board could not infer from the supervisor's statement that the employer took an adverse employment action against Vollene because engaged in protected concerted activity through Facebook. The Board would not allow the counsel for the NLRB's General Counsel to use the employer's ambiguous statement to bridge the various evidentiary gaps.
  • In the circumstances of this case, the General Counsel failed to demonstrate that:
    • the supervisor's statement was directed at, or in response to, either actual or suspected protected concerted activity by Vollene; or
    • Vollene would reasonably understand the supervisor's statement as interfering with, restraining or coercing him from engaging in protected concerted activity.
The Board also affirmed the ALJ's finding that the employer's baseball hat policy (prohibiting workers from wearing baseball caps unless they show the employer's logo facing forward) was unlawfully overbroad under the NLRA.

Practical Implications

The Board has found Facebook posts among employees about terms and conditions of employment can be protected concerted activity. However, the Board will not infer that undocumented, unspecified criticism of an employer or comments about a union allegedly posted on Facebook constitute concerted protected activity. Nor will the Board infer an employer retaliated against for concerted protected activity on Facebook from a vague statement about the undocumented Facebook posts. The counsel for the NLRB's General Counsel must introduce substantial evidence tending to show an employee engaged in protected activity and suffered because of it, even when cases involves alleged employee Facebook posts.