The United States Court of Appeals for the District of Columbia Circuit upheld the National Labor Relations Board’s (“NLRB”) ruling that a union could not be held liable under the National Labor Relations Act (“NLRA”) for failing to remove derisive and allegedly threating comments posted on a private Facebook page maintained for union members. Weigand v. NLRB, No. 14-1024 (7th Cir. April 17, 2015). Specifically, the Facebook postings made disparaging remarks about persons who crossed the union’s picket lines.
Amalgamated Transit Union, Local Union 1433 (“ATU”) is the exclusive representative of a bargaining unit of bus drivers employed by Veolia Transportation Services in Phoenix, Arizona. Charles Weigand (“Weigand”) was a member of the collective bargaining unit represented by ATU, but he was not a member of the union. ATU went on a six-day strike in March 2012. During the labor strife, ATU used its Facebook page to communicate with members about the strike and its planned picket lines. The Facebook page could only be accessed by union members who were employed and in good standing. No other persons had access to the site or could post comments on the Facebook page. Posted comments called persons who crossed the lines “scabs” and wondered what would happen if “Molotov cocktails” were directed at the “scabs.” Weigand filed an unfair labor charge with the NLRB alleging that ATU had restrained and coerced him in the exercise of his rights under the NLRA.
An administrative law judge and later the NLRB rejected Weigand’s claims. On appeal, the D.C. Circuit upheld the administrative rulings on two grounds. First, the court held that the private Facebook page was not accessible or viewable by anyone other than active union members, such that the derisive messages were not aimed at either the public at large or non-union members who elected to cross the picket lines. Second, the disputed postings were made by persons who acted on their own without ATU’s permission, and ATU did not condone the posting of the messages on its Facebook page. Consequently, ATU, as a union, did not engage in an unfair labor practice under the NLRA.
The D.C. Circuit noted that its ruling was limited to the particular facts before it. The court made clear that “we have no occasion to consider whether the legal considerations might be different in a case in which real ‘threats’ were posted by union members on an open Internet site, i.e., communicated in an open forum that could be readily viewed by persons who were the subjects of the threats. Nor do we mean to suggest that the Board is foreclosed from ever finding a union guilty of unfair labor practices for postings on ‘closed’ Internet sites. We are in no position to speculate about the range and limits of communications in the fast-changing world of social media.”