In a ruling involving the National Labor Relations Act and employees’ or union members’ use of the popular social networking medium, “Facebook,” a National Labor Relations Board administrative law judge has refused to liken threats made by union members on Facebook to threats made by those same union members who happened to be on a picket line or in person. In Amalgamated Transit Union, Local Union No. 1433, AFL-CIO and Charles Weigand (an individual), No. 28-CB-078377, union bus drivers for Veolia Transportation Services Inc., in Phoenix, Arizona, engaged in a six-day strike. During and after the strike, on the union’s Facebook page (and in person), members of the union threatened other employees with less favorable representation for refusing to participate in the strike. They also threatened those employees with physical harm.
One of the threatened employees filed an unfair labor practice charge against the union. After an investigation, the NLRB General Counsel determined there was enough evidence to issue a complaint. The GC alleged the union made “certain statements which restrained and coerced employees in the exercise of their right to refrain from engaging in concerted activity by crossing the picket line.” The complaint further alleged the union had a duty to “disavow” such statements, but did not.
Administrative Law Judge Keltner Locke decided that the union’s Facebook page should not be seen as an “electronic extension” of the picket line, as argued by the General Counsel, because it is a private forum for free discussion while a picket line is a “public symbol that there is a labor dispute.” Judge Locke also noted that an actual picket line “confronts employees reporting for work with a stark and unavoidable choice” as opposed to a “website in cyberspace.” Lastly, the Judge concluded that asking the union to disavow someone else’s speech on its site was not equivalent to asking it to disavow its own threats and “would push the board’s remedial authority to the edge of the envelope and perhaps beyond.” In issuing this conclusion, Judge Locke essentially determined that individuals who made threats on the union’s Facebook page, even threats of violence, could not be considered “agents” of the union so as make the union liable under the NLRA, although the union could be held liable for such threatening comments made by its agents on the picket line itself.
This decision continues a trend by the NLRB of protecting the nearly unfettered “expression” of both employees and unions in social media, at least where union or concerted activity can be discerned.
If you have questions about this or other NLRB rulings affecting both union and non-union workers, please do not hesitate to contact the Jackson Lewis attorney with whom you regularly work.
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