783 F.3d 889
D.C. Cir.2015Background
- Union (Amalgamated Transit Union Local 1433) maintained a private Facebook page accessible only to members in good standing; page used during bargaining and a six-day strike against employer Veolia.
- Some union members (not alleged to be union agents) posted derisive and violent-suggestive comments about employees who crossed the picket line; no violence occurred.
- Charging party Weigand, a Veolia employee and nonmember, filed an unfair labor practice charge alleging the Union violated § 8(b)(1)(A) by failing to remove or disavow the Facebook comments.
- The General Counsel’s complaint advanced a ‘‘duty to disavow’’ theory (analogizing the Facebook page to a picket line); the ALJ rejected that analogy and found the page was private and posters were nonagents.
- The NLRB adopted the ALJ’s findings: the posters were not union agents; two Board members additionally found the comments were not threats; the Board ordered relief only for agent-conduct on the picket line, not for the Facebook postings.
Issues
| Issue | Weigand's Argument | Union/NLRB Argument | Held |
|---|---|---|---|
| Whether the Union is liable under §8(b)(1)(A) for threatening Facebook posts by members | Union should be liable because an officer created/controlled the Facebook page and thus the Union must disavow or is responsible | The posts were by nonagents on a private members-only forum, not an ‘‘electronic extension’’ of a picket line; §8(b)(1)(A) applies only to union or its agents | The Board’s finding upheld: Union not liable for nonagent members’ private Facebook posts |
| Whether a union has a duty to disavow non-agent online misconduct (analogous to picket-line duties) | Duty to disavow applies to online forums maintained by union officers | Picket-line disavowal doctrine not applicable to private online forums that do not communicate to the public or coerce employees at the moment of choice | Held: no per se duty to disavow in these circumstances; ALJ/Board reasoning reasonable |
| Whether comments by Union VP Cornelius were properly before the court | Weigand later pointed to Cornelius’s comments as threats | NLRB noted the General Counsel never charged Cornelius’s Facebook comments; issues not preserved | Held: claims about Cornelius’s Facebook posts are unpreserved and not considered |
| Whether the NLRB needed to analyze Communications Decency Act as defense | Weigand argued Board erred by not adopting ALJ’s CDA analysis | NLRB: CDA not necessary to resolve NLRA claims here; General Counsel controls scope of complaint | Held: CDA analysis unnecessary; Board correctly resolved case under NLRA |
Key Cases Cited
- Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (administrative decisions must be reasoned)
- United Steelworkers of Am., Local 14534 v. NLRB, 983 F.2d 240 (D.C. Cir. 1993) (deference and substantial-evidence standard for NLRB findings)
- Wayneview Care Ctr. v. NLRB, 664 F.3d 341 (D.C. Cir. 2011) (standard of review for NLRB adjudications)
- NLRB v. KSM Indus., Inc., 682 F.3d 537 (7th Cir. 2012) (deference when Board adopts ALJ findings)
- United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966) (no rigid duty for unions to affirmatively disavow past unlawful acts absent approval or knowing tolerance)
- N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723 (D.C. Cir. 2011) (preservation rule for issues before the Board)
- Int’l Union of Operating Eng’rs, Local 150 v. NLRB, 325 F.3d 818 (7th Cir. 2003) (General Counsel’s prosecutorial discretion over complaints)