On April 17, 2015, the U.S. Court of Appeals for the District of Columbia Circuit upheld a National Labor Relations Board (“NLRB” or “Board”) decision finding a local branch of the Amalgamated Transit Union (“Union”) could not be held responsible for allegedly threatening entries posted on its private Facebook page by its members during a strike with Veolia Transportation Services (“Veolia” or “Employer”).Weigand v. N.L.R.B., — F.3d —-, 2015 WL 1740081 (D.C. Cir. Apr. 17, 2015).

The Union was the sole representative of a bargaining unit of Veolia’s full-time and part-time bus drivers. The petitioner in this case, Charles Weigand, was a member of the bargaining unit. In March 2012, the Union called the employees out on strike after the parties failed to reach agreement on a new collective bargaining agreement. The Union used its Facebook page to communicate with members about the strike. Comments on the Facebook page, however, became aggressive during the course of the strike. For instance, one post asked if the picketers could bring “Molotov cocktails” to picket the hotel where the “scabs” were being housed. The Facebook posts also included a comment by someone who said: “THINKING of crossing the line. THINK AGAIN! . . . THINK that the union will protect you. They may have to represent you, but will they give it 100%.” When another employee asked what he was supposed to do about the strike because he could not afford to lose his insurance due to a medical condition that would cause him to go blind without injections, one of the responses posted on the page said: “If u cross . . . you will lose your eyesight but from the 2 black eyes [Union member] is gonna give u lol.”

In April 2012, Weigand filed a charge with the NLRB alleging the Union conducted unfair labor practices by restraining and coercing him with respect to his rights under Section 7 of the National Labor Relations Act (“NLRA” or “Act”) to refrain from engaging in the strike. To support his claim, Weigand pointed to, among other things, the above-mentioned Facebook posts on the Union’s page. Weigand claimed the comments were attributable to the Union because one of its officers controlled the Facebook page.

After conducting a hearing on Weigand’s charge, an administrative law judge (“ALJ”) for the NLRB found in favor of the Union with respect to the Facebook posts, rejecting the argument that the Union’s Facebook page was an “electronic extension” of the Union’s picket line and concluding that the Union had no duty to disavow the threatening posts. By contrast, the ALJ found that similar comments made on the picket line itself by Union members did violate the Act. On review, the Board adopted most of the ALJ’s findings in their entirety. With respect to the Facebook postings, two of the three Board members found that the Facebook comments were not threats under the Act, and they were not made by the Union’s agents. The third Board member affirmed the decision of the ALJ only on the grounds that the comments, which the Board member believed could have been considered threats, were not made by Union agents.

Weigand filed a petition for review with the D.C. Circuit, contesting the finding regarding the Facebook comments. The court denied Weigand’s petition, finding the statements were not made by agents of the Union and, therefore, the Union could not be held liable for them. In coming to its conclusion, the court adopted the ALJ’s findings distinguishing between a picket line and the Facebook page:

Unlike a website in cyberspace, an actual picket line confronts employees reporting for work with a stark and unavoidable choice: To cross or not to cross. Should someone acting as a union’s agent make a threat while on the picket line, the coercive effect is immediate and unattenuated because it falls on the ears of an employee who, at that very moment, must make a decision concerning the exercise of his Section 7 rights.

The court found that if “neither the Union nor one of its agents is responsible for the cited conduct then the conduct cannot form the basis of an unfair labor practice charge against the Union.” To find that individuals who made threats on the Facebook page were agents of the Union, the court required “proof, either that the Union approved the violence which occurred, or that it participated actively or by knowing tolerance in further acts which were in themselves actionable under state law or intentionally drew upon the previous violence for their force.” The court ultimately held the Union did not have an obligation to disavow the allegedly threatening posts. In rejecting the argument that the Union had such a duty, the court found the “Union did not authorize or otherwise condone the posting of the contested messages on the Facebook page.”

We have reported previously about the NLRB’s campaign to police employer responses to employee posts on social media. In those cases, the Board generally has found that employees’ comments about the workplace are protected under Section 7 of the NLRA, and employers who take action based upon those comments violate the Act by chilling their employees’ right to engaged in concerted activity. In contrast, the Weigand case refuses to hold unions accountable for comments its members make through social media that clearly have a chilling impact on their members’ rights under Section 7 to refrain from engaging in concerted activity – in this case, the right not to strike. Given the pro-labor sympathies of the current Board, this apparent double standard should not be surprising, and employers can expect it to continue.