Recently, the NLRB has issued a number of decisions addressing social media in the workplace as it pertains to employers. Last month, however, an NLRB judge rendered a decision addressing a Union’s potential liability and responsibilities for social media activities on its own Facebook page. Interestingly, the judge addressed the posts and comments of the Union’s members, rather than the Union itself. As a result, questions remain regarding whether this analysis applies only to a union, or whether it will apply similarly to an employer and the acts of its employees.
In Amalgamated Transit Union, Local Union No. 1433, AFL-CIO, Case 28-CB-78377, JD(ATL)-33-12 (ALJ Op. Nov. 28, 2012), the Union, which represents a bargaining unit comprised of bus operators, was charged with violating the National Labor Relations Act (“NLRA”) for the threatening statements made by the Union’s members on the Union’s Facebook page. The government alleged the Union had a duty to disavow any threatening statements, and because it failed to do so, its failure amounted to a restraint on the employees’ Section 7 right not to engage in union activities, in this case, a strike.
Regarding the threats, individual Union members threatened employees with less favorable union representation and violence if they refused to participate in the labor strike. For instance, on the first day of the strike, a Union member posted:
- “THINKING of crossing the line. THINK AGAIN!”
- “THINK about the future. When WE return, YOU will be gone. It is a fact that in union strikes across the nation that within six months after the strike ends that 90% of the workers that crossed the line are no longer employed there.”
- “THINK that the union will protect you. They may have to represent you, but will they give it 100%.”
In response to this post, one employee commented that he suffered from an eye condition and could not afford to lose his insurance because of the strike. In response, a Union member commented that if the employee crossed the picket line he would “lose his eyesight” from two black eyes. On the second day of the strike, the Union’s Vice President discussed holding a picket line at the hotel where the company’s replacement employees were staying. In response, one member commented, “[c]an we bring the Molotov cocktails this time?”
The government alleged that the Union had a duty to disavow these threats and relied on case law for the proposition that a Union is responsible for the acts of its members on a picket line when it fails to take corrective action. Thus, the government argued, because the website is an extension of the picket line, the Union was responsible for disavowing the threats made on its Facebook page. Failure to do so constituted a violation of the NLRA.
The judge rejected this argument and found marked differences between an actual picket line and a website. For instance, whereas a picket line communicates a public message from a Union, a Facebook page is private. Additionally, the judge found that hundreds of thousands of websites contain discussions that do not express the opinions of the host. Moreover, the judge found that requiring the union to disavow the posts amounted to compelled speech and implicates the Union’s First Amendment free speech concerns regarding the right to refrain from speaking. For these reasons, the judge found the Union had no duty to disavow the threatening posts and therefore had not violated the NLRA.
While this decision is good news for labor unions, it is unclear whether the NLRB will hold an employer to the same standards with respect to a company’s Facebook page. Notably, the allegations against the Union did not involve any officers or agents of the union, but rather, its individual members. Accordingly, until the NLRB decides this issue in the context of an employer’s social media page, employers must be diligent in monitoring not only the “official” posts on their social media websites, but also the contents of posts made by employees or other third parties.