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Union Need Not Disavow Non-agent's Threats on Union's Facebook Page: NLRB
Practical Law Legal Update 3-557-7245 (Approx. 5 pages)
Union Need Not Disavow Non-agent's Threats on Union's Facebook Page: NLRB
by Practical Law Labor & Employment
| Published on 18 Feb 2014 • USA (National/Federal) |
In Amalgamated Transit Union, the National Labor Relations Board (NLRB) affirmed the administrative law judge's (ALJ) finding that the union did not violate the National Labor Relations Act (NLRA) by failing to remove certain threatening comments (related to protected concerted activities) from its proprietary Facebook page where the individuals who posted the comments were not union agents.
On February 12, 2014 in Amalgamated Transit Union, the panel (Board) heading the NLRB's judicial functions affirmed an administrative law judge's (ALJ) conclusion that the union did not violate the NLRA by failing to remove certain threatening comments (related to protected concerted activities) from its proprietary Facebook page where the individuals who posted the comments were not union agents (360 N.L.R.B. slip op. 44 (Feb. 12, 2014)).
Background
Amalgamated Transit Union (union) represents a unit of bus drivers employed by a private contractor that provides public bus services for Phoenix, Arizona. In March 2012, the union engaged in a 6-day strike. The Charging party (an individual employee) filed an unfair labor practice (ULP) charge against the union in response to certain threatening comments allegedly made by the union on its Facebook page. These comments, because employees refused to participate in the union’s strike against the employer, threatened employees with:
- Less favorable representation.
- Physical harm.
- Violence (use of explosives).
The union denied these allegations. Following an investigation, an NLRB regional director, on behalf of the NLRB's Acting General Counsel, issued a complaint and the union filed a timely answer. The Acting General Counsel alleged that the union violated the NLRA by failing to disavow the threatening statements by persons not alleged to be union agents related to protected concerted activities on the union’s Facebook page.
Outcome
The Board affirmed the ALJ’s conclusions that:
- The union did not violate the NLRA by failing to remove certain comments from its Facebook page. The Board held that it was unnecessary to rely on the ALJ’s application of the Communications Decency Act (47 U.S.C. § 230) because the individuals who posted the comments were neither alleged nor found to be agents of the union. Further Chairman Pearce and Member Hirozawa found that the comments would not have been unlawful threats even if union agents made them. Member Miscimarra, in partial dissent, found that the comments would have been unlawful threats if made by union agents.
- Allegations that unlawfully threatened reprisals (including a threat to deactivate its Facebook page) in response to an unknown member providing the Charging Party with printouts of the union’s Facebook page (for him to hand to the NLRB) must be dismissed because the counsel for the Acting General Counsel did not allege or litigate the issue of whether that conduct was an unlawful threat or act of reprisal.
Practical Implications
This is the first Board analysis about obligations to disavow threats or other arguably NLRA-violative statements on proprietary Facebook and social media pages by persons who are not agents of the social media pages' owner.
Employers facing ULP charges related to comments made by non-agents on the company's social media pages and accounts should cite the ALJ's analysis, as affirmed by the Board, when declining to impose ULP liability on a party for failing to disavow a non-agent's posts. However, employees should recognize that the NLRB is more likely to consider a person to be an employer's agent than a union's agent. The NLRB traditionally imputes liability on employers for even low-level supervisor's actions, unless the employers disavow them.