[author: Brian J. Kurtz]
Executive Summary: Citing the Communications Decency Act, a National Labor Relations Board (NLRB) administrative law judge held that a union that maintained a Facebook page did not have a duty to disavow threatening comments posted by union members.
Background
The city of Phoenix, Arizona, contracts with Veolia Transportation to provide public bus service. Veolia's drivers are represented by the Amalgamated Transit Union Local 1433. In March 2012 the union waged a six-day strike against Veolia, during which union members began posting messages on the union's Facebook page. The union had set up the Facebook page a few months earlier and only accepted "friend" requests from members in good standing.
Contract negotiations in early 2012 were difficult, and a strike seemed like a very real possibility. Two months before the strike began, a rank-and-file union member posted the following messages on the union's Facebook page:
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%.
THINK of how your family and neighbors will feel when we hold a informational picket outside YOUR HOUSE. YES we can, and YES we will.
On the second day of the strike the union's vice president posted a message on the union's Facebook page indicating that he had identified the hotel where Veolia's replacement drivers were being housed. This elicited at least one ominous comment from a rank-and-file member: "Can we bring the Molotov Cocktails this time?" At least one other member "liked" this comment.
The Complaint
The NLRB Acting General Counsel issued a complaint alleging that the union violated Section 8(b)(1) of the Act by failing to disavow the "will they give it 100%" and "Molotov Cocktail" comments, among others. The Acting General Counsel did not allege that the members who posted the messages were the union's agents. Instead, the Acting General Counsel's theory was based on a line of cases holding that a union is responsible for the coercive acts of its pickets on the picket line if it does not effectively disavow them.
Complaint Dismissed
A NLRB administrative law judge rejected the Acting General Counsel's theory and recommended dismissal of the "disavow" allegations. The Acting General Counsel contended that the union's Facebook page was an extension of the picket line, but the judge disagreed noting for one thing that the Facebook page was created months before the union went on strike. The judge also drew a distinction between an actual picket line and cyberspace. A picket line confronts an employee with a real decision – whether to cross or not. The coercive effect of a picket who threatens an employee is immediate. Cyberspace offers privacy and is nonconfrontational.
Judge Relies On Federal Internet Statute
In an interesting twist to his decision, the judge also held that the Communications Decency Act of 1996 required dismissal of the complaint's "disavowal" allegations. This was a somewhat unexpected aspect of the judge's opinion because none of the parties in the case had discussed the CDA in their briefs. The judge pointed to Section 230(c)(1) of the CDA which states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided." The judge held that the union was the "provider" of the Facebook page, and thus the rank-and-file employees who posted messages – even threatening messages – were "publishers or speakers" for whom the union had no responsibility.
Bottom Line:
The Veolia case dealt with a union's Facebook page, but the decision may have interesting implications for employer-established Facebook pages. Should management's strategy during an organizing campaign or labor negotiations include setting up a social media site as an open employee forum? We think employers should proceed with caution. There is still much that the NLRB – and likely the courts – will have to say about the internet and social media in the workplace.
If you have any questions about this Alert or other labor or employment related questions, please contact the author, Brian J. Kurtz, a partner in our Chicago office at bkurtz@fordharrison.com, 312-960-6137, or the FordHarrison attorney with whom you usually work.
