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Union Not Responsible for Facebook Posts, D.C. Cir. Rules

By Casey C. Sullivan, Esq. on April 27, 2015 | Last updated on March 21, 2019

An AFL-CIO transit union cannot be held responsible for disparaging comments made by its members on Facebook, the D.C. Circuit has ruled. The case involved comments about picket line crossers made on the Union's private Facebook page during a strike.

The comments, which predictably called non-union workers scabs and rhetorically asked about Molotov cocktails, were not union-organized coercion which would violate the National Labor Relations Act, the Circuit held.

Are Facebook Posts Coercion?

The case arose during a six day strike in Phoenix, Arizona, as bus drivers were renegotiating their contract with Veolia Transportation Services. The union created a Facebook page which it used to notify members about picket-lines and other activity. Some of the comments, the court noted, were "impassioned and bellicose." One representative comment, made by a union member, asked if picketers could "bring the Molotov Cocktails" to the hotel where "scabs" were being housed.

Charles Weigand, a Veolia employee, filed an unfair labor practice charge with the NLRB. The NLRA allows employees to organize a union -- and to not join one. Those who do not join are protected from restraint or coercion on the part of the union. Weigand had alleged that the comments, which he characterized as threats of violence meant to force him to strike, violated that part of the law.

Facebook is Not a Picket Line

Weigand's claims were supported by the acting general counsel of the NLRB, who argued that the union had a duty to disavow the statements as "unlawful threats." Facebook was, under this view, "an electronic extension" of the picket line, where a union can be held responsible for the misconduct of its members.

As the D.C. Circuit noted, the protection against union coercion, applies only to conduct by a union or its agents. For the members' Facebook comments to have violated this provision, they must have been made as agents of the union. On a picket line, a striking worker may be an agent of the union if the union authorized the member's conduct or refuses to take steps to correct known misconduct. But a union need not disavow all unlawful acts, even violent ones, if it is not behind them.

There was no evidence that the union organized the postings, the court held. Just maintaining a website, as was the case here, does not count. But even if there had union organization, the analogy between a Facebook page and a picket line would not hold up. While a picket line is purposefully public, the Facebook posts in question were private. Weigand couldn't see them, nor could any other non-union members.

The case is good news for labor organizers who use Internet forums to communicate with members -- they can't be held responsible for every rude thing that's said on their page.

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