NLRB Judge Dismisses Charge Against Union For Failing to Disavow Threatening Comments on its Facebook Page

An NLRB administrative law judge ruled on November 28 that a union did not engage in unlawful labor practices by failing to disavow threatening comments posted on its Facebook page.  In addition to finding that the Facebook page was not an extension of the picket line, the judge concluded that, under Section 230 of the Communications Decency Act (CDA), the union was not responsible for the comments posted on the page.  The case is Amalgamated Transit Union, Local Union No. 1433 v. Weigand, 28-CB-78377 (NLRB Nov. 28, 2012).   (Read the decision here)

A union representing public bus drivers went on strike.  Several months earlier, the union set up a Facebook page, which the union’s vice-president administered.  The union accepted “friend requests” only from union members in good standing.  Friends of the union Facebook page could see messages posted on the union’s “wall” and “like” such posts.

Shortly before and during the strike, union members posted comments on the union’s Facebook page threatening retaliation against workers who crossed the picket line.  The comments threatened less favorable union representation for those crossing the line, more aggressive reporting of workplace violations against line-crossers, and even violence.  Several comments suggested that line-crossers would be physically beaten.  Another comment announced the location where employer’s replacement drivers were allegedly being housed, to which a rank-and-file member commented: “Can we bring the Molotov Cocktails this time?”  At least one other union member “liked” this comment.

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 threatening comments.  Rather than alleging that the members posting comments acted as the union’s agents, the Acting General Counsel relied on the theory that a union is responsible for the coercive acts of its pickets on a picket line when the union fails to take corrective action or disavow the actions.  The Acting General Counsel argued that the union’s Facebook page is an “electronic extension” of the picket line.

The judge rejected the “electronic extension” theory, noting initially that the Facebook page existed well before the picket line.  Moreover, unlike a picket line, a Facebook page does not force union members to make a public and immediate decision to cross the picket line.   The Facebook page did not serve to communicate a message to the public, as it is private in nature.

In a somewhat surprising twist, the judge further ruled that the CDA immunized the union from liability for the comments on its Facebook page–an argument neither side had raised.  Often invoked in online defamation cases, Section 230(c)(1) of the  CDA states that  “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided.”  The judge regarded the union as merely the “provider” of the Facebook page, not the “publisher or speaker” of the comments posted on the page by its rank-and-file members.  Thus, the union itself could not be held liable for the comments posted on the page.

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