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Facebook is Not a Picket Line

The National Labor Relations Act protects the rights of employees to connect and address conditions at work, and recent decisions have held that this protection extends to certain work-related conversations on social media.[1] However, it has yet to be determined exactly how far this protection will reach.

The issues and problems attendant with the rapidly-evolving area of social media and its uncontrolled ascent into every aspect of both home and work lives dominate so much of the discussion of workplace issues that one wonders if employers and employees will ever fully adjust to this new connected paradigm. The latest development involving social media and the workplace comes via the D.C. Circuit, which recently considered whether postings made on a union’s Facebook page constitute speech, and potentially illegal coercion, on the part of the union.

Bucharest Romania - Jan 23 2014: Photo of Facebook web page. Facebook is an online social networking service. Its name comes from a colloquialism for the directory given to students at some American universities.

In Weigand v. NLRB, a union established a private Facebook page as a method to update union member bus drivers on picket lines and other information during a six-day strike.[2] Tensions ran high during the strike, and several union members posted statements on the Facebook page disparaging those who crossed the line, referring to them as “scabs” and asking where to bring the “Molotov cocktails.”[3] The ability to post on the page was restricted to union members only. A non-union employee filed an unfair labor practice charge with the NLRB, alleging that he had been restrained and coerced, a violation of Section 7 of the National Labor Relations Act. The crux of the employee’s arguments is not that the members posting the comments were acting on behalf of the union, but rather that the union should have been responsible for those postings, deleting and disavowing them.

Weigand v. NLRB is particularly interesting because of how various agencies and entities have attempted to define what social media is, and is not. The NLRB has generally taken the position that social media is a virtual water cooler for purposes of concerted employee activity, and in Weigand, NLRB General Counsel took the position that social media can also be a picket line, with the attendant duties for the union to monitor and control conduct.[4] The D.C. Circuit rejected this idea wholly, citing key differences between a public, physical line of confrontation and a private online forum. The court found that while the union may ultimately be held accountable for the actions of its members in certain picket line circumstances, the actions of members cannot be imputed to the union absent some sort of agency relationship, where the members are working on behalf of the union. The union in Weigand did not support, authorize, or condone the messages posted on the private Facebook page, and the court refused to hold the union accountable for them.

This case suggests that courts will be loath to hold entities accountable for the social media postings of others when the entity merely establishes a forum for conversation and the offending posters do not speak on behalf of that entity. At the same time, both employers and unions should monitor public forums over which they have control, as commentary there may rise to actionable or illegal levels. In other words, it may be better to be generous with the delete function, than to be sorry.

For more information on how the NLRB regards social media conduct in relation to employers, employees and unions, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

This article is intended as a summary of state and federal law and does not constitute legal advice.

[1] See Costco Wholesale Corp., 34-CA-012421 (Sept. 7, 2012); See also Triple Play Sports Bar and Grille, 34-CA-012914, 34-CA-012926 (Aug. 22, 2014).

[2] Charles Weigand v. National Labor Relations Board, No. 14-1024 (D.C. Cir. 2015).

[3] Id. at 6.

[4] Lauren K. Neal, The Virtual Water Cooler and the NLRB: Concerted Activity in the Age of Facebook, 69 Wash. & Lee L. Rev. 1715 (2012), http://scholarlycommons.law.wlu.edu/wlulr/vol69/iss3/8 (last accessed May 4th, 2015).

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