Weigand v. Nat'l Labor Relations Bd.

• Decision Date: 17 April 2015
• Docket Number: No. 14–1024.,14–1024.
• Citation: 783 F.3d 889
• Parties: Charles WEIGAND, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

783 F.3d 889

Charles WEIGAND, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 14–1024.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 20, 2014.

Decided April 17, 2015.

John N. Raudabaugh argued the cause and filed the briefs for petitioner.

Heather S. Beard, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney. Robert J. Englehart, Supervisory Attorney, entered an appearance.

Before: KAVANAUGH, Circuit Judge, SRINIVASAN, Circuit Judge, and EDWARDS, Senior Circuit Judge.

Opinion

EDWARDS, Senior Circuit Judge:

Charles Weigand (“Weigand”) petitions for review of a decision and order of the National Labor Relations Board (“Board”).

Weigand claims that the Board erred in dismissing his charge that the Amalgamated Transit Union, Local Union No. 1433, AFL–CIO (“Union” or “Respondent”) violated Section 8(b)(1)(A) of the National Labor Relations Act, (“NLRA” or the “Act”), 29 U.S.C. § 158(b)(1) (A), by failing to remove derisive and allegedly threatening comments posted on a Facebook page maintained for Union members. The disputed comments, which were written by some Union members without the permission of the Union, appeared on Facebook when the Union was on strike against Veolia Transportation Services in Phoenix, Arizona (“Veolia” or the “Employer”). The Facebook postings made disparaging remarks about people who crossed the Union's picket line. Weigand filed a charge with the Board's Acting General Counsel, who issued a complaint alleging that the Union had committed an unfair labor practice in violation of Section 8(b)(1)(A).

During the hearing before the Administrative Law Judge (“ALJ”), the General Counsel argued that the Union had a “duty to disavow” the Facebook comments, just as it might have a duty to disavow picket-line misconduct. Amalgamated Transit Union, Local Union No. 1433 (“Amalgamated Transit Union ”), 360 NLRB No. 44 (Feb. 12, 2014), slip op. at 5. The ALJ rejected the General Counsel's position, holding that the “Facebook page is in no way ‘an electronic extension’ of [the Union's] picket line.” Id. The Board largely affirmed the judgment of the ALJ. Id. at 1 & n. 1. With respect to the matter now before this court, the Board held that the Union was not responsible for the Facebook comments because “the individuals who posted the comments were neither alleged nor found to be agents of the [Union].” Id. at 1 n. 1. Two members of the Board's three-person panel also held that the Facebook comments did not violate the Act because they were not “threats” under Section 8(b)(1)(A). Id.

In his petition for review, Weigand does not challenge the Board's finding that the persons who posted the allegedly threatening comments at issue in this case were not agents of the Union. Instead, he argues that the Union should be held responsible for the Facebook entries posted by Union members because a Union officer controlled the Facebook page. We disagree and therefore deny Weigand's petition for review.

In accepting most of the ALJ's proposed rulings, findings, and conclusions, the Board embraced the position that the comments on the Union's private Facebook page were not analogous to misconduct on a picket line. Undergirding this position are two important findings: first, the Facebook page was not accessible or viewable by anyone other than active Union members—that is, the derisive messages were not aimed at either the public at large or at non-union persons who opted to cross the picket line; and second, the disputed postings were made by persons who acted on their own without the permission of the Union. In the Board's view, the second finding is critical and dispositive. See id. at 1 n. 1. In light of these findings, the Board concluded that the Union was not liable for the contested speech posted by persons who were not acting as agents of the Union.

The Board's decision regarding the Facebook postings is “the product of reasoned decisionmaking,” Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), and it is supported by the record. In circumstances such as this, “[w]hen the NLRB concludes that no violation of the NLRA has occurred, that finding is upheld unless it has no rational basis or is unsupported by substantial evidence.” United Steelworkers of Am., Local 14534 v. NLRB, 983 F.2d 240, 244 (D.C.Cir.1993) (internal quotation marks omitted). On the record before us, we have no basis to overturn the Board's judgment that the Union was not liable for the acts of non-agents. We need not reach the question whether the disputed Facebook postings were “threatening,” i.e., in the sense that they might have constituted a violation of Section 8(b)(1)(A) if made by agents of the Union. We leave this issue for another day.

Finally, in adopting the ALJ's finding that the Union “did not violate the Act by failing to remove certain comments from its Facebook page,” the Board found it “unnecessary to rely on the [ALJ's] application of the Communications Decency Act, 47 U.S.C. § 230 ” (“CDA”). Amalgamated Transit Union, 360 NLRB No. 44, slip op. at 1 n. 1. Weigand argues that “[t]he Board erred in refusing to consider and reverse the ALJ's holding that the Union is not liable under the CDA for posting threats on its Facebook page.” Br. for Petitioner 6. We disagree. In resolving this case, the Board properly applied the applicable law under the NLRA. Therefore, we agree with Board counsel that the Board “did not need to analyze the CDA as an additional defense for the Union, let alone consider Weigand's unsupported assertion that the CDA somehow constitutes an affirmative cause of action necessary to the Board's analysis.” Br. for the NLRB 11.

I. Background

A. Statutory and Legal Background

Section 7 of the NLRA protects employees' rights “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Section 7 also guarantees the right to “refrain from any and all of such activities.” Id.; see also NLRB v. Granite State Joint Board, Textile Workers Union of America, Local 1029, 409 U.S. 213, 216, 93 S.Ct. 385, 34 L.Ed.2d 422 (1972) (“Under § 7 of the Act the employees have ‘the right to refrain from any or all’ concerted activities relating to collective bargaining or mutual aid and protection....”). Section 8(b)(1)(A) of the Act makes it “an unfair labor practice for a labor organization or its agents ... to restrain or coerce ... employees in the exercise of [their Section 7 rights].” 29 U.S.C. § 158(b)(1)(A).

B. Facts

At all relevant times, the Union was the exclusive representative of a bargaining unit of full-time and part-time bus drivers employed by Veolia. Weigand was an employee of Veolia and a member of the collective bargaining unit represented by the Union, but he was not a Union member. From 2011 to 2012, the Union and Veolia were engaged in collective bargaining negotiations regarding the terms of a successor agreement. A breakdown in the negotiations led to a six-day strike in March of 2012. During the negotiations and the strike, the Union used the Facebook page to communicate with members about its progress and its planned picket lines.

The Union's Facebook account was created in 2010 by then-Union Vice President Michael Cornelius (“Cornelius”). The Facebook page could only be accessed by Union members who were employed and in good standing with the Union. No other persons had access to the site or could post comments on the Facebook page. Leading up to and during the strike, communications on the Facebook page by Union members were often impassioned and bellicose. For example, the posted comments included a rhetorical question asking if the picketers could “bring the Molotov Cocktails” to picket the hotel where the “scabs” were being housed. Amalgamated Transit Union, 360 NLRB No. 44, slip op. at 4. However, there were no allegations or findings of violence or untoward disturbances during the Union strike.

C. Proceedings Below

In April 2012, Weigand filed an unfair labor practice charge with the Board alleging that the Union had restrained and coerced him in the exercise of his Section 7 rights. The Acting General Counsel filed a complaint against the Union alleging violations of Section 8(b)(1)(A) on the basis of the posts on the Union's Facebook page, statements made by Cornelius at a monthly membership meeting on May 20, 2012, and verbal statements made by Union executive board members and strike team leaders to persons who crossed the picket line.

The Complaint alleged, in particular, that in mid-January of 2012, comments posted on the Union's Facebook page “threatened employees with less favorable representation” and “with physical harm because employees refused to participate in Respondent's strike against the Employer.” Amalgamated Transit Union, 344 NLRB No. 44, slip op. at 3. The Complaint also alleged that in March of 2012, the Union's Facebook page “threatened employees with violence by the use of explosives because employees refused to participate in Respondent's strike against the Employer.” Id.

The ALJ found that the Facebook page was limited to Union members in good standing. Indeed, as noted above, the record is clear that no persons could post comments or even see the Facebook page to view comments that had been posted, unless they were members in good standing with the Union.

It was neither alleged nor found that any of the contested comments on the Facebook page had been posted by Union officials or agents. And the Acting General Counsel did not assert that the...