Weigand v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2014 Decided April 17, 2015

No. 14-1024

CHARLES WEIGAND,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

On Petition for Review of an Order of

the National Labor Relations Board

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.

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Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

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 N.L.R.B. 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

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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 (1983), and it is supported by the record. In

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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 N.L.R.B. 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.

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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 (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.

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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 N.L.R.B. 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 N.L.R.B. No. 44, slip op. at 3. The

Complaint also alleged that in March of 2012, the Union’s

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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 Union should be held liable for its members’

Facebook comments because the members were acting as

agents of the Union. Id. at 5. On this point, the Acting General

Counsel made it clear that “the Government does not rely on

an agency theory” in seeking to hold the Union liable for the

statements of members who acted on their own without

permission from the Union. Id. Rather, the Acting General

Counsel advanced a theory that the Union had a “duty to

disavow” any statements posted on the Facebook page that

were “unlawful threats.” Id. at 3. In support of this theory, the

Acting General Counsel relied on case law that holds a labor

organization responsible for its members’ picket-line

misconduct when it does not correct or disavow the

misconduct. The Acting General Counsel thus argued that the

Union’s Facebook page was “an electronic extension of

Respondent’s picket line.” Id. at 5. The ALJ rejected this

argument.

The ALJ’s opinion on this point, which was adopted by

the Board, offers the following rationale:

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A picket line proclaims to the public, in a highly visible

way, that the striking union has a dispute with the

employer, and thus seeks to enlist the public in its effort

to place economic pressure on the employer. . . . The

picket line also signals to employees – both employees of

the struck employer and, in certain instances, employees

of other employers – that there is a labor dispute, to the

end that these employees will not cross the picket line but

instead will withhold their services. Thus, a picket line

makes visible in geographic space the confrontation

between the two sides.

In contrast, Respondent’s Facebook page does not

serve to communicate a message to the public. To the

contrary, it is private. Moreover, it does not draw any

line in the sand or on the sidewalk.

Unlike a website in cyberspace, an actual picket line

confronts employees reporting for work with a stark and

unavoidable choice: To cross or not to cross. Should

someone acting as a union’s agent make a threat while on

the picket line, the coercive effect is immediate and

unattenuated because it falls on the ears of an employee

who, at that very moment, must make a decision

concerning the exercise of his Section 7 rights.

Considering the marked differences, the

Respondent’s Facebook page certainly does not amount

to an extension of Respondent’s picket line and was not

created for that purpose. Respondent’s vice president,

Cornelius, fashioned the website to be a forum for the

sort of unfettered, candid discussion which typifies the

Internet.

Id.

As noted above, the Complaint also alleged that the

Union had committed unfair labor practices based on conduct

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apart from the Facebook postings. As to one such complaint,

the ALJ found that statements made by Cornelius during a

Union membership meeting – which included a remark that

the persons who leaked the contents of the Facebook page to

the NLRB “should be ashamed of themselves” – did not

violate Section 8(b)(1)(A) because the statements were not

threats. Id. at 6. The ALJ also addressed a charge that Union

agents at the picket line threatened employees who crossed

the line. He found that these actions were coercive and

constituted unfair labor practices in violation of Section

8(b)(1)(A). Id. at 10.

The NLRB largely adopted the ALJ’s rulings, findings,

and conclusions. See id. at 1 & n.1. Two of the Board

members, Chairman Pearce and Member Hirozawa, would

have affirmed the ALJ’s proposed Order as to the Facebook

comments on two grounds: that the comments were not

threats under Section 8(b)(1)(A) of the NLRA and that the

people who made those comments were not agents of the

Union. Id. One Board member, Member Miscimarra, believed

that at least some of the comments could have been perceived

as threats. He concurred in the judgment, however, on the

ground that the Union was not responsible for the Facebook

comments that had been posted by non-agents. Id.

The Board agreed with the ALJ that the Union had

violated Section 8(b)(1)(A) when its agents made threatening

statements to employees on the picket line. The Board thus

ordered that the Union: (1) “[c]ease and desist from . . .

[t]hreatening employees that they will receive less favorable

representation because they exercised their right to refrain

from participating in a strike”; (2) cease and desist from

“restraining or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the Act”; (3) post and

distribute electronically a notice to employees of their rights

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under Section 7. Id. at 1. The Union has complied with the

Board’s order. Br. for the NLRB 9 n.6.

Weigand filed this petition for review, challenging only

the Board’s order regarding the Facebook comments.

II. ANALYSIS

“As we have noted many times before, our role in

reviewing [a] NLRB decision is limited. We must uphold the

judgement of the Board unless, upon reviewing the record as

a whole, we conclude that the Board’s findings are not

supported by substantial evidence, or that the Board acted

arbitrarily or otherwise erred in applying established law to

the facts of the case.” Wayneview Care Ctr. v. NLRB, 664

F.3d 341, 348 (D.C. Cir. 2011) (internal quotation marks

omitted). We afford “a very high degree of deference to

administrative adjudications by the NLRB.” United

Steelworkers, 983 F.2d at 244. Where, as here, the Board

adopts the ALJ’s findings and conclusions as its own, we

apply the same deferential standard to those findings and

conclusions. NLRB v. KSM Indus., Inc., 682 F.3d 537, 544

(7th Cir. 2012).

Before addressing the merits of this case, we must

dispose of arguments that Weigand has raised for the first

time on appeal. In his brief to the court, Weigand points to

two allegedly threatening comments posted on the Facebook

page by Cornelius when he was Union Vice President. Br. for

Petitioner 5. These claims came too late. In the Acting

General Counsel’s complaint and in the briefing before the

ALJ and the Board, it was never alleged that Facebook

comments posted by Cornelius constituted unfair labor

practices. The General Counsel, not the Charging Party, has

discretion to decide whether or not to issue a complaint, and

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therefore exclusively controls the issues contained in the

complaint. See 29 U.S.C. § 153(d) (providing that the General

Counsel “shall have final authority . . . in respect of the

investigation of charges and issuance of complaints under

section 160 of this title, and in respect of the prosecution of

such complaints before the Board”); see also Int’l Union of

Operating Eng’rs, Local 150 v. NLRB, 325 F.3d 818, 830 (7th

Cir. 2003). Furthermore, although Weigand’s exceptions to

the ALJ’s decision referenced a comment posted by

Cornelius, he never specifically challenged the ALJ’s failure

to find that the Union committed any unfair labor practices on

the basis of any comment made by Cornelius. See N.Y. &

Presbyterian Hosp. v. NLRB, 649 F.3d 723, 733 (D.C. Cir.

2011) (holding that respondent failed to preserve issue on

petition for review where “the language [in respondent’s

exceptions to the ALJ’s decision] was too broad to put the

Board on notice” of respondent’s specific objection). And

during oral argument, counsel for Weigand conceded that his

client was not claiming that any comments posted by Union

agents were threats. Therefore, Weigand’s belated claims

regarding Cornelius are not properly before the court. Section

10(e) of the Act prevents us from considering an argument

raised for the first time on appeal. See 29 U.S.C. § 160(e)

(“No objection that has not been urged before the Board . . .

shall be considered by the court, unless the failure or neglect

to urge such objection shall be excused because of

extraordinary circumstances.”).

The sole question before the court is whether the Board’s

holding that the Union was not liable for the contested speech

posted on Facebook by persons who were not acting as agents

of the Union is supported by the record and consistent with

applicable law. In considering this question, our starting point

is Section 8(b)(1)(A), which applies only to conduct by “a

labor organization or its agents.” 29 U.S.C. § 158(b). If

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neither the Union nor one of its agents is responsible for the

cited conduct then the conduct cannot form the basis of an

unfair labor practice charge against the Union.

Ordinarily, “[t]he agency relationship must be

established with regard to the specific conduct that is alleged

to be unlawful.” Cornell Forge Co., 339 N.L.R.B. 733, 733

(2003). Thus, in the context of alleged misconduct on a Union

picket line,

[t]he Board will, in applying these agency principles,

impute the conduct of the union’s pickets to the union

only where it is shown that the union, either actually or

impliedly, authorized the picket’s conduct beforehand or

ratified the conduct after it occurred. For example, where

an authorized union representative such as a union

official or picket captain participates in picketing

misconduct or is present at the time the misconduct

occurs, the Board will not hesitate to find that the union

is responsible. Similarly, where the union has knowledge

of its pickets’ misconduct, but fails to take steps

“reasonably calculated” to control that misconduct, the

Board readily imputes responsibility for the misconduct

to the union.

Teamsters Local 860, Int’l Bhd. of Teamsters, 229 N.L.R.B.

993, 994 (1977) (footnotes omitted) (holding that union could

not be responsible for isolated misconduct by picketers that it

was not aware of and had expressly forbidden); see also Soft

Drink Workers Union Local 812, 307 N.L.R.B. 1267, 1272–

73 (1992) (finding union violated Section 8(b)(1)(A) by

violent misconduct committed by its strikers, when acts were

done in the presence of union agents or done with apparent

authority of the union, but not when an alleged assault was

committed apart from any union activity and the striker

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involved in the incident disappeared from the picket line,

“indicating that the union did not condone” his actions).

Even when there has been violence during a strike, the

Supreme Court has said that, while “[n]ational labor policy

requires that national unions be encouraged to exercise a

restraining influence on explosive strike situations . . . [t]here

can be no rigid requirement that a union affirmatively

disavow such unlawful acts as may previously have

occurred.” United Mine Workers of Am. v. Gibbs, 383 U.S.

715, 739 (1966). “What is required,” the Court has stated, “is

proof, either that the union approved the violence which

occurred, or that it participated actively or by knowing

tolerance in further acts which were in themselves actionable

under state law or intentionally drew upon the previous

violence for their force.” Id.

Weigand argues that “[w]hen a union officer/agent

creates and controls access to a union Facebook page, actively

participates [in] and initiates Facebook postings, participates

in unlawful misconduct or fails to admonish online union

members when misconduct occurs, the union should be held

responsible.” Br. for Petitioner 8. However, the cases cited by

Weigand involve misconduct on the picket line, which the

Board found inapposite. In adopting the ALJ’s opinion, the

Board reasoned that a private Facebook page available only to

union members is nothing like a Union’s picket line. In the

Board’s view, a picket line – unlike a private Facebook page

– is a “highly visible” signal to the public and all employees

of a dispute with the employer and the “coercive effect” of a

threat made on a picket line is “immediate and unattenuated.”

Amalgamated Transit Union, 360 N.L.R.B. No. 44, slip op. at

5. Weigand does not challenge the Board’s reasoning, and we

have no legitimate legal basis upon which to question it. In

stark contrast to violence or threats occurring on a picket line,

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the speech complained of here occurred on a private forum on

the internet that was meant for Union members’ eyes only.

Weigand also argues that a union has a duty to disavow

allegedly threatening conduct that occurs out of the context of

picket line misconduct. In support of this position, he cites

Battle Creek Health System, 341 N.L.R.B. 882 (2004), and

NLRB v. Bulletin Co., 443 F.2d 863 (3d Cir. 1971). Reply Br.

for Petitioner 8. These cases are readily distinguishable,

however, because they involved situations in which union

officials or their agents were implicated in the misconduct. In

Battle Creek, the Board found that the union had committed

an unfair labor practice based on threats made by a union

agent in the employee break room. 341 N.L.R.B. at 892–93.

The union’s liability in that case was explicitly based on an

agency relationship. Id. at 894 (“I conclude that Mietz’[s]

statements, made as an agent of the Union, violated Section

8(b)(1)(A) of the Act.”). In Bulletin Co., the Board found that

the union had “ratified and condoned” “continual” harassment

and violent behavior towards non-union workers, that the

employer had complained to the union president to no avail,

and that the misconduct had escalated to a point where the

workers were sent home “for their own protection.” 443 F.2d

at 865–67 & n.4. These cases clearly do not support

Weigand’s position in this case.

The Union here did not authorize or otherwise condone

the posting of the contested messages on the Facebook page.

Weigand tries to overcome this point by suggesting that, in

maintaining the Facebook page, the Union somehow

facilitated the publication of threats against persons who

opted to cross the picket line. The record simply does not bear

this out. The Facebook page was private, for Union members

only. Indeed, Weigand and other non-Union persons could not

view the comments on the Facebook page. Therefore, the

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most that can be said here is that the Union’s maintenance of

the Facebook page facilitated communications between Union

members, not threats against non-Union employees as in the

cases cited by Weigand. The Board reasonably concluded that

this was not a violation of the Act.

It is undisputed in this case that the Union members who

posted the comments on Facebook were not agents of the

Union. It is also undisputed that the Facebook page was

private to Union members only and was not meant to be seen

by anyone outside of the Union. Therefore, we have no

occasion to consider whether the legal considerations might

be different in a case in which real “threats” were posted by

union members on an open Internet site, i.e., communicated in

an open forum that could be readily viewed by persons who

were the subjects of the threats. Nor do we mean to suggest

that the Board is foreclosed from ever finding a union guilty

of unfair labor practices for postings on “closed” Internet

sites. We are in no position to speculate about the range and

limits of communications in the fast-changing world of social

media. Our denial of the petition for review is thus limited to

the record before us.

III. CONCLUSION

For the reasons set forth above, the petition for review is

denied.

So ordered.