Charles Weigand v. NLRB , 783 F.3d 889 ( 2015 )

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
13
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.