This month the NLRB adopted the Administrative Law Judges’ decision in Amalgamated Transit Union, Local Union No. 1433, AFL-CIO in which the Judge found no violations when, on the Union’s Facebook page, a variety of different comments regarding the crossing of a picket line during a labor dispute were posted by union members.  In particular, the complaint allegation stated that such behavior violated the Act as the social networking site (1) threatened employees of less favorable representation because the employees refused to participate in the strike; (2) threatened employees with physical harm because employees refused to participate in the strike.  At no time did the Union disavow any of the comments in issue and that was the key basis for the General Counsel going forward with the complaint.  The Judge found fault with this theory and denied any findings of wrong doing by the Union.  The Board upheld the ALJ’s determinations.

On its face, the findings and conclusions in this case by the Judge and the Board are contrary to law going back for several years, see NLRB v. Georgetown Dress Corporation, 537 F.2d 1239 (4th Cir. 1976); as well as more recent findings by the NLRB in the context of social media as the Board repeatedly finds social media policies that are ambiguous in any way have a “chilling impact” on Section 7 rights.  So how can openly threatening postings on a union Facebook page, which are not disavowed by the union, be lawful?  It will be interesting to see if this result carries over into the realm of union organizing where it could easily be a situation in reverse where employees are making comments supportive of an employer, that may cross the line in terms of coercive behavior.  If the employer does not disavow, is it still attributable to the employer?  I would bet that this Board would say yes.