The National Labor Relations Board found that a union committed an unfair labor practice by repeatedly blocking ingress and egress to a hotel for periods of one to four minutes. The opinion provides details about the union’s picketing efforts as a part of an organizing campaign. The blockage occurred during at least ten separate occasions over the course of more than a month. The Board adopted the ALJ’s decision holding that the picketers’ actions of standing in front of vehicles for minutes at a time, many driven by hotel valets, attempting to enter and/or exit the hotel violated Section 8(b)(1)(A) of the National Labor Relations Act.

As the dissent notes, this decision is significant because there were no allegations of violence and because the blockage lasted such short periods of time. Regardless, the Board determined that the union’s repeated, intentional blockage of drivers, including employees, would reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights.

Although injunctive relief was not sought in this situation, the NLRB’s decision in Unite Here! Local 5 (Acqua-Aston Hospitality, LLC) provides management with support for prompt relief in similar circumstances. Contact Husch Blackwell’s Labor and Employment team with any questions or to discuss options for responding to union activity in your business.

Recently, the NLRB has issued a number of decisions addressing social media in the workplace as it pertains to employers.  Last month, however, an NLRB judge rendered a decision addressing a Union’s potential liability and responsibilities for social media activities on its own Facebook page.  Interestingly, the judge addressed the posts and comments of the Union’s members, rather than the Union itself.  As a result, questions remain regarding whether this analysis applies only to a union, or whether it will apply similarly to an employer and the acts of its employees.

In Amalgamated Transit Union, Local Union No. 1433, AFL-CIO, Case 28-CB-78377, JD(ATL)-33-12 (ALJ Op. Nov. 28, 2012), the Union, which represents a bargaining unit comprised of bus operators, was charged with violating the National Labor Relations Act (“NLRA”) for the threatening statements made by the Union’s members on the Union’s Facebook page.  The government alleged the Union had a duty to disavow any threatening statements, and because it failed to do so, its failure amounted to a restraint on the employees’ Section 7 right not to engage in union activities, in this case, a strike.

Regarding the threats, individual Union members threatened employees with less favorable union representation and violence if they refused to participate in the labor strike.  For instance, on the first day of the strike, a Union member posted:

  • “THINKING of crossing the line.  THINK AGAIN!”
  • “THINK about the future.  When WE return, YOU will be gone.  It is a fact that in union strikes across the nation that within six months after the strike ends that 90% of the workers that crossed the line are no longer employed there.”
  • “THINK that the union will protect you.  They may have to represent you, but will they give it 100%.”

In response to this post, one employee commented that he suffered from an eye condition and could not afford to lose his insurance because of the strike.  In response, a Union member commented that if the employee crossed the picket line he would “lose his eyesight” from two black eyes.  On the second day of the strike, the Union’s Vice President discussed holding a picket line at the hotel where the company’s replacement employees were staying.  In response, one member commented, “[c]an we bring the Molotov cocktails this time?”

The government alleged that the Union had a duty to disavow these threats and relied on case law for the proposition that a Union is responsible for the acts of its members on a picket line when it fails to take corrective action.  Thus, the government argued, because the website is an extension of the picket line, the Union was responsible for disavowing the threats made on its Facebook page.  Failure to do so constituted a violation of the NLRA.

The judge rejected this argument and found marked differences between an actual picket line and a website.  For instance, whereas a picket line communicates a public message from a Union, a Facebook page is private.  Additionally, the judge found that hundreds of thousands of websites contain discussions that do not express the opinions of the host.  Moreover, the judge found that requiring the union to disavow the posts amounted to compelled speech and implicates the Union’s First Amendment free speech concerns regarding the right to refrain from speaking.  For these reasons, the judge found the Union had no duty to disavow the threatening posts and therefore had not violated the NLRA.

While this decision is good news for labor unions, it is unclear whether the NLRB will hold an employer to the same standards with respect to a company’s Facebook page.  Notably, the allegations against the Union did not involve any officers or agents of the union, but rather, its individual members.  Accordingly, until the NLRB decides this issue in the context of an employer’s social media page, employers must be diligent in monitoring not only the “official” posts on their social media websites, but also the contents of posts made by employees or other third parties.

It’s a myth that Twinkies last forever.  And just as these childhood staples will expire, it appears that the iconic brand behind them has also finished its run.  Hostess filed for its second bankruptcy in January and has since been trying to come out from under a mountain of debt.  These efforts came in the form of negotiating new contracts with members of the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union (BCTGM).  Sadly, on Friday November 16, 2012, Hostess announced “It’s over,” and that it would be closing its doors and shutting down.  The death knell for the financially struggling snack cake brand came on November 9th when members of BCTGM went on strike, effectively crippling Hostess.  As reported by the Associated Press, the nationwide strike came after Hostess proposed a new union contract, which cut a “$100 million a year contribution to pension costs to workers to $25 million a year, in addition to wage cuts and a 17 percent reduction in health benefits.”  The union rejected this offer, went on strike, and Hostess waved the white flag.  Twinkie lovers felt a glimmer of hope on Monday November 20, when Hostess and the union attempted mediation to resolve the conflicts plaguing the company.  Alas, mediation failed and Hostess has moved forward with its plan to liquidate.  Hostess’s liquidation means the closure of 33 bakeries, 565 distribution centers, and 570 bakery stores nationwide, not to mention the thousands of jobs lost.  In the aftermath, people are paying $100 for a box of Twinkies on EBay to preserve childhood memories.  Remember…they don’t last forever.