Legal

NLRB: No Such Thing as an Online Picket Line

By Jon Hyman

Feb. 19, 2014

When is a picket line not a picket line? Apparently when the protests take place online, at least according to the National Labor Relations Board’s opinion in Amalgamated Transit Union, Local Union No. 1433 (NLRB 2/12/14) [pdf].

In the case, certain employees took to their union’s Facebook page to post threatening comments to co-workers who refused to participate in the union’s strike against their employer.

  • Prior to the strike starting, one of the posts threatened, “THINKING of crossing the line. THINK AGAIN!” Sixteen people commented on that post, included one that wrote, “If u cross … you will lose your eyesight … from the 2 black eyes.”
  • On the second day of the strike, another employee posted on the union’s Facebook page: “We found them!! We found out where they are housing the scabs.  We will be setting up lines at the hotel tomorrow.” Thirteen people comments on that post, including one that asked, “Can we bring the Molotov Cocktails this time?”

The employees argued that the union violated the National Labor Relations Act by not deleting or otherwise disavowing the statements posted on its Facebook page. The NLRB, however, disagreed:

Respondent’s Facebook page is in no way “an electronic extension” of its picket line…. A picket line serves a purpose quite distinct from that of the Facebook page. 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….

In contrast, Respondent’s Facebook page does not serve to communicate a message to the public. To the contrary, it is private….

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…. 

This decision displays a fundamental misunderstanding about social media. Nothing about social media is private. It is public, interactive, and immediate. Even if the page on which the employees were posting was a “private” page or group, nothing stops employees from sharing the content via prints or screen caps. I am concerned that the agency that has taken such an active public stance regulating social media in the workplace appears to have such a fundamental misunderstanding about how this media operates.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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