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, AFLCIO (“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 
3

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 
4

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
7

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 
9

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 
10

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 
11

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 
12

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, 
14

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 
15

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.