On November 24, 2020, the Board held that a high-level executive’s tweet violated Section 8(a)(1) of the NLRA by interfering with or restraining employees’ protected, concerted activity.

In FDRLST Media, LLC, 370 NLRB No. 49 (2020), the Board reaffirmed its longstanding principle that a violation of Section 8(a)(1) does not depend on the employer’s motive or tone.  An executive’s tweet threatening employees that if anyone “tries to unionize I swear I’ll send you back to the salt mine” violated the Act because a reasonable employee could view it as expressing an intent to take adverse action against employees who attempted to organize a union.

Background

On June 6, 2019, news organizations covered the story of a walkout by union employees at Vox Media, an online digital media network and publisher.  On the same day as the walkout, an executive officer of the employer and publisher of the Federalist magazine tweeted:  “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine”.  The tweet was posted using the executive’s personal Twitter handle.  There was no evidence that employees of the employer had contemplated union organizing.  Indeed, the Administrative Law Judge noted the individual who had filed the unfair labor practice charge in this matter “is not and never has been an employee” of the employer.

On April 22, 2020, an administrative law judge (“ALJ”) found that the tweet violated Section 8(a)(1) of the Act, even though the employer argued that it had no malicious intent and that the alleged coercive communication did not succeed.  The Board affirmed the ALJ’s holding, citing American Freightways Co., 124 NLRB 146, 147 (1959), where the Board concluded that an employer may violate the Act regardless of its “motive or whether the coercion succeeded or failed.”  Rather, “[t]he test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.”

The Board upheld the ALJ’s conclusion that a reasonable employee would view the tweet as threatening unspecified reprisals against employees who engaged in union activity.  The ALJ found that the words “FYI” or ‘For Your Information” combined with the usage of @fdrlst was clearly directed at employees working at the Federalist – not the general public.  The ALJ noted that use of the term “salt mine” often referred to work that was tedious and labor-intensive, and reasonably indicated a worsening of working conditions if the employees unionized.

The Board agreed, finding that, even though the statement was publicly posted on Twitter, “the words of the statement itself leave no doubt that it is directed at the Respondent’s employees.” Furthermore, the Board cited precedent holding that even a threat not directed at employees but seen by them would still violate Section 8(a)(1).

The Board rejected  the employer’s defense that the tweet was protected by Section 8(c) as an expression of a personal viewpoint on a newsworthy topic.  Citing Webco Industries, 327 NLRB 172, 173 (1998), the Board stated that Section 8(c) does not protect implicit threats of reprisals.  The Board ordered the employer to direct the executive to delete the statement from his Twitter account.

Takeaways

This case illustrates something many employers find out too late: that under the rules and regulations of the NLRB, anyone can have standing to bring an unfair labor practice charge. Moreover, it costs nothing to file a charge and the charging party need not participate beyond providing information to the agency.  While the parties stipulated that “at least one employee” viewed the Twitter feed of the executive, no employee complained or even participated in the case.  Someone who merely saw the statement on Twitter set in motion the agency apparatus resulting in unfair labor practice liability.

This case does not change the underlying law and reinforces the longstanding principle that the Board’s only inquiry into whether a statement is coercive is to look at the words themselves.  That this tweet may have been a sarcastic attempt at humor, is irrelevant.

This case does demonstrate how flippant comments on social media can cause issues for employers.  In recent years, the Board has paid closer attention to the statements of high-level executives on social media.  As demonstrated here, the test of whether the conduct—a statement by a statutory supervisor—amounts to interference or coercion with respect to employees’ ability to engage in protected, concerted activity is objective, and does not depend on the intent or motive of the employer (or its agents).  Nor does such a finding depend on the subjective feelings of the employees with respect to the statement.  The case reaffirms the need by employers to effectively train and remind statutory supervisors that public social media use, even statements issued from a personal account, can bring liability under the National Labor Relations Act.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Scott Tan Scott Tan

Scott Tan is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Scott earned his J.D. from the UCLA School of Law, where he served as a problem developer and member of…

Scott Tan is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Scott earned his J.D. from the UCLA School of Law, where he served as a problem developer and member of the Moot Court Honors Board. He also worked as a research assistant for Dean Jennifer Mnookin and Professor Hiroshi Motomura.