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.
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.
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.
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