Friday, December 18, 2020

Back to the Salt Mine: Executives’ Social Media and the NLRA

Author: Elizabeth Duff Mendoza

The National Labor Relations Board (NLRB) recently affirmed the decision of an administrative law judge that FDRLST Media, LLC (“FDRLST”) violated the National Labor Relations Act in June of 2019 when Ben Domenech, publisher of the Federalist, published the following tweet on his personal Twitter handle: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Domenech’s tweet was posted in response to the news of Vox Media Inc. employees walking off the job after demanding a new collective bargaining agreement. FDRLST contended that Domenech’s tweet was clearly intended as a joke and submitted affidavits from Federalist employees attesting that they viewed it as such. FDRLST further argued that the tweet was posted from Domenech’s private Twitter handle and was not a communication on behalf of FDRLST, that the individual who filed the complaint was not even a FDRLST employee and that a reasonable FDRLST employee would not take Domenech’s tweet as a threat of reprisal with loss of employment or other benefits.

The administrative law judge and the National Labor Relations Board found FDRLST’s arguments unpersuasive. Specifically, the NLRB affirmed the administrative law judge’s finding that Domenech tweet’s violated Section 8(a)(1) of the National Labor Relations Act, which makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act,” which includes employees’ “right 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 and protection.” In evaluating cases for these types of unfair labor practices, the NLRB looks at “whether the statements or conduct have a reasonable tendency to interfere with, restrain or coerce union or protected activities.” The employee's motive, whether joking or not, is immaterial to the analysis. Instead, the relevant analysis is to “determine how a reasonable employee would interpret the action or statement of her employer.”

This decision, along with other NLRB decisions in recent years regarding comments from high-profile executives, serves as a warning to employers to ensure that management level employees know and understand employer obligations under the National Labor Relations Act and exercise caution and restraint, even in personal social media communications, regarding topics of employee self-organization.

The NLRB’s full opinion and order for FDRLST Media, LLC, 270 NLRB No. 49 (2020) is available here.

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