NLRB rules on employer who tweeted: if anyone ‘tries to unionize I swear I’ll send you back to the salt mine’

The National Labor Relations Board ruled against an employer who threated to send employees “back to the salt mine” if they unionized.

JD Supra reports:

“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).”

For the rest of the story, visit JD Supra here.

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