The United States Court of Appeals for the Third Circuit recently issued an opinion that reversed a decision by the National Labor Relations Board about whether a comment by a management representative was a threat to workers or a mere joke. The NLRB decision sheds interesting light on how remarks, such as this specific employer’s tweet, meant in jest can backfire. Fortunately for this employer, on appeal the Third Circuit “got the joke.”
The world is no stranger to a troublesome tweet, but it is doubtful that Ben Domenech, executive officer of FDRLST Media and publisher of The Federalist, anticipated the long legal battle that his brief tweet would provoke. Domenech’s June 2019 tweet stated: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” This tweet followed a walk-out by unionized employees at Vox Media that occurred while the employees were engaged in union contract negotiations.
Importantly, the court recognized that the record indicated no employees of The Federalist raised an issue with or expressed concern regarding Domenech’s tweet. Instead, issue was taken by a Massachusetts resident, who filed an unfair labor practice charge with the NLRB. The allegation was that Domenech’s tweet violated Section 8(a)(1) of the National Labor Relations Act (NLRA) which prohibits interfering with, restraining or coercing an employee in the exercise of their protected right to organize (29 U.S.C. § 158(a)(1)). In reviewing the claims in February 2020, an NLRB administrative law judge in New York City found that the NLRA was violated, reasoning that the NLRA could be violated even where “threats [were] allegedly made in a joking manner[.]” The NLRB affirmed the administrative law judge’s decision that the employer’s tweet was a prohibited threat.
The importance of context with the employer’s tweet
On appeal, the Third Circuit held that an alleged threat must be considered in context. Initially, the court affirmed the “any person” rule, which permits any person to present a claim to the NLRB – even if they are not an employee or connected to the employer whose conduct is at issue. The NLRB interprets the NLRA to allow “[a]ny person to file a charge alleging that any person has engaged in or is engaging in any unfair labor practice affecting commerce” (29 C.F.R. § 102.9 (emphasis added). It went on to reason, however, that the tweet at issue – when viewed in context – was not a threat, but rather a joke.
To constitute a threat, the Third Circuit explained, “an employer’s statement must warn of adverse consequences in a way that would tend to coerce a reasonable employee not to exercise her labor rights.” (FDRLST MEDIA, LLC. v. NLRB) The focus when considering an alleged threat is on the perspective of a reasonable employee and whether they would tend to be coerced or threatened by the employer’s conduct. Thus, the context in which the employer’s conduct occurred is a necessary consideration. The context here, both the medium of speech (via tweet) and that no employee raised concern with the speech, was vital to the court’s holding that the speech was not a threat.
This decision is an important reminder to employers on several levels. First, it is a reminder that truly any person could raise a claim under the NLRA alleging an employer’s speech is a violation. Second, employers should consider context when expressing a viewpoint. It is important for an employer to be aware of the environment in which their speech will be presented to a public audience. Third, it is a reminder to employers to tweet with caution. Many employers have at least some social media presence and these platforms often allow businesses to create an approachable brand for customers to engage with. In this way, social media allows employers to broaden their reach and create a productive line of communication with customers and employees alike. However, this case should serve as a cautionary tale for employers to be mindful of crossing the line from joke to potential threat.