On May 20, 2022, the U.S. Court of Appeals for the Third Circuit issued its decision in FDRLST Media, LLC, v. NLRB, 2022 U.S. App. LEXIS 13664 (3d Cir. May 20, 2022), holding that a non-related party could pursue an unfair labor practice (ULP) claim against the right-leaning online magazine The Federalist. The court also held, however, that no ULP was committed by the editor’s tweet about sending employees back to the “salt mine.”
In June 2019, left-leaning online magazine Vox’s employees walked-out during union negotiations. When this happened, Federalist editor Ben Domenech used his personal Twitter account to post a statement that said: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Domenech oversaw six people who were writers and editors at The Federalist. His public tweet could be seen by followers Domenech’s personal account, The Federalist’s official account, or any user of or visitor to Twitter.
The next day, a Massachusetts resident, Joel Fleming – who had no connection to any of this – filed a charge with the NLRB, claiming that Domenech’s tweet was a ULP. Fleming alleged that the tweet was a “threat” that violated the NLRA. Section 8(a)(1) of the Act “prohibits employers from engaging in practices that ‘interfere with, restrain, or coerce employees in the exercise’ of their protected rights to organize, collectively bargain, or engage in other union activity.”
An administrative law judge found in favor of the NLRB, holding that Domenech’s tweet was a ULP because it constituted a “threat of reprisal.” An appeal to the Third Circuit followed.
Two issues warrant discussion here. First, the court reaffirmed that the “passive voice” wording of the NLRA permits the Board to pursue ULP charges brought by virtually anyone. This includes, said the court, both concerned citizens and “political busybodies.” So, even though Fleming had nothing to do with any of this directly, the Board had to consider his charge.
Second, the court held that Domenech’s tweet was not a threat and did not violate the NLRA. The Third Circuit stressed that the Board did not consider several important facts:
- The literal meaning of the words. The court noted that the image of The Federalist’s writers being sent to create their drafts in a dimly lit mineshaft was such an obvious absurdity as to be farcical. The court also noted that a statement could be viewed as a veiled threat if there was additional evidence, “[b]ut the Board points to none.”
- The objective standard of a reasonable FDRLST Media employee’s view of the statement. A court does not consider the intent of an employer in making a statement, but instead whether its employees would reasonably view the statement as a threat or something else. This approach is particularly useful when addressing assertions that the statement was meant to be humorous, as “[h]umor is subjective.”
- The context of the statement. There are a few different factors a court can look to when determining the context of a statement. This can include any history of friction between employer and the employed, as well as the mode and timing of communication.
The court held here that there were important contextual factors missing from the Board’s determination. The Board did not investigate “a reasonable FDRLST Media employee’s” view of the statement. Additionally, the court noted that there was no history of friction between the employer and employees at The Federalist that might characterize Domenech’s statement as an actual threat of reprisal.
Furthermore, evidence showed that Domenech primarily used his personal Twitter account to comment on ongoing controversies and promote the editorials written by his employees. When he wrote the tweet, there was an ongoing union walk-out at Vox, a similar online magazine, but one with a different political slant. The court noted that a reasonable FDRLST Media employee would “read the tweet as mocking a rival internet media company or commenting on a timely socio-political issue . . ..”
While the words were perhaps superficially troubling, the court’s assessment of the full context of Domenech’s tweet led to the conclusion that the tweet was not, in fact, a threat or reprisal that rose to the level of an unfair labor practice under the NLRA.
What’s the takeaway? The U.S. is experiencing a resurgence in union organizing. This case provides a good reminder to employers that anyone – not just its own employees or a union trying to represent them – can file a ULP charge against them. And, even more important, employers need to remember that any statement suggesting a negative view of unionization (even if intended to be humorous) might lead to such a charge. Employers have the right to express their views, but within the restrictions developed under the NLRA. Remember “TIPS” – employers cannot Threaten, Interrogate, Promise or Surveil employees regarding unions.
*This blog was written by Kollman & Saucier intern Jacob Lattner, who recently completed his first year at University of Baltimore Law School.