The National Labor Relations Board recently ruled that the publisher and co-founder of an online magazine violated labor law when he tweeted that he would send employees “back to the salt mine” if they attempted to form a union.
In its decision, the NLRB found that employees of The Federalist “would reasonably view the message as expressing an intent to take swift action against any employee who tried to unionize the Respondent. In addition, the reference to sending that employee ‘back to the salt mine’ reasonably implied that the response would be adverse.”
The attorney for the magazine’s parent company, FDRLST Media, argued that the tweet was a joke and the NLRB lacks “common sense and a sense of humor,” Bloomberg Law reports. The Board stated, however, that the intent behind the tweet is irrelevant, and what matters is whether the statement tends to interfere with workers’ rights under the National Labor Relations Act.
The NLRB also rejected FDLRST Media’s argument that the statement was not meant to be communicated to employees, since it was posted on Twitter. The ruling noted that the wording of the tweet was directed at employees and that Board precedent establishes that threats not intended for workers, but still seen by them, do violate labor law.
This case provides another reminder that specific rules come into play when employees are considering forming a union. Generally, companies cannot:
- Threaten employees based on their union activity
- Interrogate workers about their union activity, sentiments, etc.
- Make promises to employees to induce them to forgo joining a union
- Engage in surveillance (i.e., spying) on workers’ union organizing efforts
These rules apply whether communications are done in person or virtually via platforms like Twitter and Facebook. In fact, this ruling is not the first time the agency has weighed in on social media posts of high-profile executives in this context. The NLRB cited Tesla, Inc. CEO Elon Musk for an anti-union tweet in 2019.
Employers should be careful about posting anti-union sentiments on social media, even if meant as a joke. As seen in this most recent case, the NLRB would scrutinize whether the language interfered with worker’s rights and whether employees would reasonably view the message as such, regardless of the author’s intent.