“Back to the salt mine”… this phrase might seem harmless enough. Yet, when “back to the salt mine” appeared in the larger context of a tweet stating, “FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine …” (emphasis added), the National Labor Relations Board (the “Board” or “NLRB”) found some degree of harm.
- The Story
This matter came before the purview of the NLRB after an executive officer of FDRLST Media, LLC (the “Federalist” or “Company”) and publisher of the website “The Federalist” issued a public tweet on June 6, 2019 from his “personal” account. The tweet has been reproduced above, and as indicated, refers to the foreboding “salt mine.” The Federalist publishes websites, radio programs, and newsletters and is effectively a media organization.
The executive officer of the Company sent the tweet, purportedly in response to news from other media organizations (including the Washington Post, CNN, Bloomberg News, and Yahoo) that employees of Vox Media staged a walk out. On the same day Vox Media employees “walked out,” the executive officer tweeted his “salt mine” language from his personal Twitter account.
- Salt Mine?
For those of us who enjoy the tiny sodium crystals known as salt, we can thank salt miners for their service. However, the practice of salt mining has a connotation that is not entirely positive— largely stemming from the ancient Roman, and later Soviet, practice of varying degrees of coerced labor in unenviable conditions. In short, sending employees “back to the salt mine” is not the type of statement a savvy executive should consider making.
- The Charge
The Charge was filed on June 7, 2019, and the NLRB issued a Complaint on September 11, 2019 alleging the Company violated Section 8(a)(1) of the National Labor Relations Act (the “Act” or “NLRA”) when its executive officer threatened employee labor rights by way of the tweet.
The Federalist contended the tweet was a joke, posted in jest, and that it was not clear the executive officer intended to discourage employees of the Company from unionizing.1 The Administrative Law Judge described that Section 8(a)(1) dictates that “it is an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Section 8(a)(1) of the Act makes it unlawful for an employer to “interfere with, restrain, or coerce employees in the exercise of [those] rights.” See, Brighton Retail Inc., 354 NLRB 441, 447 (2009). The test for evaluating if the employer violated Section 8(a)(1) is “whether the statements or conduct have a reasonable tendency to interfere with, restrain or coerce union or protected activities.” Hills & Dales General Hospital, 360 NLRB 611, 615 (2014). Therefore, the Administrative Law Judge determined that the intent of the executive, and his motive behind the tweet, was not at play given employees could reasonably infer that adverse action would be taken against them if they attempted to unionize—joke, jest, or otherwise.
The Administrative Law Judge also determined that the fact the tweet originated from the executive director's personal Twitter account, and not that of the Company itself, was of no occasion. Indeed, he found that the tweet was directed towards employees of the Company, was viewed by at least one employee of the Company, and that statements made by a supervisor or agent of a company, even if couched in personal terms, can still be coercive. In short, the Administrative Law Judge determined that the actions of the executive officer, and that of the Federalist, interfered with the free exercise of employee rights under Section 7 of the Act.
The NLRB affirmed the Administrative Law Judge's finding that the Company violated Section 8(a)(1) of the Act because “employees would reasonably view the message as expressing an intent to take swift action against any employee who tried to unionize.”< /p>
- Sanction
The NLRB ordered that the Federalist: 1) cease and desist from
threatening employees with unspecified reprisals for engaging in
protected union activity; 2) direct the executive director to
delete the tweet in question and post in its facilities a Notice in
conspicuous places informing employees that the Company violated
Federal Labor Law and indicating employees have the right to
unionize; and, 3) file with the NLRB a sworn certification that the
Company complied with the directives of the NLRB.
- The Lesson
While most of those reading are already apprised of the risks and benefits associated with social media, public comments in general, particularly when such an individual is the executive director of a company or in other high-ranking management or administrative positions, are fraught with risk. Cases like this provide reminders of what not to do, and how not to act.
In any event, what can we take away from this case?
- Of course, be careful and cognizant of what is posted from your company's social media platform. Vigilantly monitor the public content disseminated from your company.
- Be careful what executive leaders, individually, post from their “personal” social media platforms. As in this case, the “personal” nature of the account did not insulate the Company from the actions of its executive officer.
- The NLRB appears to take any perceived “threat[s]” seriously—particularly when they involve employee's bargaining rights under the NLRA and even if there is no specific activity afoot.
- Taking the position that your social media post—or any other mode of communicating an inappropriate comment—was a “joke” or made in jest, might not save the day.
- There is a large body of NLRB decisions, as well as case law from Court decisions, regarding what type of discipline employers can levy against employees regarding social media behavior. This case stands for the premise that, at least in this instance, employers are not immune from “discipline” either. In this case, the NLRB stepped in and the other shoe dropped.
As always, Ice Miller LLP's Labor, Employment and Immigration attorneys are happy to help navigate the dangerous waters of today's ever-changing world. For more information, contact Cameron Ritsema or the Ice Miller attorney with whom you normally work.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
Footnote
1 In any event, there was no indication at the time that any employee of the Federalist desired to unionize.
Originally Published by Ice Miller, December 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
