Labor & Employment Law Daily NLRB ALJ finds fault with ominous tweet on Federalist publisher’s Twitter feed
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Monday, April 27, 2020

NLRB ALJ finds fault with ominous tweet on Federalist publisher’s Twitter feed

By Lisa Milam, J.D.

“First one of you tries to unionize I swear I’ll send you back to the salt mine”

An NLRB administrative law judge has ruled that the publisher of The Federalist website violated the NLRA when he posted a tweet on his personal Twitter account threatening to send employees “to the salt mine” if they try to organize a union. The publisher said his tweet was satire, but the ALJ was not amused. Considering the totality of the circumstances, the post, which was expressly directed “@FDRLST” employees, “had no other purpose except to threaten the FDRLST employees with unspecified reprisal,” the ALJ found, and thus would reasonably interfere with employees’ Section 7 rights. The employer has already said it will appeal the ruling to the full Board (FDRLST Media, LLC, April 22, 2020, Chu, K.).

Tweet. The publisher of The Federalist website often communicates with company employees through his personal email account and uses his personal Twitter account to promote the company’s content. In June 2019, a story posted on various online media and news sites about a walkout by unionized employees of Vox Media, an online digital media network. The Vox walkout impacted the Federalist, which “went dark” as a result. On that same day, the publisher posted a public tweet: “[email protected] first one of you tries to unionize I swear I’ll send you back to the salt mine.” At least one Federalist employee saw the tweet.

Charging party. It’s worth noting, though: the individual who filed the Board charge “is not and never has been” a Federalist employee, and counsel for the employer argues that the NLRA does not allow “someone completely unrelated to The Federalist or its employees to activate the machinery of government and press unsubstantiated charges against others with whom they disagree politically.”

On behalf of the employer? The employer argued that the general counsel failed to show that the publisher speaks for or on behalf of the company when he posts tweets on his personal Twitter feed. And the publisher claimed his tweet was merely “an expression of his personal viewpoint on a contemporary topic of general interest.” But the NLRB general counsel argued that the tweet was a threat from the employer, even though the tweet was made on the publisher’s own personal Twitter account, and the ALJ agreed. He found it significant that the personal tweet was prefaced with the company’s “@fdrlst” salutation coupled with an “FYI,” and concluded that the tweet was therefore “clearly directed to the employees of FDRLST and not to the general public.” The substance of the tweet, too, about sending workers to the salt mine, led to the reasonable conclusion that the tweet was directed at FDRLST employees, according to the ALJ.

Anti-union? The general counsel also asserted that the publisher’s tweet was consistent with The Federalist’s general anti-union editorial stance, citing a number of anti-union articles posted on its website. The employer argued to no avail that these posted items were simply republished from other sources—its website was simply a forum for multiple points of view, it urged, and the articles did not represent the company’s own viewpoint.

First Amendment. The employer also argued that the Board was infringing on First Amendment rights; however, as the ALJ explained, “these rights do not extend to threats made by employers to workers.” It’s settled law that, while an employer can convey views about unions or unionism to employees, those communications may not contain a “threat of reprisal or force or promise of benefit.” The publisher’s tweet was such a threat, and so was not shielded by the First Amendment or by NLRA, Section 8 (c), for that matter.

Off to the “salt mine.” “This expression is an idiom,” the ALJ noted; the words don’t mean exactly what they say, and employees obviously would not literally be sent to the salt mines. But like all idioms, he reasoned, the phrase carried an underlying, hidden meaning, and the “literal definition of salt mine explains the origin of the figurative meaning.” The reference to “salt mine” alludes to any job that would be tedious, and it implies that Federalist employees would be forced to endure arduous, monotonous, work if they sought to unionize.

Thus, although the ALJ acknowledged that the phrase is often used in “a lighthearted or joking way” and that the publisher insisted his tweet was satire, the ALJ construed the tweet as “an obvious threat.”

Affidavits irrelevant. Finally, the employer argued that a reasonable FDRLST employee wouldn’t construe the publisher’s tweet as a threat of reprisal—in fact, it presented two affidavits from employees stating that they perceived the tweet to be “funny and sarcastic” and not at all threatening. However, the ALJ said, the standard for evaluating an alleged threat under Section 8(a)(1) is an objective one—it is “assessed in the context in which it is made and whether it tends to coerce a reasonable employee,” he explained—and the employees’ subjective interpretations were of no use to the analysis.

At any rate, the ALJ said he could afford little weight to these documents because it wasn’t known why these particular employees were chosen to provide affidavits, or whether the employer’s request for affidavits was accompanied by implied threats, or assurances that they would not face reprisal for refusing to provide such a statement.

Federalist will appeal. The day after the ALJ’s ruling, the Federalist signaled it would appeal. “An ALJ assigned to a case by the NLRB ruling in favor of the NLRB is the very definition of an administrative-adjudication system rigged against the non-government litigant,” according to The New Civil Liberties Alliance (NCLA), whose attorneys represented the employer in the case. (The public interest firm’s stated goal is “to protect constitutional freedoms from violations by the Administrative State.”) “The process itself, as we have seen in this case, can be an oppressive punishment. Now, we wait for another wasteful round of litigation before the Board until we can obtain redress from a federal court.”

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