Wyatt Employment Law Report

NLRB Opinion Reaffirms Focus on Message Rather Than Intent

by Marianna Michael

In a recent opinion, the National Labor Relations Board (“NLRB” or “Board”) held that a high-level executive’s tweet violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by interfering with and/or restraining employee rights to engage in concerted activity. The tweet, which was sent by an executive at TheFederalist.com, stemmed from a walkout at vox.com, one of the company’s competitors. On the day of the walkout, the executive tweeted, “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” An individual who does not work for the company saw the tweet and reported it to the NLRB.

The General Counsel tied the tweet to articles previously published on TheFederalist.com to exemplify the company’s anti-union position. The company tried to distance itself from the executive and framed his tweet as a personal opinion. It argued that no employee would reasonably believe that the tweet was a threat of reprisal. The company offered two affidavits from employees who found the tweet to be humorous. Further, the executive provided an affidavit insisting that the tweet was satire and an expression of his personal viewpoint on a contemporary topic of general interest. The Board cited American Freightways Co., 124 NLRB 146, 147 (1959), where the Board previously concluded that conduct may violate the Act regardless of its “motive or whether the coercion succeeded or failed.”  American Freightways Co. established the test which considers “whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.” The Board held that, though the tweet was sent from the executive’s personal account, the executive’s actions in tagging the company’s Twitter directed the message to the company’s employees. The Board “agree[d] with the General Counsel that a reasonable interpretation of the expression meant that working conditions would worsen or employee benefits would be jeopardized if employees attempted to unionize.”

This opinion reaffirms the Board’s longstanding precedent to look at the words themselves when inquiring whether a statement is potentially coercive or restrictive of employee rights under the NLRA. Intent and motive are largely irrelevant to the analysis. Further, this case serves as a reminder that companies must be aware that any individual, whether they are employed by the company or not, may bring a charge against them. In order to avoid a similar situation, companies should remind and train supervisory personnel to conform any social media post that relates at all to employment issues to the requirements of the NLRA. A link to the full opinion can be found here. 

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