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"First one of you tries to unionize …
I’ll send you
back to the salt mine." |
FDRLST Media v. NLRB
(3rd Cir 05/20/2022)
http://case.lawmemo.com/3/FDRLST.pdf
Sent to Custom Alerts™
subscribers on 05/21/2022
"First one of you
tries to unionize I swear I’ll send you back to the salt mine."
That was a tweet sent by the employer's executive officer from his
personal Twitter account.
The NLRB held that this was an
unfair labor practice, finding that it was a prohibited threat of
reprisal. The Board entered a cease and desist order, and also
ordered the employer to direct the executive officer to delete the
tweet.
The 3rd Circuit refused to enforce the Board's
order, finding that the evidence did not support a determination
that a reasonable employee would view the tweet as a threat.
The court pointed out that the employer is a tiny media
company employing six writers and editors. The court said, "The
tweet’s suggestion that these employees might be sent 'back' to
work in a 'salt mine' is farcical."
The court faulted the
Board for failing to even consider the employer's labor
environment. The court said, "The Board points to no history of
labor strife, no evidence of antagonism, nor even a single example
of labor-management tension. The Board cited only one brief tweet,
posted from a supervisor’s personal Twitter account. The record
contains no sign— indeed, no inkling—of any circumstance at FDRLST
Media that leads us to conclude that a reasonable employee would
interpret Domenech’s tweet as a veiled threat."
The court
also faulted the Board for refusing to consider the employees'
subjective interpretation of the tweet, saying that subjective
interpretations can shed light on how a reasonable employee would
objectively view an employer’s conduct. The employer claims the
tweet was made in jest, and "Humor is subjective."
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