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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)
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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