Court Rejects NLRB’s Ruling On Salt Mine Tweet And Affirms Employers’ Right To Free Speech

Volume: 21 | Issue: 28
June 8, 2022

In a common sense and reasonable ruling, the Third Circuit Court of Appeals has overturned the National Labor Relations Board’s (NLRB or Board) decision that a single sarcastic tweet by a manager constituted an unlawful threat to employees’ rights under the National Labor Relations Act (NLRA). The court’s decision, rejecting the Board’s expansive view of the law, is important to preserving employers’ right to free speech.

The employer operates The Federalist, a right-leaning internet magazine that employed six employees. On June 6, 2019, unionized employees of Vox Media, a left-leaning digital media company, walked off the job. On that same day, the publisher of The Federalist posted a tweet from his personal Twitter account that read: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Although the manager intended the tweet as satire and two employees explained that they viewed the tweet as funny and not threatening, the NLRB determined that the tweet was an unfair labor practice which violated the NLRA because it “obviously” threatened employees if they formed or supported a union.

The Third Circuit Court of Appeals disagreed, reminding us that “[a]n employer is not barred from communicating his views on unions—even his anti-union views—to his employees, but he cannot threaten employees with reprisals or promise them benefits in relation to unionization.” In determining that the publisher’s tweet was threatening, the Board failed to consider the full context of the tweet, including the lack of any labor strife at this workplace. Moreover, the message was posted publicly on Twitter, “which encourages users to express opinions in exaggerated or sarcastic terms,” to the publisher’s more than eighty thousand followers, “not to the email inboxes of his . . . employees.” “These characteristics . . . would give a reasonable . . . employee even more reason to read the tweet as mocking a rival internet media company or commenting on a timely socio-political issue than as threatening reprisal.”

The court reminded the Board that in protecting employee rights under the NLRA, it cannot violate an employer’s right to free speech. Instead, the NLRA must be narrowly applied to prohibit only statements that are a true threat. By failing to consider the context of this tweet in this workplace, the Board “lost the forest for the trees” and erroneously found that a “facetious and sarcastic tweet by the company’s executive officer” was threatening.

The Third Circuit covers federal courts in Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands. Its decision in this case is heartening for employers in these states who are rightfully wary of the Board’s current political makeup. While decisions from the pro-labor Biden NLRB are unlikely to reflect the common sense and reasonable approach used by the Third Circuit Court, this case highlights all employers’ ability to appeal unfavorable Board decisions to federal circuit courts in order to protect important rights such as free speech.

The other important takeaway from this case is how it started. A random member of the public filed the unfair labor practice charge – not an employee of The Federalist. Unlike most other administrative proceedings, the NLRB’s regulations allow any person to file an unfair labor practice charge. While it may seem odd that a member of the general public can initiate Board proceedings against an employer, it is an important lesson as to the scope of the Board’s reach.

If you would like more information about this decision or these legal principles, KZA attorneys are always available to assist you.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

Subscribe to the KZA Employer Report