The Court of Appeals recently slammed the National Labor Relations Board’s decision that the publisher of conservative online magazine the Federalist unlawfully threatened workers by tweeting that he’d send them “back to the salt mine” if they tried to unionize. A November 2020 ruling from the NLRB ordered Ben Domenech, the publisher of The Federalist, to remove a Tweet in which he made the salt mine tweet. The Federalist appealed the decision and at oral argument on November 10, 2021 at the U.S. Court of Appeals for the Third Circuit, one judge focused on First Amendment concerns about sanctioning FDRLST Media, which runs the magazine, for a tweet that arguably was a joke. Another judge questioned whether the NLRB should have taken the case based on an initial charge that was filed by a person who didn’t work at the Federalist.
NLRB: Salt Mine Tweet Under Fire
All this after the NLRB ordered billionaire Elon Musk to delete a 2018 Tweet that the board found threatening to workers at his Tesla plants.
Whether the Tweets from either person were threatening workers or not, or whether there was a humorous intent or not, or whether the Third Circuit reverses the NLRB decision, it’s a clear warning from the NLRB for employers to watch what they say on social media. The Third Circuit was clearly questioning during the oral argument the NLRB’s power. The case could have major implications for the scope of NLRB power and its ability to police anti-union rhetoric that appears on social media.
Regardless of the outcome of this case, Employers should have a clear social media policy for employees, and should include regular training for all employees. In our current labor environment, senior management should be informed about the labor impact of their statements and be careful what they say. Senior management should especially avoid using social media for any kind of union-busting talk.
If you have any questions on these recent cases, or if you have questions about your company’s social media policies, please contact me.