Does Anti-Union Social Media Posts Implicate Labor Board Violations?
On December 18, 2019, Barstool Sports, Inc. (“Barstool”) reached an informal settlement with the National Labor Relations Board (“NLRB”) that calls for the deletion of tweets and removal of other anti-union material created by the company. (Settlement Agreement, Case 31-CA-246638). This settlement comes just four months after Barstool’s co-founder David Portnoy (“Portnoy”) drew criticism for posting anti-union tweets on behalf of the company.
The controversy began, August 12, 2019, after Portnoy tweeted about an article he had written in 2015 in which he commented on Gawker Media voting to unionize and stated “I pray that Barstool employees try to unionize… Just so I can smash their little union to smithereens.” (Portnoy, Barstool Sports Blog). When Rafi Letzter, a staff writer for Live Science, responded to Portnoy’s tweet and offered to chat with Barstool employees about organizing, Portnoy threatened that he would fire any employee who reached out to the union supporter about organizing. (Knowles, Washington Post). Specifically on August 13, 2019, Portnoy tweeted, “If you work for @barstoolsports and DM this man I will fire you on the spot.” (Wallender, Bloomberg Law). Portnoy reiterated his position in subsequent tweets, posting a shirt for sale with his face and the words “Union Buster.” Id. He also challenged Representative Alexandria Ocasio-Cortez (D-N.Y.) to a debate after the congresswoman said Portnoy was likely breaking the law with his tweets. Id. The Industrial Workers of the World Freelance Journalists Union immediately filed a complaint with NLRB after Portnoy’s comments were made. Id.
Under the National Labor Relations Act (“NLRA”), it is a violation of labor laws for an employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in the NLRA, including the right to self-organization or join labor organizations. (NLRA, 29 U.S.C. §158(a)(1)). It is also a violation of labor laws to dominate or interfere with the formation or administration of any labor organization. (NLRA, 29 U.S.C. §158(a)(2)).
As part of the settlement, Barstool did not admit fault for violating the National Labor Relations Act, but it will notify employees of their right to unionize by email and physical postings. (Settlement Agreement, Case 31-CA-246638). Barstool will need to provide the Regional Director for the National Labor Relations Board written confirmation of the date of emailing and list of names and email addresses of employees. Id. Also, notices of federal labor rights will be displayed for at least 60 days in Barstool’s New York headquarters and its satellite offices in Dallas, Chicago, Los Angeles, and Watertown. Id. Barstool also agreed to delete a twitter account called Barstool Sports Union that was used as a ploy to uncover any employees that supported efforts to unionize. Id. Barstool will need to notify the Regional Director in writing what steps it has taken to comply with the settlement within 5 days, and again after 60 days, from the date of approval of the settlement. Id. Barstool also agreed that in the case of non-compliance with any of the terms of the settlement agreement and after 14 days’ notice from the Regional Director of such non-compliance without remedy, the Regional Director may issue a formal complaint against Barstool. Id.
The NLRB has increasingly scrutinized statements made by company executives on social media. (Eidelson, Bloomberg Law). Most recently, an Administrative Law Judge (“ALJ”) of the NLRB Division in San Francisco ruled in September 2019 that Tesla CEO Elon Musk violated labor laws with a tweet that suggested employees who chose to join a union would give up company-paid stock options. (Decision, Case JD(SF)-33-19). The ALJ’s order called for Tesla to offer reinstatement and back-pay to a fired, pro-union employee, and to revoke a warning issued to another union supporter. Id.Additionally, Mr. Musk had to attend a meeting held by Tesla at its assembly plant that gave notice to Tesla employees of NLRB’s conclusion that Tesla violated labor laws. Id.
The NLRB is limited in its ability to punish companies found to have violated labor laws. While the agency can require that companies reinstate and pay back wages to workers that were illegally fired or require social media posts to be deleted, it is not allowed to assess punitive damages or hold executives personally liable for violations. (NLRB, How We Work). Federal law allows managers and other agents of a company to criticize unions but restricts them from threatening to punish employees who want to organize a union, threatening employees with loss of jobs or benefits, or questioning employees about their union activities. Id.