Posted in Employment and labor

Can a tweet be an unfair labor practice? On November 10, 2021, the Third Circuit Court of Appeals entertained oral arguments to determine just that. The tweet at issue: “[F]irst one of you tries to unionize I swear I’ll send you back to the salt mine.” According to the National Labor Relations Board (“NLRB”), this tweet, penned by the publisher in charge of an online magazine, violated sections 7 and 8 of the National Labor Relations Act (“NRLA”).

Section 7 of the NLRA grants employees the right to self-organize and to form, join, or assist labor organizations. Section 8 prohibits interfering with, restraining, or coercing employees from exercising their section 7 rights.

In this case, the NLRB argued that “sending employees back to the salt mine,” while not a literal threat, did threaten to punish employees with unfavorable work or retaliatory treatment if they attempted to unionize. The publisher, however, maintained the tweet was a joke and its employees were not actually threatened. According to the NLRB, the publisher’s intent is irrelevant if his actions are found to have an objectively reasonable tendency to interfere with, restrain, or coerce protected activities.

The oral arguments at the Third Circuit focused on two issues: (i) whether the NLRB erred in taking the case in the first place, and (ii) whether there are First Amendment concerns over issuing sanctions for a tweet that was arguably a joke.

First, the web publisher claimed that the NLRB erred in taking the case because the individual who filed the initial charge with the NLRB had no connection to the web magazine. The NLRB argued that both Supreme Court and Third Circuit precedents are “crystal clear” that a charging party’s relationship to the dispute does not matter; however, the Court seems undecided on that issue.

Second, the Court pressed the NLRB to explain how the tweet could be interpreted as an actual threat rather than a joke. For its part, the NLRB maintained the two are not mutually exclusive and a joke could still have an objectively reasonable tendency to coerce. Again, the Court seemed uncertain, expressing doubt as to how the Court should interpret the NLRB’s power to police whether a statement made over social media is an actual threat and thus illegal, or a joke not worthy of sanctioning by the NLRB.

Although the Third Circuit has yet to publish a decision, the judges expressed particular concern over the First Amendment issue raised. Although a decision in favor of the NLRB could grant the NLRB expansive power to determine whether statements made over social media should be sanctioned regardless of an actual threat, a decision in favor of the web magazine could allow some employers to breathe a small sigh of relief that the NLRB will not challenge them for tweets.

Special thanks to Kelly Lin for assisting with the drafting of this post.