Skip to main content

One to Keep An Eye On: FDRLST Media, LLC (NLRB)


As with many employment and labor law related cases (and bills) being litigated around the country, there are always a few that stand out.  This is one to keep an eye on.


In April, an Administrative Law Judge (“ALJ”) issued a ruling in FDRLST Media, LLC which addressed whether an executive of a company that sent out a threatening tweet aimed at the company’s employees violated the National Labor Relations Act (“NLRA”).

In the case, Ben Domenech (“Domenech”) serves as the Executive Officer of FDRLST Media, LLC (“FDRLST”).  Domenech sent out a tweet in response to a story about workers at another company staging a walkout.  In his tweet, Domenech stated “FYI: @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”  Unsurprisingly, an unfair labor practice charge followed, alleging this tweet violated Section 8(a)(1) of the NLRA.

As readers are likely aware, Section 7 of the NLRA provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations...”  Section 8(a)(1) provides it is an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA.  The test for whether Section 8(a)(1) has been violated is “whether the statements or conduct have a reasonable tendency to interfere with, restrain, or coerce union or protected activities.”  Of note, the test for interference, restraint, or coercion dos not turn on the employer’s motive or whether the coercion succeeded or failed.  

In the decision, ALJ held that Domenech’s tweet violated the NLRA, because the threat (even if made in a joking manner) could violate the NLRA.  Relying upon precedent, the ALJ pointed out that a reasonable interpretation of the tweet could be that working conditions would worsen or employee benefits would be jeopardized if a union were formed.  Interestingly, the ALJ disregarded two affidavits that FDRLST produced from two employees that stated they found the tween satirical and comedic in nature.

Never fear though, FDRLST has filed a motion with the NLRB asking them to review (and overturn) the ALJ’s decision.  That motion was only filed on June 19th, so I suspect it will be some time before we know what the NLRB will do here.  But in the meantime, employers (and supervisors), be careful what you post on social media or put in a text.  As the ALJ’s decision recognizes, even if a tweet is meant to be a joke, that does not mean there is no potential violation of the NLRA.


For a copy of the ALJ’s decision:  https://apps.nlrb.gov/link/document.aspx/09031d45830af141

For a copy of FDRLST’s motion filed with the NLRB:  

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per
Post a Comment
Read more