Third Circuit Court of Appeals Decision Affects Permissible Speech on Social Media

November 2, 2022

This May, the Third Circuit Court of Appeals issued a ruling which reinforces permissible speech on social media.   The ruling stems from a June 2019 tweet from The Federalist, which is an online magazine operated by FDRLST Media, LLC.  Specifically, an executive officer posted to his personal Twitter account, stating:  “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” The tweet was in response to a report that the staff of another digital media company had walked off the job during labor negotiations.

The Federalist received an unfair labor practice complaint, filed by a Massachusetts resident who did not work for the company.  The complaint alleged that the tweet “threatened employees with reprisals and implicitly threatened employees with loss of their jobs if they formed or supported a union.” Although at least one employee viewed the tweet, there is no evidence that employees of the company were concerned with the post. In fact, two employees vouched in support of the tweet via affidavits that they found the tweet to be satirical and unthreatening. The employer’s executive officer also submitted an affidavit that he intended the tweet to be satire and to express his personal viewpoints on the current event.

The National Labor Relations Board (NLRB) issued a complaint against the employer for a violation of the National Labor Relations Act (“the Act”), which prohibits employers from “interfering with, restraining, or coercing employees in their exercise” of protected rights to organize, bargain, or participate in union activity. An employer is permitted to share anti-union views to employees, as long as they do not threaten employees with reprisals or promise them benefits for not unionizing. A threat in violation of the act requires the employer’s statement to mention consequences that would “coerce a reasonable employee” not to unionize.

An administrative law judge found that “a reasonable interpretation of the expression meant that working conditions could worsen or employee benefits could be jeopardized if employees attempted to unionize” and therefore determined that the tweet violated the Act. The employer appealed the ruling to the NLRB, who affirmed the decision. The employer then petitioned the Third Circuit Court of Appeals for review. The Third Circuit found in favor of the employer. The court noted that an employer’s actions must be examined “in light of all the existing circumstances” and that “context is an important part of language.” The Court looked to the history of labor strikes and evidence of antagonism at FDRLST media to determine the context of the tweet and deemed there was “no evidence any FDRLST Media employee perceived [the] tweet as a threat[.]”

In this case, the executive officer used his personal twitter account to promote the online magazine’s commentary, which was satirical in nature. There was no evidence that the executive officer communicated with employees in that manner, nor would he direct employees via Twitter. The Third Circuit determined that the NLRB “misconstrued a facetious remark as a true threat” and as a result, denied the NLRB’s petition for enforcement.

If you have questions or concerns regarding how the Third Circuit’s opinion could impact your social media presence,  please contact the qualified attorneys at Rock Fusco & Connelly.