While most employers are perfectly happy to avoid unwanted scrutiny from the National Labor Relations Board (“NLRB”), one high profile employer made news recently by openly courting the agency’s attention, not to mention starting a public fight with a congresswoman along the way. The company in question is Barstool Sports, who appear to really embrace the idea that all publicity is good publicity. Barstool Sports is a Boston-based internet media company focused primarily on sports content. Founder Dave Portnoy is the public face of the company, although he sold a majority interest to a media holding company in 2016. Portnoy’s public image is that of an unapologetically controversial figure, although, as with most pop culture figures, it is difficult to know how much of that is real and how much is a character. Either way, Portnoy recently made news by speaking out about unionization in digital media.
Portnoy’s recent comments aren’t actually anything new. In response to an ongoing unionization campaign at an unrelated sports commentary website, the Ringer, Portnoy resurrected comments he made in 2015 in response to unionization efforts at the website Gawker. Gawker’s newsroom eventually unionized into the Digital Writers Union, becoming the first website newsroom to do so. Portnoy recently tweeted a link to the blog piece he wrote at the time, in which he stated he hoped his employees would unionize so that he could “break their little union to smithereens.” Admittedly, if you read a bit further the message is clearly tongue-in-cheek, as Portnoy states “You think you deserve health insurance? You think you deserve to work without squirrels running around the office?” Barstool employees are reported to receive health insurance though little information was available about the squirrel situation. Many failed to find humor in these comments.
One who responded quickly was labor lawyer David Rosenfeld who retweeted Portnoy with the message that any Barstool employees interested in unionizing should message him. Portnoy ran with that, noting that if any employee did so he would “fire [them] on the spot.” He later threated to sue any employee who hired the attorney for “wages and damages.” Many, including unions and pro-labor lobbying organizations, felt the comments crossed a line. The AFL-CIO union certainly thought so, rebuking Portnoy with a reminder that the National Labor Relations Act (“NLRA”) prohibits employers from “interfering with the formation or administration of any labor organization.” Perhaps unsurprisingly, the NLRB has now announced a probe into whether Portnoy’s comments constitute an illegal effort to discourage unionization. Rosenfeld, a self-described “paid troublemaker,” filed the NLRB complaint.
Soon thereafter, Representative Alexandria Ocasio-Cortez (D-NY) joined the debate, tweeting at Portnoy “if you’re a boss tweeting firing threats to employees trying to unionize you are likely breaking the law and can be sued, in your words, ‘on the spot.’” She also claimed, “ALL workers in the US have the protected freedom to organize.” Portnoy responded by calling the Representative “an idiot,” and challenged her to a debate. No details on a potential debate have been forthcoming.
Of course, it is worth noting that not “all” employees in the U.S. are covered by the protections of the NLRA. Additionally, the NLRA does not provide for an individual cause of action against an employer accused of interfering with unionization efforts, so Portnoy is unlikely to be sued “on the spot.” Instead, an employee would have to file an unfair labor practice charge with the NLRB, who could investigate and determine what administrative action, if any, it wished to pursue.
Stepping back from the media circus aspects of this dispute, there are interesting legal issues involved. First, Portnoy’s comments, both in 2015 and presently, were not targeted at a specific campaign to organize his employees. In fact, Barstool’s business model makes it inherently less likely that its employees would unionize. As opposed to the Ringer, which maintains a more traditionally centralized workforce to produce its content, Barstool features a model where individuals around the country produce content focused on their local sports franchises. It may be that such distantly located employees would be less likely to consider organizing. However, even if they wished to do so, federal labor law sets certain limits on the ability of geographically diverse employees attempting to organize into a single union bargaining unit. Moreover, many of these remote contributors may not be employees at all, but rather independent contractors. Recent NLRB decisions have affirmed that independent contractors are afforded greater flexibility in their schedules and the terms of their work, and are not covered by the NLRA.
That said, Portnoy’s comments would be legally inadvisable if a formal organizing petition is filed with the NLRB. The Union involved would then presumably file an unfair labor practice charge. Does that mean Portnoy is in the clear? Maybe, but maybe not. Beyond the instant “probe” by the NLRB, if Barstool employees seek to unionize in the future, these comments could be used against the company if disputes arise. If there are unfair labor practices alleged during the campaign – as is quite common – his comments might well be used against the company as evidence of anti-union animus. If the company found itself defending against an unfair labor practice charge, this the NLRB could use that animus to decide against the company where it might otherwise not. Of course, the context of the comments and Portnoy’s bombastic character might allow him to argue that the whole thing was a bit, an act (squirrels, anyone?). However, most employers wouldn’t wish to rely upon the NLRB to have a sense of humor about such things.
Overall, this should serve as a reminder of the delicate nature of employer-union relations, even if the employer’s employees have never considered organizing. It is legal – and often advisable – for an employer to let non-union employees know that it does not wish for them to unionize and values having a direct relationship with them over the added costs, financial interests, and complexities of union intermediaries. It is not legal to threaten employees who are considering unionizing with termination or other retaliatory measures. The risks of mishandling these communications during an organizing campaign are significant.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including all aspects of labor relations for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.