National Labor Relations Board to Investigate Barstool Sports Founder's Tweets

Dave Portnoy_Sirius XM Roof - Publicity - H 2016
Courtesy of Barstool Sports

Dave Portnoy, founder of Barstool Sports, will have to answer to a charge with the National Labor Relations Board that his recent tweets amounted to an illegal effort to discourage his employees from joining a union.

"Heard @ringer employees want to unionize," wrote Portnoy on Aug. 12 in a reference to Bill Simmons' media group. "Little refresher how I feel about unions."

Portnoy linked to a post he authored four years ago upon a vote by Gawker staffers to unionize. The post stated, "BAHAHA! I hope and I pray that Barstool employees try to unionize. I can’t tell you how much I want them to unionize. Just so I can smash their little union to smithereens."

Rafi Letzter, a staff writer at Live Science, then tweeted out, "If you work for Barstool and want to have a private chat about the unionization process, how little power your boss has to stop you, and how you can leverage that power to make your life better: my DMs are open."

Portnoy responded by tweeting, "If you work for @barstoolsports and DM this man I will fire you on the spot."

The exchange gathered notice.  Alexandria Ocasio-Cortez expressed how this was "likely breaking the law" while Donald Trump Jr. opined, "Picking a fight with @stoolpresidente and @barstoolsports is probably the biggest mistake @AOC has ever made on Twitter."

The situation has now escalated to action before a federal agency.

A group calling itself the Committee to Preserve the Religious Right to Organize has filed charging papers at the NLRB against Barstool Sports, which is majority owned by The Chernin Group.

According to a copy of the charge, obtained by The Hollywood Reporter, "Within the last six months, Barstool Sports, affiliated with the Chernin Group, through its crazed president, Dave Portnoy, has threatened to discipline employees on account o[f] Union and/or protected activity. The Charging Party seeks as relief that Mr. Portnoy be required to tweet and otherwise publicize his severe and sincere apology and to post the appropriate Notice on the public website. He should be required to read the Notice to all employees and make a public announcement about the Notice on his media locations of any nature."

The NLRB has acknowledged filing and sent a letter to Barstool Sports for response. The NLRB enforces the National Labor Relations Act. Sections 7 and 8(a)(1) of the NLRA protect employees' rights to join or form a union and Sections 8(a)(1) & (3) prohibit interfering with, restraining, coercing or firing an employee in regard to those rights. Another provision, Section 8(a)(4), prohibits retaliation against an employee for filing charges or giving testimony. Meanwhile, a lesser known portion of Section 7 protects even non-unionized  employees' rights to engage in "concerted activities" (group activities) for the purpose of "collective bargaining or other mutual aid or protection."

As a result of the charge, NLRB investigators are tasked with gathering evidence and taking affidavits from parties and witnesses. A decision on the merits of the charge would likely come in the next few months unless the charges are withdrawn. If there's sufficient evidence to support a charge, the NLRB attempts to work out a settlement, and if it can't, files a complaint, which would lead to a hearing before an Administrative Law judge. At that point the NLRB becomes the representative for the charging party, and if it gets that far, an NLRB Regional Director could petition a federal court for an injunction.

Jonathan Handel contributed research.

8/16/2019 2:57 p.m. added NLRA information