Barstool’s Portnoy Tweets Anti-Union Statements: What to Consider
On August 13, 2019, Dave Portnoy, the always loud and often controversial Founder and President of Barstool Sports, published a series of anti-union tweets, and even quoted a tweet from a union organizer and commented, “If you work for @barstoolsports and DM this man I will fire you on the spot.”[1] Portnoy also quoted a tweet from a labor lawyer and commented, “Anybody who hires this lawyer will be fired immediately and I will personally sue you for damages and back wages.”[2]
The back and forth started when, on August 12, Portnoy tweeted out a blog he had written in 2015 about now-defunct Gawker.com writers voting to unionize.[3] In it, Portnoy adopted much of the same view on unions as he did this year: “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. Nothing would please me more than to break it into a million little pieces.”[4] Union organizers and labor lawyers replied to the tweet, thus prompting Portnoy’s anti-union threats against Barstool employees.[5]
The tweets quickly garnered wide attention from media, politicians, and other Twitter commentators.[6] Congresswoman Alexandria Ocasio-Cortez promptly responded to the tweet, stating “If you’re a boss tweeting firing threats to employees trying to unionize, you are likely breaking the law & can be sued, in your words, ‘on the spot.’”[7] Congresswoman Ocasio-Cortez’s tweet resulted in even more media attention, so much so that she used the Twitter dispute in a fundraising e-mail to her supporters.[8]
This was music to the ears of Barstool, who quickly started producing new content in response. The company posted a YouTube video on August 14, in which employees acted out a union-organizing meeting complaining that Portnoy “gives us too many vacation days,” “makes us feel famous,” and one employee even complained that he “stuffed me in his private plane.”[9] Portnoy appeared on a cable news shows to challenge Ocasio-Cortez to a debate.[10] Portnoy claimed that as a result of the tweets and ensuing response, Barstool “had their biggest day ever.”[11]
The next day, labor lawyer David Rosenfeld filed a grievance with the National Labor Relations Board, a federal agency charged with protecting workers’ rights to organize unions, among other rights.[12] Rosenfeld charged that Barstool, “through its crazed president, Dave Portnoy, has threatened to discipline employees on account of Union and/or protected activity.”[13] As of this blog’s posting, Barstool’s only official response to the open NLRB case has been a motion to consolidate cases, filed on September 27, 2019.[14]
Portnoy and Barstool may argue that the tweets should be considered satire, and therefore protected speech under the First Amendment.[15] This would not be a stretch, given Barstool’s brand: unabashedly controversial and operating under the ethos that “everything should be funny.”[16] Further, Portnoy might argue that these tweets originate from Dave Portnoy the character, and not Dave Portnoy the employer. Are they one in the same, or more akin to Stephen Colbert’s over-the-top conservative character of the same name during his time with Comedy Central?[17] Should Portnoy’s tweets be read as coming from the loud-mouth, no holds barred, self-proclaimed anti-PC champion character he’s built for himself, or as the employer of hundreds of employees at an ever-growing media company? And does that make any difference?
Portnoy’s tweets, and the ensuing response, bring up a number of important policy questions. Should a media company be allowed to produce content including jokes about potential unionization? If so, does that change at all when the individual publicly making that joke is in fact the employer? Does it matter if any of the employees of that company take the joke seriously? These are all questions that the NLRB will have to consider as it assesses the claims against Dave Portnoy and Barstool Sports.
Footnotes
