On January 27, 2020, a complaint was filed with the National Labor Relations Board (NLRB), alleging that Barstool Sports “engaged in and is engaging in unfair labor practices within the meaning of section 8(a), subsections (1) of the National Labor Relations Act.” While the complaint is devoid of facts regarding Barstool’s alleged violation(s), it is suspected that the unfair labor practices took place on January 22, 2020, during Episode 22 of The Kirk Minihane Show, a popular Barstool Sports podcast.
During the podcast, Minihane said, “unions are the worst” and made other derogatory remarks about a notice he had received of Barstool Sports’ pledge not to interfere with workers’ rights to organize. It is likely that the referenced notice came from another incident with the NLRB that Barstool Sports just recently settled. The previous incident took place in August 2019 when Barstool Sports co-founder David Portnoy wrote several anti-union tweets and reposted a 2015 anti-union blog.
In the 2015 blog, Portnoy wrote, “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. Nothing would please me more than to break it into a million little pieces.” In August 2019, Portnoy tweeted “If you work for @barstoolsports and DM this man [a union member] I will fire you on the spot” and “[a]nybody who hires this lawyer will be fired immediately and I will personally sue you for damages and back wages.” Barstool Sports also created a fake Twitter account called Barstool Sports Union that attempted to catch Barstool Sports employees seeking to unionize.
On December 2, 2019, Barstool Sports reached a settlement with the NLRB where the company was forced to delete the August 2019 tweets, remove other anti-union material, and notify employees of their right to unionize by email and physical postings. Barstool Sports did not, and was not required to, admit fault for violating the National Labor Relations Act.
Nearly two months after the December 2, 2019 settlement, it appears that Minihane’s comments may have Barstool Sports in hot water with the NLRB again. The complaint filed by the NLRB states that Barstool violated Section 8(a)(1) of the National Labor Relations Act. Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees” in their exercise of their right to unionize.
The NLRB lists several examples that are considered unfair labor practices, including threatening employees with adverse consequences if they support a union, engage in union activity, or select a union to represent them; coercively question employees about their own or coworkers’ union activities or sympathies; prohibit employees from talking about the union during working time; spy on employees’ union activities; and convey the message that selecting a union would be futile.
It will be interesting to see how the NLRB handles this new matter with Barstool Sports considering how the recent December 2, 2019 settlement dealt with largely the same issues.