06/17/2025: Washington Post's Termination of Tweeting Reporter Did Not Violate NLRA
An ALJ application of Oncor.
WP Company LLC D/B/a the Washington Post, JD-53-25, 05-CA-304208 (ALJ Decision)
This NLRB case involves the 2022 firing of Washington Post reporter Felicia Sonmez following a series of tweets she posted over five days in June 2022. The events began when Sonmez objected to a sexist joke retweeted by her colleague David Weigel on June 3, 2022. Sonmez initially raised the issue on an internal Slack channel and then tweeted publicly about it.
The Post acted quickly, having Weigel remove the retweet and apologize within hours. The following Monday, Weigel was suspended for 30 days. However, Sonmez continued tweeting extensively about the incident and its aftermath for several days, targeting both the Post and another colleague, Jose Del Real, who had suggested she show more compassion toward Weigel.
Over the five-day period, Sonmez sent hundreds of tweets criticizing the Post's handling of the situation, claiming the Post was allowing sexist behavior, and suggesting the Post was responsible for the online harassment she received in response to her tweets. Some of these statements were made after Sonmez knew the Post had condemned the retweet and disciplined Weigel. Throughout this period, Post editors received numerous complaints from newsroom staff about Sonmez's ongoing Twitter activity, which they described as creating distress in the workplace.
On June 9, 2022, the Post fired Sonmez. The Washington-Baltimore News Guild filed an unfair labor practice charge with the NLRB, alleging Sonmez was fired for engaging in protected concerted activity in violation of Section 8(a)(1) of the National Labor Relations Act.
In his analysis, Administrative Law Judge Robert A. Giannasi applied the two-pronged test from the Oncor case to determine whether Sonmez's Twitter activity constituted protected concerted activity:
First, whether the communication was related to an ongoing labor dispute between employees and employers
Second, whether the communication was "so disloyal, reckless or maliciously untrue" as to lose the protection of the Act
The judge concluded that Sonmez's Twitter activity failed the first prong because it was not related to a labor dispute. Rather than addressing workplace conditions, much of her tweeting appeared to be personal commentary on sexism in general and her own experiences. The judge noted that Sonmez herself had explained that she used Twitter "as a platform to help others feel less alone and to help others feel seen and heard" regarding online misogyny directed at women journalists.
Furthermore, the judge found that even if her tweets had been related to a labor dispute, they would have lost protection under the second prong because they were disloyal, reckless, and disparaged the Post's reputation. Specifically, Sonmez repeatedly and falsely claimed the Post had done nothing about Weigel's retweet, even after she knew the Post had condemned it and disciplined Weigel. She also wrongly blamed the Post for the online harassment she received.
The judge concluded that Sonmez's firing did not violate the Act and dismissed the complaint in its entirety.
Significant Cases Cited
NLRB v. Local Union No. 1229, IBEW, 346 U.S. 464 (1953): Established that communications in connection with labor disputes are not protected if they amount to a "public disparaging attack" on the employer's product or business policies.
Oncor Electric Delivery Company, LLC, 373 NLRB No. 80 (2024): Set forth a two-pronged test to determine whether communications with third parties are protected concerted activity.
MikLin Enterprises, Inc. v. NLRB, 861 F.3d 812 (8th Cir. 2017): Clarified that "malicious motive" is not required for communications to lose protection under the disloyalty standard.
Wright Line, 251 NLRB 1083 (1980): Established the causation test for cases involving alleged discriminatory discipline, requiring proof that the employee engaged in protected activity.
Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151 (2014): Defined protected concerted activity as activity engaged with or on the authority of other employees to improve terms and conditions of employment.
Tootsie's Entertainment LLC, 10-RC-365430 (Regional Election Decision)
In this case, the Tennessee Security Union sought to represent a unit of security officers and security leads employed by Tootsie's Entertainment LLC, a multi-level bar and restaurant with live entertainment in Nashville, Tennessee. The threshold issue was whether Security Lead Frank Whitfield, who filed the petition on behalf of the union, was a supervisor under the National Labor Relations Act.
Tootsie's employs approximately 31 armed and unarmed security officers, four security leads, one security manager, and one director of security. The four security leads were hand-selected by Security Manager John Sanchez. Whitfield was one of two security leads who worked the night shift.
Regional Director Matthew J. Turner analyzed whether Whitfield possessed any of the supervisory indicia enumerated in Section 2(11) of the Act. After examining the evidence, the Director found that security leads, including Whitfield, were able to discipline and/or suspend employees by sending them home without pay. Additionally, security leads made work assignments based on independent criteria and judgment. As evidence, the Director cited an incident where Whitfield moved an underperforming security officer from the front door without first checking with Security Manager Sanchez.
The Director determined that security leads wielded this authority independently and in the interest of the employer. Consequently, he found that security leads, including Whitfield, were supervisory employees under the Act. Since supervisors cannot file representation petitions under established Board precedent, the Director dismissed the petition.
The Director cited several Board decisions establishing that a petition filed by a supervisor cannot be processed. In these cases, the Board held that it could not certify an organization as a representative of employees when the organization is incapable of bargaining at arm's length with the employer.
Significant Cases Cited
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Established the three requirements to prove supervisory status under Section 2(11) of the Act.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Clarified that independent judgment must involve discretion rising above "routine or clerical" tasks.
Douglas Aircraft Co., 53 NLRB 486 (1943): Held that the Board cannot certify an organization as representative when it is incapable of bargaining at arm's length with the employer.
Brunswick Pulp & Paper Co., 152 NLRB 973 (1965): Ruled that a petitioner controlled by supervisors is not qualified to serve as a collective-bargaining representative.
Kennecott Copper Corp., 98 NLRB 75 (1952): Found that supervisors cannot act as representatives of employees to decertify a union or represent employees for purposes of collective bargaining.