David Rosenfeld, a labor lawyer and self-styled “paid troublemaker,” saw the tweets as good old-fashioned union busting. He went to work. His mission: extract an apology from the man who had threatened to fire “on the spot” any employee who so much as discussed unionizing at his company.
But Rosenfeld’s opponent, David Portnoy, the architect and provocateur in chief of the polemical and fratty media company Barstool Sports, was aggressively unapologetic. Rosenfeld is hoping the National Labor Relations Board, which is now investigating charges against Portnoy and Barstool, will change that.
On Tuesday, Portnoy posted his threat to Twitter, responding to a man offering assistance to Barstool employees who may be considering organizing.
“If you work for @barstoolsports and DM this man I will fire you on the spot,” Portnoy wrote.
— Dave Portnoy (@stoolpresidente) August 13, 2019
Rep. Alexandria Ocasio-Cortez, D-N.Y., and the AFL-CIO, the largest federation of unions in the country, condemned Portnoy’s comments, warning him they likely violated the 1935 National Labor Relations Act, the landmark law laying out workers’ rights and encouraging collective bargaining.
Portnoy was unfazed – gleefully defiant, even. Responding on Twitter to a user who wrote “I hope they unionize,” Portnoy said, “Me too. Just so I can crush it and reassert my dominance.”
The next day, Rosenfeld, a veteran attorney who has argued in front of the U.S. Supreme Court, filed a grievance with the NLRB, an independent federal agency charged with safeguarding the right to organize as unions. The charges triggered an investigation that will require Barstool to respond to Rosenfeld’s complaint and could force Portnoy to delete his tweet, apologize for it and assure his employees that he won’t punish them for unionizing.
In an interview with The Washington Post, Rosenfeld said he filed the charges “just to f–k with these idiots.”
“This guy was just being stupid making these comments,” Rosenfeld said, before referencing two other leaders whose public statements and shoot-from-the-hip tweeting styles have landed them in trouble. “It’s like Elon Musk, he just can’t keep his mouth shut. He thinks he can get away with it because [Donald] Trump does, but he won’t.”
Writing on behalf of his Committee to Preserve the Religious Right to Organize, Rosenfeld alleges in the complaint that Barstool, “through its crazed president, Dave Portnoy, has threatened to discipline employees on account of 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.”
On Friday, when reports of the investigation became public, Portnoy did indeed take to Twitter – but not for a mea culpa.
“So they are suing for a heart felt apology?” he asked. “Is that really what I just read? How about this? Go f–k yourself. Case dismissed.”
He added: “How soft do you have to be to sue for an apology?”
Traditionally, Rosenfeld said, employers found to be guilty of engaging in these sorts of unfair labor practices would have posted a notice at their workplace, assuring employees they wouldn’t face retribution for their collective-bargaining efforts.
But in the digital age, bosses have had to email these messages. Since the original comments were posted on Twitter, Rosenfeld said he hopes Portnoy will have to publish his apology there, to his nearly 1 million followers.
If Portnoy refuses, Rosenfeld said, the NLRB can issue an order and ask the court of appeals to hold him in contempt. A representative for the NLRB did not respond to a request for comment.
As of 7 p.m. Friday, Portnoy – whose history of controversy includes refusing to apologize after saying a 20-year-old female employee would be too ugly for the camera in five years – had remained truculent, responding to the NLRB charges with sarcasm and targeted GIFs.
Rosenfeld said Portnoy could avoid trouble altogether by preemptively tweeting his apologies.
“But,” the lawyer said, “it doesn’t look like he’s going to do that.”
The Washington Post’s Hannah Knowles and Michael Brice-Saddler contributed to this report.