This story about the NLRB going after the Federalist over a tweet is outrageous

This story about the NLRB going after the Federalist over a tweet is outrageous

It was a joke on Twitter, an obvious one, but a left-wing activist decided it was a violation of the law and made it into a federal case which took nearly three years for the courts to set straight.

The whole thing started in 2019 when employees at Vox staged a walkout:

More than 300 Vox Media employees staged a walkout on Thursday as staffers and management failed to come to an agreement for a union contract after more than a year of negotiations.

The walkouts affected Vox Media’s group of popular websites – such as Vox, SBNation, The Verge, Eater, Recode, Curbed, and others – and some were not publishing new content on Thursday.

“Our unit members are taking their sites dark today to show management how important these issues are to us,” tweeted the account for the Vox Media Union.

Ben Domenech, publisher of the Federalist, found it amusing that a left-leaning, pro-union website was being shut down over union troubles and he posted a joke about it on Twitter:

No one at the Federeralist wanted to form a union or was trying to form a union. In fact, as Domenech explained, they thought the tweet was funny. But that didn’t stop a left-wing activist from turning the matter into a federal case.

Although Twitter leftists were enraged, my employees were amused. They joked about selling branded salt-shakers and writing sympathetic vignettes about union rebels from Federalist salt mines.

Then things took an unfunny turn. The National Labor Relations Board informed me that the leftist writer Matt Bruenig had filed a formal complaint about my tweet. He withdrew it, but Joel Fleming, a Massachusetts lawyer, filed another.

Mr. Fleming alleged I had violated Section 8(a)(1) of the Wagner Act, which states that “it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7”—namely the rights “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Employees at the Federalist were subpoenaed and the NLRB also tried to get copies of all of the company’s internal emails going back years. Fortunately, a nonprofit group called the New Civil Liberties Alliance stepped up to defend the publication. At that point the NLRB offered a deal: Delete the tweet and publish some information about union organizing and the complaint would go away. Domenech refused and the case went before an Administrative Law Judge for the NLRB who agreed with the board’s novel theory of the case:

The board called no witnesses. It submitted my tweet and printouts of Federalist articles and asserted we were not a publication but an “anti-union website.”

The government lawyer claimed that “the editorial positions of the website are reasonably . . . understood as Mr. Domenech’s own,” even though we publish thousands of conflicting opinions under various bylines. Federalist employees filed affidavits stating they viewed my tweet as a joke. Mr. Chu dismissed their opinions as subjective and irrelevant.

Eventually the case made its way to the Third Circuit and yesterday a panel of judges overturned the decision of the administrative law judge by noting that the tweet was obviously a joke and not seen by anyone as a threat: [emphasis added by Ben Domenech]

When considering an alleged unfair labor practice, an employer’s conduct must be examined “in light of all the existing circumstances.” Wheeling-Pittsburgh Steel Corp. v. NLRB, 618 F.2d 1009, 1020 (3d Cir. 1980) (emphasis added) (citations omitted); see also NLRB v. Va. Elec. & Power Co., 314 U.S. 469, 479 (1941) (The Board’s finding of an unfair labor practice must be based “upon the whole course of conduct revealed by [the] record.”). Context is an important part of language, and that’s especially true where, as in this case, pure speech is at issue.

The ALJ found that Domenech’s tweet was “an obvious threat” that “had no other purpose except to threaten the FDRLST [Media] employees with unspecified reprisals.” FDRLST Media, 370 N.L.R.B. at 5. The Board agreed. In adopting the ALJ’s finding, the Board disclaimed any reliance on the tweet’s timing or The Federalist’s editorial content, leaving only the words of the tweet, devoid of any context, as support. But the Board erred when it disregarded relevant contextual evidence. ImageFIRST, 910 F.3d at 736 (citation omitted). Even more problematic than the timing and editorial content the Board ignored are the circumstances surrounding the tweet that the Board and the ALJ never considered. Had the Board considered the tweet’s full context, it could not have concluded that a reasonable FDRLST Media employee would view the tweet as a threat of reprisal.

For starters, FDRLST Media is a tiny media company. Its six employees (not including Domenech) are writers and editors. The tweet’s suggestion that these employees might be sent “back” to work in a “salt mine” is farcical. The image evoked—that of writers tapping away on laptops in dimly-lit mineshafts alongside salt deposits and workers swinging pickaxes—is as bizarre as it is comical. So from the words of the tweet alone, we cannot conclude that a reasonable FDRLST Media employee would view Domenech’s tweet as a plausible threat of reprisal….

Humor is subjective. What is funny to a fisherman may be lost on a farmer. A quip about New England winters is unlikely to get a laugh in Alaska. The propensity for jokes to fall flat for want of context or audience understanding has given rise to idioms like “I guess you had to be there” and “too soon?”

Excluding context and viewing a statement in isolation, as the Board did here, could cause one to conclude that “break a leg” is always a threat…

Here, the Board spent its resources investigating an online media company with seven employees because of a facetious and sarcastic tweet by the company’s executive officer. Because the Board lost the forest for the trees by failing to consider the tweet in context, it misconstrued a facetious remark as a true threat. We will accordingly grant FDRLST Media’s petition, set aside the Board’s order, and deny the Board’s petition for enforcement.

In addition to brushing back the ALJ decision in this case, the judges also suggested the National Labor Relations Act’s overly-broad power needed to be restrained to prevent cases like this one launched by a “politically-motivated busybody.”

The NLRA is remarkably broad in scope and power. Its jurisdictional provision, written in the passive voice, places no limits on who may file a charge. The Supreme Court has recognized—and has done nothing to cabin—this capacious authority. So the circuit courts of appeals (including this one) have consistently upheld the Board’s rule that “any person” may precipitate an unfair labor practice investigation. Unfortunate as it may be, the Act as written and interpreted empowers a politically-motivated busybody as much as a concerned employee or civic-minded whistleblower.

As for the politically-motivated busybody who started all of this, Matt Bruenig, he is refusing to take the L. Dan McLaughlin, who had argued with him about the case in 2020 is enjoying the moment anyway.

Here’s a video of Ben Domenech describing the case.

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