WASHINGTON (Legal Newsline) - The publisher of a conservative online journal who joked on Twitter he would send his employees “back to the salt mine” if they attempted to form a union has been sanctioned by an administrative law judge with the National Labor Relations Board who said the tweet was “a threat of unspecified reprisal.”
In a June 6, 2019 tweet on his personal account, Ben Domenech, the co-founder and publisher of The Federalist, made light of a walkout by union employees at Vox Media by tweeting, “first one of you tries to unionize I swear I’ll send you back to the salt mine.” No one at The Federalist complained about the joke at the time but it drew the attention of Joel Fleming, a class action lawyer and frequent Twitter user himself, who filed a complaint with the NLRB over what he considered a labor violation.
Ruling yesterday, Judge Kenneth Chu agreed with Fleming. In a 10-page decision the judge said that even though no rational person would think they were in danger of being sent to an actual salt mine, the tweet could be interpreted by a “reasonable employee” as meaning they would be punished with “tedious and laborious work” if they tried to form a union. Coming at the same time as the Vox walkout, the judge ruled, “the tweet is reasonably considered as a threat.”
The Federalist will appeal the decision because it represents a dangerous expansion of labor law to include complaints about speech filed by people who have no connection to an employer and might have their own political axe to grind, said Adi Dynar, a lawyer with the New Civil Liberties Alliance, which represents the publication.
“The issue is the way a random person on the Internet who saw a tweet can use the apparatus of a federal regulatory agency to punish political viewpoints this random person doesn’t like,” said Dynar.
Important civil rights including the First Amendment right to free speech are implicated, Dynar said. Congress limited labor complaints to “aggrieved persons,” he said, including employees and labor unions. Two of The Federalist’s six employees filed affidavits, over the objections of the NLRB, saying they believed Domenech was joking. Yet Fleming, whose tweets frequently express pro-labor views, was able to pull Domenech and his publication into an expensive NLRB proceeding anyway.
The NCLA has intervened in numerous cases involving federal administrative law judges, who occupy an ill-defined space in the law between judges who derive their authority from Article III of the U.S. Constitution and administrators who operate under federal statutes. Administrative law judges are hired and overseen by federal agencies and only after exhausting administrative remedies can someone affected by their rulings appeal the decision to an independent federal judge.
An administrative law judge assigned to the case by the NLRB, ruling in favor of the agency he works for, “is the very definition of an administrative adjudication system rigged against the non-government litigant,” Dynar said. “The process itself can be an oppressive punishment.”
Chu’s order requires The Federalist to post a statement in its Washington offices explaining to employees their rights under federal law and stating the organization will not threaten them “with unspecified reprisal or otherwise discriminate” against union organizers.
The Federalist will appeal Judge Chu’s ruling up to the full NLRB board, which is operating with only three of its normal five members, all Trump appointees. If the decision is upheld, the publication can then appeal to federal court.