WASHINGTON (Legal Newsline) - A National Labor Relations Board panel affirmed an administrative law judge’s ruling that the publisher of The Federalist newsletter violated federal labor law when he tweeted he would send any employee who tried to unionize the publication “back to the salt mine.”
The three-member panel, which included Chairman John Ring, a Trump appointee, rejected the arguments of The Federalist that publisher Ben Domenech was joking on his personal Twitter feed about the vote by Vox Media journalists to unionize when he made the offending tweet. The joke became a matter of federal enforcement after Joel Fleming, a class-action lawyer with no apparent connections to The Federalist, reported Domenech to the NLRB.
The NLRB board found Domenech’s tweet violated section 8(a)(1) of the National Labor Relations Act, which prohibits employers from doing anything “to interfere with, restrain, or coerce employees” over their rights to engage in collective action and unionize. The board rejected The Federalist’s argument no employee could see Domenech’s joke as anything more than a reference to the walkout and unionization vote at left-wing Vox, a competing publication.
Domenech tweeted on his personal account on June 6, 2019 after Vox employees staged a walkout that drove the company into negotiating a labor agreement. “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine,” he wrote.
Unchastened by the NLRB’s Nov. 24 ruling, Domenech immediately posted an advertisement for “The Federalist Salt Mining Co, T-Shirt” on his Twitter feed, saying “IT’S BACK BABY”.
The Federalist submitted affidavits from two Federalist employees who said they didn’t view the tweet as a threat. The NLRB fought hard to keep the affidavits out of the proceedings before administrative judge Kenneth W. Chu but the three-member board panel said it ultimately didn’t matter. The “subjective interpretations” of employees “are irrelevant” to determining whether Domenech violated the law, the board panel concluded.
“The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights,” the panel said.
Domenech and the Federalist are represented by the New Civil Liberties Alliance, a non-profit that frequently litigates over what it considers to be regulatory overreach. In a statement, the group said “the decision shows that NLRB lacks both common sense and a sense of humor.”
“It disregarded sworn employee statements saying that they perceived the tweet as just a joke,” the group said. “We look forward to vindicating FDRLST Media in the U.S. Court of Appeals.”
Lin, an administrative law judge employed by the NLRB, found that the tweet threatened Federalist employees with unspecified retaliation – obviously not being sent to a salt mine, since it would be impossible for him to enforce and there are none in the vicinity of Washington, D.C., anyway – and ordered him to remove the tweet and The Federalist to post labor regulations in its headquarters.
The NLRB panel upheld the penalty, including again ordering Domenech to delete the tweet.