PHILADELPHIA (Legal Newsline) - Saying federal labor regulators had “lost the forest for the trees,” an appeals court threw out unfair-labor charges against the publisher of a conservative newsletter who joked on his personal Twitter account that he would send any employees who tried to form a union “back to the salt mine.”
The day after publisher Ben Domenech posted his satirical tweet, Joel Fleming, a Massachusetts class-action lawyer, filed an unfair labor practice charge against FDLRST Media, the owner of The Federalist magazine. After an investigation, the National Labor Relations Board affirmed an administrative law judge’s ruling that Domenech had violated Section 8(a)(1) of the National Labor Relations Act, which prohibits employers from discouraging union activity.
Domenech and the Federalist appealed, represented by the New Civil Liberties Alliance, a non-profit fighting what it considers to be unconstitutional bureaucratic overreach. And in a May 20 decision, the Third Circuit Court of Appeals reversed the NLRB order, agreeing that reasonable employees couldn’t have believed Domenech’s joke was an actual threat.
“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,” the appeals court ruled, in a decision by Judge Thomas Hardiman. “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.”
Domenech and the NCLA had asked the court to go further and reject the idea third parties like Fleming, a securities class action lawyer with no known ties to the Federalist, from filing unfair labor charges against a company. Fleming wasn’t an “aggrieved party” under federal law, they argued. But a majority of the three-judge panel ruled that the law doesn’t specify who can file a charge, only that the NLRB only can act when a charge has been filed by someone.
“The charging party serves as an `informer’ and need not demonstrate any personal injury to file a charge,” the Third Circuit said, citing Supreme Court precedent.
Judge Paul Matey would have gone further and blocked Fleming’s charge in the first place.
“In its haste to join the tedious chorus of disapproval against whatever disfavored view has most recently appeared somewhere on the internet, the Board shelved serious supervision of the protections for America’s employees,” Matey wrote in a concurrence. “The best reading of the NLRA trims the NLRB’s jurisdiction and prevents unaffiliated parties from searching the internet for wisecracks to transform into workplace violations that unleash the NLRB’s sweeping power.”
FDRLST Media filed affidavits from two of its six employees who said they viewed their boss’s tweet as a joke, which the administrative law judge admitted into evidence over the government’s objections. The Third Circuit said the ALJ and the board apparently ignored what employees believed and pressed ahead with its own, illogical interpretation that Domenech literally was threatening to send his employees to a salt mine.
“The tweet’s suggestion that these employees might be sent `back’ to work in a `salt mine’ is farcical,” the court ruled. “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 ofthe tweet alone, we cannot conclude that a reasonable FDRLST Media employee would view Domenech’s tweet as a plausible threat of reprisal.”