An appeals court has ruled that a conservative journalist’s joke on Twitter about why journalists should not unionize was protected speech, not an unprotected threat against pro-union workers, as the National Labor Relations Board had earlier ruled. The court’s ruling was at odds with claims made by liberal self-proclaimed “experts” in labor law. These “experts” claimed that the joke was supposedly unprotected, because federal agencies are entitled to extreme deference because of their “administrative expertise,” which supposedly allows them to detect a threatening dog-whistle in language that mere mortals would view as a joke.
The appeals court’s ruling was 3-to-0 against the NLRB, debunking claims by one self-proclaimed labor-law “expert” that the NLRB would find it “tremendously easy” to win the case against the conservative joke-teller. That “expert” claimed that it was “arrogant” and ignorant even to challenge the NLRB’s ruling against the joke. But the appeals court obviously did not agree.
In a significant win for common sense, a federal appeals court has found that sometimes a joke is just a joke, even when it is made by an employer and concerns workers’ union rights. The Third Circuit Court of Appeals has overturned the National Labor Relation s Board’s (NLRB) penalty against Federalist publisher Ben Domenech for “threatening” his website’s employees.
The board has long held that any comment, regardless of intent, by an employer that threatened workers for unionizing was a violation of the National Labor Relations Act (NLRA). The boss saying “I was just joking” was not a defense. The only thing that mattered was whether any employee could theoretically construe it as a threat. This absolutist position has resulted in many employers going silent during organizing bids for fear of crossing an invisible line.
Ben Domenech, publisher of the conservative online opinion journal the The Federalist, discovered this in June 2019 when he tweeted, “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” The tweet was in reaction to the liberal site Vox’s employees organizing.
The employees at The Federalist, all seven of them, saw this for the joke that it was. Among other telling details, The Federalist is an online magazine and does not run any salt mines. More relevantly, the seven workers were all conservatives like Domenech and had made no effort to form a union.
Domenech’s tweet got considerable outside attention, however, and a liberal labor lawyer with no connection to The Federalist or its employees filed an unfair labor practices complaint with the NLRB. The Board allows such third-party complaints. The intention of the practice is to allow labor activists to intercede on behalf of workers who might be afraid to speak up. In this case, the third party making the complaint was pretty clearly abusing the practice in an effort to harass Domenech.
None of this mattered to the NLRB. An administrative law judge found the comment violated the NLRA and the full Board upheld that. Domenech appealed it and the Third Circuit decided that, yeah, this was pretty ridiculous.
“The record contains no sign—indeed, no inkling—of any circumstance at FDRLST Media that leads us to conclude that a reasonable employee would interpret Domenech’s tweet as a veiled threat,” the court noted in its ruling. It added that the NLRB “went too far” when it opined that employees’ own interpretations of their employer’s conduct were irrelevant. Since the charge was filed “by an unrelated third party” a higher standard had to be applied as to whether the statement constituted a threat.