The National Labor Relations Board (NLRB) has ordered Ben Domenech—publisher of the conservative website The Federalist, and a friend of mine—to take down a June 2019 tweet in which he joked about sending employees who wanted to unionize to work in "the salt mines." Domenech has refused, and the case is now making its way through the courts.
Domenech's tweet came in response to news that employees of Vox Media Inc. walked off the job in support of unionization. No one at The Federalist had publicly expressed any interest in unionizing, and two of the website's six employees filed affidavits attesting that they viewed the tweet as a joke. As far as I know, Domenech doesn't own any salt mines.
Kenneth Chu, an NLRB administrative law judge, nevertheless ruled that Domenech violated the 1935 Wagner Act, which prohibits employers from interfering with employees' unionization efforts. Domenech explains what happened in an article for The Wall Street Journal:
The NLRB proceeded to invade our publication, heedless of the freedom of the press. Members of my staff were subpoenaed to testify in New York, where none of them lived and we had no office. The NLRB attempted to subpoena all emails and communications between staff members going back years—including about editorial decisions, hiring decisions, and confidential sources during our coverage of the Russia-collusion hoax.
Help arrived in the form of the New Civil Liberties Alliance, a nonprofit set up by legal scholar Philip Hamburger that defends constitutional rights against overreach by the administrative state.
The NLRB proposed a settlement: I delete the joke, I post information on the rights of employees to unionize, and the complaint goes away. I said no.
That meant the NLRB's case against me would be adjudicated by an NLRB employee, Administrative Law Judge Kenneth Chu. As expected, we lost. 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.
The NLRB does not claim that anyone at The Federalist complained about Domenech's tweet. This entire action is the result of complaints filed with the NLRB by the leftist writer (and former NLRB attorney) Matt Bruenig and an attorney named Joel Fleming, both of whom acted based solely on the tweet. It's concerning that two individuals who have nothing to do with a company can assert on behalf of its employees that their employer has violated their rights, but this is the reality permitted under the Wagner Act's ambiguous, open-ended language.
Domenech is fighting the government's decision. "Eventually we'll get to a real court, where we'll be able to assert our rights and prove our case," he writes.
Bruenig, the original complainant, argues that Chu's ruling is in keeping with decades of legal precedent:
"I was just joking" is not an uncommon thing people say in response to unfair labor practice charges based on coercive statements. This is not usually tolerated as a defense because, as the Eight Circuit (326 F.2d 910) wrote quite elegantly in 1964, "executives who threaten in jest run the risk that those subject to their power might take them in earnest and conclude the remarks to be coercive."
Even as far back at 1977, NLRB joke cases (231 NLRB No. 40) were repeating boilerplate like "it is well established that the coercive and unlawful effect of a statement is not blunted merely because interrogations of, warnings to, or disparaging statements about union adherents are accompanied by laughter or made in an offhand humorous way." In that case, the manager had asked some workers why they were wearing union buttons, and when they replied "because everyone else is," the manager said "I'll be damned if y'all can't fuck up a wet dream," which caused the workers to laugh. Following precedent, the NLRB ruled that the manager's statement violated the [Wagner Act].
That there's a long history of judges punishing employers for dumb jokes makes the matter more concerning, not less. In any case, Chu's ruling contains a number of questionable statements: He held that the tweet "had no other purpose except to threaten the FDRLST employees with unspecified reprisal." This is nonsense: Domenech is the only person who knows why he sent the tweet and what effect he intended it to have, and he has said he sent it as a joke. Chu's assessment that the tweet would make a "reasonable" Federalist employee feel coerced is at odds with the fact that none of them say they felt coerced. Chu is insisting that he knows more about Domenech's internal thought processes than Domenech does, and more about The Federalist's virtual office climate than the people who work there.
The free speech implications of the government's position are obvious. The Wagner Act was intended to prevent employers from hampering unionization efforts. But if mere satirical condemnations of unionization are impermissible, then the First Amendment rights of employers and managers don't seem to exist. That Chu's ruling reflects a long history of legal precedent doesn't make those earlier rulings worth protecting.