Free Speech

The National Labor Relations Board Wants To Punish a Conservative Publisher for a Joke About Unions

The Federalist's Ben Domenech is fighting the government in court.

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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.

NEXT: Ninth Circuit Refuses to Reconsider Ruling that Mandating Union Organizer Access to Employer Property is not a Taking - but Eight Judges Dissent

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  1. Quick serious question, how come forced unionization isn’t concidered racketeering?

    1. If you ask that again, I’ll have your legs broken.

      /union representative

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      2. Its kind of funny how an employer saying that can be acted against but a union organizer saying it *receives government protection*.

  2. NLRB Administrative Law Judge – in simple terms, a union plant, not “a real judge”. If Chu was a real judge, he’d understand what legal standing is and the case would be thrown out based on that alone, and questions of intent would be moot.

    1. No offense Bluwater, but you don’t seem to know what standing is. The people bringing the complaint had standing to do so.

      Should they have it? IMO, no. But they did because of the way the law was crafted.

      There’s how we think the law should be and there is how the law is. Rarely are they the same thing.

  3. How is this Wagner Act constitutional? Why should union organizing have special protections?

    1. because otherwise, the democrats aren’t going to be able to fund their campaigns. So shut up why don’tcha if youse knows what’s good for ya.

    2. Threat of court packing comes to mind given the time period.

  4. How is this Wagner Act constitutional? Why should union organizing have special protections?

    No doubt in the same way that a union-organized secondary boycott or secondary picketing are not considered “free assembly.”

    I don’t think this was even a close call by the NLRB administrative judge. And note that there was no punishment; he was merely ordered to take down a tweet. Unfortunately, if Domanech had fired one of his employees for protected union activity, there likewise would have been no punishment. That’s why so many companies violate Federal labor law when faced with an organizing campaign – because the consequences for breaking the law are negligible.

    1. I don’t think this was even a close call by the NLRB administrative judge.

      Right? The legal doctrine of fuck you that’s why has stood the test of time for all these decades.

    2. “when faced with an organizing campaign”

      Like the one at the Federalist?

      “a union-organized secondary boycott or secondary picketing are not considered “free assembly.””

      They’d be free assembly in the context of a free labor market, where you’re free to work for whoever’s willing to hire you, and for nobody else.

    3. That entire process was harassment (as there are no labor actions at The Federalist), especially the blanket subpoenas, and the Administrative Judge is running a kangaroo court rubber stamping the Board’s wants. Where exactly is the labor relations exception to freedom of speech and press in the text of the 1st Amendment. The actual words are “no law”. It is hard to see how the Wagner Act could authorize what happened here and be good under a functional 1st Amendment.

      1. But Congress did “pass no law”. What’s the beef?

  5. legal scholar Philip Hamburger

    Any relation to Neil?

  6. “As far as I know, Domenech doesn’t own any salt mines.”

    Well I hope he owns a monocle factory or something then, how else is he supposed to oppress the proletariat?

    1. I just assumed this was more of Robby’s civil (i.e. not) libertarianism dogwhistling.

      You don’t own the salt mines personally, you keep them in a ‘blind’ trust so that the illegal orphan labor doesn’t trace back to you.

      1. This makes sense but takes a lot of the fun out of it. Part of being a baron is that the orphans know you’re personally oppressing them, if it’s just some faceless organization oppressing them we’ve taken the personal touch out of it.

  7. 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.”

    Oh, FFS! “‘Take down a tweet’? You mean, like with a judo move or something?”

  8. You can’t be forced to be an employee of an employer you don’t want to work for. We even had a war over that issue.

    Now, what about the rights of employers not to have employees they don’t want?

  9. 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.

    That’s statism for ya.

    1. Well, Chu *is* an expert. Perhaps he *does* know. Better err on the side of caution.

      1. I Chu, Chu, Chu’s you. Hehe. And there’s a picture of an Asian judge on the front…

  10. This is why I don’t let my orphans learn to read.

  11. So they violated the constitution once again…that is no surprise. Union schmucks, left wingers, et al have a history with that. Too afraid to confront, they use third party knee cappers to take care of their perceived problems.

  12. Why does the NLRB get to use a separate court system? These things should be adjudicated in Article III courts in front of juries, not kangaroo courts.

    1. Squirreloid, my thought is that the NLRB is an agency, and it falls under administrative procedures. Concur that this was a kangaroo court.

      My question: Who put this guy Chu into the position?

      1. The executive was never given judicial power. Part of my point is there shouldn’t be administrative courts. All courts should be Article III courts (except possibly military courts, who even in that case still should be held to Article III standards).

      2. Cue Gorsuch on Chevron.

  13. Jeez where the hell was the NLRB back when I was a kid?

    Whenever one of my friends said something like, “If I don’t go home soon, my mom is gonna kill me,” I could have had those NLRB dickbags charge his mom with plotting to commit murder.

  14. Fuck the Unions, I say!

  15. The Wagner Act doesn’t take into consideration retweets.

  16. The proper counterplay here, of course, would be to have the Federalist’s journalists look into Mr. Chu’s background for evidence of being a Chinese spy, a la Russiagate.

  17. Yet another reason to repeal the NLRA and abolish the NLRB.

  18. The question no one is raising here in the comments:
    How can any non-unionized publication ever write opinion pieces against unions, published by their owners or editorial boards? Would an opinion about *other* union efforts not been also seen as a “warning” to their own would be union efforts internally?

  19. “Nice website ya got here. Be a real shame if anything was to happen to it . . .”

  20. The Wagner Act and just about every labor law passed by Congress are unconstitutional. The interstate commerce clause is not plenary. It was written to prevent the states from hindering trade with taxes and regulations. It was not meant for Congressional Democrats to force unions on employers.

  21. Employers can not threaten employees with union-busting. period. that’s what was done, it’s a violation of the NLRA. and it’s good that it’s being investigated.

  22. I am happy it’s being investigated now. I’ll have a chance to make big essay with the help of professional writers from https://www.wowessays.com/

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