The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Make an Anti-Union Joke, Prepare to Be Accused of an Unfair Labor Practice
The NLRB's prosecution of a conservative journalist should be worrisome.
When writers at Vox Media staged a walk-out as part of their unionization efforts, Ben Domenech, publisher of The Federalist, responded with a joke on Twitter.
FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine
— Ben Domenech (@bdomenech) June 7, 2019
There's no evidence anyone at The Federalist thought this was anything other than a topical joke, responding to a current event. Yet as Domenech recounts in the WSJ, a progressive writer and lawyer responded by filing unfair labor practice complaints with the National Labor Relations Board, and the NLRB pursued these claims with vigor, resulting in this decision against Domenech and The Federalist.
The National Labor Relations Board informed me that the leftist writer Matt Bruenig had filed a formal complaint about my tweet. He withdrew it, but Joel Fleming, a Massachusetts lawyer, filed another.
Mr. Fleming alleged I had violated Section 8(a)(1) of the Wagner Act, which states that "it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7"—namely the rights "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
The accusation was laughable. No employee had expressed a desire to unionize. If anyone had, my joke wouldn't have stood in the way. Mr. Fleming was an interloper anyway—he had no association with the Federalist. But according to the NLRB, anyone can file such a complaint against any company.
The NLRB General Counsel pressed the case against Domenech and The Federalist, and the NLRB prevailed in front of an Administrative Law Judge. Because Domenech is publisher, his light-hearted tweet was a prohibited unfair labor practice because, according to the ALJ, it could reasonably interpreted as a threat to impose worse working conditions on any employees who sought to unionize -- not that any employees who had ever even considered the possibility (or desirability) of unionizing were ever identified.
The free speech implications of this case are troubling for multiple reasons. First, this episode shows haw well-intentioned regulations can be weaponized for political purposes. The complainants had no interest in "protecting" Federalist workers - if they even know any. Their clear aim was to harass and punish ideological adversaries (a tactic Fleming has expressly endorsed in other contexts - albeit in tweets directed at Domenech's wife).
More broadly, any regulatory scheme which allows a regulatory agency to punish comments about public policy matters, particularly when there is no evidence the comments have any relation to actual or potential unionizing activity, is itself problematic.
Beyond that, there's also reason to be concerned that the NLRB is less than even-handed in its censoriousness. Threats and derisive comments made on a union Facebook page are no problem, even when made contemporaneously with picketing efforts and when other employees complained. Somehow we're supposed to believe that Domenech's lone tweet is a more serious concern? And who can forget that the NLRB once tried to claim that it would be an unfair labor practice for employers to bar workers from making abusive and threatening comments (including racial and sexual epithets) on the job. In those cases there were actual labor disputes, not here -- and that's part of the problem.
Domenech and The Federalist will appeal, represented by the New Civil Liberties Alliance. Among other things, the NCLA will press the argument that the NLRB process cannot be triggered by any random twitter lurker who wants to sic federal bureaucrats on those they don't like. I hope the resolution in court will be more sensible. I wish them luck.
