The Volokh Conspiracy
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From today's Third Circuit decision in Fdrlst Media, LLC v. NLRB, by Judge Thomas Hardiman, joined by Judge Anthony Scirica:
The Employer [FDRLST] operates The Federalist, a right-leaning internet magazine that publishes commentary on cultural, political, and religious issues of current interest, including labor issues. In June 2019, the Employer found itself at the center of its own labor controversy. On June 6, media outlets reported that unionized employees of Vox Media, a left-leaning digital media company, walked off the job during union contract negotiations.
That same day, Ben Domenech, executive officer of FDRLST Media and publisher of The Federalist, posted a tweet from his personal Twitter account that read: "FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine." Domenech's tweet appeared in the feeds of more than eighty thousand Twitter users who follow his account. The "@fdrlst" tag refers to The Federalist's official Twitter account. At the time, the Employer had just seven employees, six of whom were writers and editors at The Federalist. At least one employee viewed the tweet, but the record does not show that any employee expressed concern over its message.
The following day, Joel Fleming, a Massachusetts resident with no connection to FDRLST Media, filed an unfair labor practice charge with the Board's New York Region. The charge alleged that Domenech's tweet violated Section 8(a)(1) of the National Labor Relations Act of 1935 (NLRA or Act) ….
The NLRB concluded the tweet was a threat of reprisals prohibited by federal labor law, and "ordered the Company to direct Domenech to delete his tweet." But the court disagreed:
Section 8(a)(1) prohibits employers from engaging in practices that "interfere with, restrain, or coerce employees in the exercise" of their protected rights to organize, collectively bargain, or engage in other union activity. An employer is not barred from communicating his views on unions—even his anti-union views—to his employees, but he cannot threaten employees with reprisals or promise them benefits in relation to unionization.
But what constitutes a prohibited "threat"? To qualify as such, an employer's statement must warn of adverse consequences in a way that "would tend to coerce a reasonable employee" not to exercise her labor rights. The test for coercion is objective: "the employer's intent is irrelevant and the proper inquiry is the impression of a reasonable employee." Proof of actual coercion is unnecessary; the tendency of an employer's statement to coerce a reasonable employee is sufficient to find an unfair labor practice….
The employer's alleged threat is not viewed in a vacuum, however…. Context is an important part of language, and that's especially true where, as in this case, pure speech is at issue….
For starters, FDRLST Media is a tiny media company. Its six employees (not including Domenech) are writers and editors. The tweet's suggestion that these employees might be sent "back" to work in a "salt mine" is farcical. 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 of the tweet alone, we cannot conclude that a reasonable FDRLST Media employee would view Domenech's tweet as a plausible threat of reprisal.
The ALJ rightly noted that the salt mine idiom "most often … refer[s] to tedious and laborious work," but the Board failed to realize that "[t]hreatening statements are not usually made in bantering terms" like these. NLRB v. Champion Labs., Inc. (7th Cir. 1996) (citing NLRB v. Windemuller Elec., Inc. (6th Cir. 1994)). To conclude that Domenech's tweet is a "thinly veiled statement concerning adverse consequences," requires some additional evidence of the tweet's coercive tendency. But the Board points to none….
[In particular], the Board points to no history of labor strife, no evidence of antagonism, nor even a single example of labor-management tension. The Board cited only one brief tweet, posted from a supervisor's personal Twitter account. 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.
We also think it significant that The Federalist "publishes commentary on a wide variety of contemporary newsworthy and controversial topics," including matters involving politics and labor relations, and that Domenech used his personal Twitter account to promote and discuss the magazine's commentary. The record does not show that Domenech ever used this account to communicate with employees or that employees were required to follow it. Taken together, a reasonable FDRLST Media employee who became privy to Domenech's tweet—posted the same day as the Vox Media walkout—would be far more likely to view the tweet as "commentary on a … contemporary newsworthy and controversial topic" than as a threat that implicated her status with the Employer….
Employees' subjective impressions [are relevant here and] are especially helpful where, as here, the employer claims his statement was made in jest. Humor is subjective. What is funny to a fisherman may be lost on a farmer. A quip about New England winters is unlikely to get a laugh in Alaska. The propensity for jokes to fall flat for want of context or audience understanding has given rise to idioms like "I guess you had to be there" and "too soon?" Excluding context and viewing a statement in isolation, as the Board did here, could cause one to conclude that "break a leg" is always a threat. But when expressed to an actor, singer, dancer, or athlete, that phrase can reasonably be interpreted to mean only "good luck." …
The record contains no evidence that any FDRLST Media employee perceived Domenech's tweet as a threat, and the Board failed to even acknowledge that noteworthy gap in the record. Because the charge was filed by an unrelated third-party, the alleged unfair labor practice was pure speech, and the meaning of the employer's statement is open to question, the "silence of the record" is significant and should have been considered.
Finally, the mode of communication also weighs against finding that Domenech's tweet would tend to coerce a reasonable FDRLST Media employee. Domenech posted his message on Twitter, a public platform that limits tweets to 280 characters, which encourages users to express opinions in exaggerated or sarcastic terms. Domenech sent his message to the timelines of his more than eighty thousand Twitter followers, not to the email inboxes of his FDRLST Media employees. And he made the tweet available to the public—a peculiar choice indeed for a threat supposedly directed at six employees. These characteristics of Domenech's tweet would give a reasonable FDRLST Media employee even more reason to read the tweet as mocking a rival internet media company or commenting on a timely socio-political issue than as threatening reprisal….
Our conclusion is buttressed by the fact that the alleged unfair labor practice consists of the Employer's words alone. In protecting employees' statutory labor rights, neither we, nor the Board, can violate an employer's right to free speech under the First Amendment.
The Act distinguishes prohibited employer conduct from protected employer speech in Section 8(c), which provides that "[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter [29 U.S.C. §§ 151–169], if such expression contains no threat of reprisal or force or promise of benefit." … "[Section] 8(c) … implements the First Amendment." ….
To give effect to Congress's intent and avoid conflict with the First Amendment, we must construe the Act narrowly when applied to pure speech, recognizing that only statements that constitute a true threat to an employee's exercise of her labor rights are prohibited…. We thus must be "vigilant to see that the [Board] does not read elements of interference, restraint or coercion into speech that is in fact nonthreatening and that would not strike a reasonable person as threatening." …
Judge Paul Matey concurred in the judgment; he generally endorsed the majority's conclusion that the Tweet wasn't a true threat, but would have rejected the case on the grounds that:
As best understood, the National Labor Relations Act cabins charging authority to those who suffered some adverse effect in the workplace. Not, as here, someone who took offense to something seen while scrolling Twitter. As the filer was not aggrieved under the NLRA, the Board lacked jurisdiction to launch this case. And because neither precedent nor deference alters the best reading of the NLRA, I respectfully concur only in the judgment.
(The majority concluded that the precedent did indeed justify allowing even strangers to the workplace to file complaints with the NLRB.)
Congratulations to Jared McClain of the Institute for Justice and Mark Chenoweth & Kara M. Rollins of the New Civil Liberties Alliance, who represented FDRLST. (Note that I'm one of the members of the NCLA Board of Advisors.)