Law & the Courts

Send the NLRB Back to the Salt Mine

The Twitter app loads on an iPhone. (Mike Blake/Reuters)
The NLRB process has proven itself here to be both humorlessly literal-minded and easily abused.

Can a politically unaccountable government agency sanction you for a joke on Twitter that annoyed a total stranger? If you’re Ben Domenech of The Federalist and the agency is the National Labor Relations Board, the answer, for now, is yes. The case is a perfect storm of what is wrong with the administrative state in general and the NLRB in particular. The NLRB process has proven itself here to be both humorlessly literal-minded and easily abused, and its decision and the entire case rest on deeply shaky legal ground. The New Civil Liberties Alliance, a nonprofit dedicated to fighting an overreaching administrative state, is representing The Federalist, and promises to appeal the case.

The Federalist Salt Mine

Background: There’s been a movement among the staffs of left-leaning publications to unionize, and a fair amount of mockery and schadenfreude from conservative publications directed at the clash between stated left-wing ideals about unions and the practical problems that come from unionizing magazine and blog writers. Opinion writers aren’t coal miners, after all. In early June 2019, Vox Media’s writers staged a walkout to demand a new collectively bargained contract. That did not, apparently, prevent Vox Media from the furloughs and cuts to pay and hours that it took this month. Late the night of the walkout, Ben Domenech, the publisher of The Federalist, tweeted:

If you were following the story at the time (as I was) and saw Ben’s Tweet (as I did), you knew that he was busting on the Vox Media story. He followed up the next morning with this:

So far as I know, The Federalist operates neither a salt mine nor a Dickensian workhouse. (Full disclosure: I wrote for The Federalist as an independent contractor from 2013-15, as well as for Ben Domenech’s prior site, The New Ledger, and we were colleagues at RedState). Nobody who works for The Federalist has ever expressed a problem with these tweets, nor has anybody pointed to any evidence that anyone who works for The Federalist ever expressed even the slightest interest in unionizing. Given the sorts of commentary the site tends to publish on union issues, this is unsurprising.

Never mind all that; Joel Fleming, a Bernie-supporting class action lawyer in Massachusetts with no ties to The Federalist or anyone who works there, decided that this was an opportunity to act offended. Some flavor of Fleming’s sympathy for people who work at The Federalist can be gained from his tweets at Domenech’s wife:

 

Normally, this would be the stuff that Twitter spats are made of, and not a federal case. But Fleming went a step further: he filed a complaint with the NLRB, accusing Domenech of violating Section 8(a)(1) of the Wagner Act, 29 U.S.C. § 158(a)(1):

It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of 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]. (Emphasis added)

The reason we have a federal statute is to prevent actual attempts to prevent employees “in the exercise” of rights to organize a union — not pundits snarking about news stories on Twitter, and not workplaces where the employees have given no indication that they have any interest whatsoever in organizing. The Federalist has a grand total of six employees (counting Domenech), and two of them submitted affidavits saying they read this as a joke on current events. The NLRB didn’t call any witnesses or introduce any evidence that anybody in the organization thought this was anything but a snarky tweet. In fact, the tweet and some printouts from the Internet were all the evidence the NLRB had.

Amazingly, the NLRB administrative law judge, Kenneth Chu, concluded that none of this mattered, ruling that Domenech had violated the Wagner Act:

Obviously, the FDRLST employees are not literally being sent back to the salt mines. Idioms have, however, hidden meanings…Work in a salt mine is physically challenging and monotonous, and any job that feels that tedious can be called a salt mine… The expression that he will send the FDRLST employees back to the salt mine for attempting to unionize is an obvious threat. In viewing the totality of the circumstances surrounding the tweet, this tweet had no other purpose except to threaten the FDRLST employees with unspecified reprisal, as the underlying meaning of “salt mine” so signifies… I agree with the counsel for the General Counsel that a reasonable interpretation of the expression meant that working conditions would worsen or employee benefits would be jeopardized if employees attempted to unionize.

“This tweet had no other purpose” is a hilariously blinkered, over-literal misunderstanding of how Twitter works, and why any conservative writer would be talking publicly about this issue on the very day of the Vox Media walkout. That’s what Twitter is for.

Judge Chu went on to claim that because the test for “threats” is an objective one, “Any subjective interpretation from an employee is not of any value” to deciding “whether [the tweet] tends to coerce a reasonable employee”. But this is not how “reasonable man” tests work in the law. As Chief Justice Earl Warren explained when the Supreme Court drew the line between employer free speech and prohibited threats, “Any assessment of the precise scope of employer expression . . . must be made in the context of its labor relations setting.” The context that matters is that of a reasonable employee of The Federalist. How the tweet would be read by an audience of Vox Media writers or an audience of pipefitters or schoolteachers is not relevant. How people react to information is always relevant evidence of how a reasonable, similarly situated person would act. Anybody who writes for a conservative publication would have gotten the joke.

Strangers Airing Grievances

Besides an NLRB staff and administrative law judge with no grasp of Twitter snark, the deeper problem with this case is that NLRB regulations allow “any person” — including a random political enemy who only knows the workplace from Twitter — to file a case and trigger a legal proceeding. That is a recipe for abuse. It’s the kind of thing that drove Sarah Palin from office as governor of Alaska: Palin had naively signed a law allowing any citizen to initiate an ethics investigation against a public official. When she became a prominent national figure, political foes ensured that more than a dozen of them were filed against her, consuming her ability to govern.

This is not the process Congress designed in writing the law, and The Federalist is challenging the NLRB’s legal authority to write such a rule. Section 10(b) of the Wagner Act, 29 U.S.C. § 160(b), says that an NLRB proceeding begins “Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice,” and it was written somewhat open-endedly so that charges did not have to be filed personally by an employee or his or her union. But Section 10(b)’s six-month time limit for filing a claim speaks in terms of “the person aggrieved thereby,” suggesting that Congress assumed that filing a charge required some sort of injury or interest in the case beyond having a personal or political grudge against the employer. Indeed, the Supreme Court has long emphasized that the purpose of the Wagner Act is remedial, not punitive: the process exists to benefit the employees. In this case, the only relief that Judge Chu could think of was a vague order telling Domenech to stop threatening his employees, when none of them felt threatened in the first place.

Nobody to Blame

If you believe in democratic accountability, you might think that the Trump administration would and should catch holy hell for pursuing this ridiculous case. But of course, the NLRB staff is all civil servants, and no political appointee has the power to decide what cases to bring. Judge Chu is a career administrative law judge, currently on his third agency. The case can be appealed to the full Board, which consists of three Trump appointees, and from there, if necessary, to the federal courts. But the decision to drag political commentators (or Barstool Sports, which had to settle a similar charge recently) through the administrative machinery over a tweet is precisely the kind of decision for which the Founding Fathers would have assumed that somebody in the government could be held accountable to voters. As the NCLA said in its statement on the decision, “An ALJ assigned to a case by the NLRB ruling in favor of the NLRB is the very definition of an administrative-adjudication system rigged against the non-government litigant. The process itself, as we have seen in this case, can be an oppressive punishment.”

The NLRB staff’s agenda was not especially concealed in this case; in the hearing, the NLRB’s lawyer introduced exhibits “for the purpose of showing The Federalist’s political position on unionization” and argued:

The Federalist, anti-union website, is demonstrated by its editorial content. As the publisher of The Federalist, and CEO of the Respondent, the editorial positions of the website are reasonably…understood as Mr. Domenech’s own. In light of the anti-union position of The Federalist [and] Mr. Domenech, no reasonable reader would interpret the threat as anything other than simply another expression of Mr. Domenech’s anti-union stance.

That’s not supposed to be what gets you brought up on charges by a federal agency, but when an agency’s decisions are unsupervised by voters, it becomes a law unto itself, or worse, a tool for score-settling by left-wing activists. This is no way to run a liberal democracy.

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