The text of the National Labor Relations Act does not, so far as we can tell, require the National Labor Relations Board or its personnel to have their sense of humor surgically removed. Nor does it prohibit the NLRB’s judicial proceedings from considering context, common sense, or elementary reality in making decisions. But you could not tell this from its decision upholding an administrative-law judge’s unfair-labor-practices ruling against FDRLST Media, LLC, which operates the conservative website The Federalist.
On June 6, 2019, Twitter was abuzz with the story of a unionized walkout of employees of progressive online conglomerate Vox Media. Many people in conservative media predicted that this would be bad not only for Vox Media’s business interests, but for the journalistic culture of its websites. The accuracy of those predictions can be judged from the defections from Vox Media’s flagship website, Vox.com, this past month, including founders Ezra Klein and Matt Yglesias, the latter apparently driven out in part by a rebellion of empowered, woker-than-thou junior staffers. But even if conservative predictions had not come true, they would be fair grounds for public comment by journalists on a matter of public importance, and not to be muzzled by federal regulators.
Not so, says the NLRB. Ben Domenech, the founder and publisher of The Federalist (and thus a peer of Klein at the time, except that he is still employed at the site he founded) tweeted that night, “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine”. For the labor-side lawyers out there: This is what the rest of us call a “joke,” mocking the situation at Vox Media. Yet, it led to a finding of unfair labor practices by the NLRB and a government order to a journalist to delete his tweet. (Because the case is on appeal, the tweet still stands.)
The NLRB says that this violates a statute under which an employer may not “interfere with, restrain, or coerce employees in the exercise” of rights to unionize and collectively bargain. No government agency worth its salt would bring such a case, given the manifest absence of any such activity by FDRLST Media employees or of evidence that any employee failed to get the joke. The NLRB, however, has expansively read the use of passive voice in its statute to allow any random member of the public to file a case against any employer. Here, a progressive journalist with an axe to grind against The Federalist started the ball rolling, and a Bernie Sanders-supporting class-action lawyer filed the claim. No federal law should allow any political critic to silence a journalist in this fashion.
No remotely reasonable person thinks there was any harm here. The Federalist has only six employees, and anyone working for the site would understand the context, as two of its staff explained in affidavits. The NLRB refused to consider the affidavits, on the grounds that an objective examination of the workplace context required ignoring all evidence of the actual workplace context, just as an objective examination of the tweet’s context required ignoring all evidence of the actual context of the tweet. Justice is supposed to be blind to favor, not blind to facts. The NLRB wrote that “the words of the statement itself leave no doubt that it is directed at [The Federalist’s] employees” — a statement that would make no sense to anyone even vaguely familiar with how Twitter works or with the massive disparity between Domenech’s public Twitter following (today, over 130,000 followers) and The Federalist’s tiny staff.
Many a business lacks the public platform of The Federalist to resist an abuse like this, so it is heartening to see the case being appealed (with the aid of the New Civil Liberties Alliance) out of the home court of the agency and into the courts of law. We can only hope that they get the joke.