Court Tells NLRB Sometimes a Joke Is In Fact a Joke

In a significant win for common sense, a federal appeals court has found that sometimes a joke is just a joke, even when it is made by an employer and concerns workers’ union rights. The Third Circuit Court of Appeals has overturned the National Labor Relation s Board’s (NLRB) penalty against Federalist publisher Ben Domenech for “threatening” his website’s employees.

The board has long held that any comment, regardless of intent, by an employer that threatened workers for unionizing was a violation of the National Labor Relations Act (NLRA). The boss saying “I was just joking” was not a defense. The only thing that mattered was whether any employee could theoretically construe it as a threat. This absolutist position has resulted in many employers going silent during organizing bids for fear of crossing an invisible line.

Ben Domenech, publisher of the conservative online opinion journal the The Federalist, discovered this in June 2019 when he tweeted,  “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” The tweet was in reaction to the liberal site Vox’s employees organizing.

The employees at The Federalist, all seven of them, saw this for the joke that it was. Among other telling details, The Federalist is an online magazine and does not run any salt mines. More relevantly, the seven workers were all conservatives like Domenech and had made no effort to form a union.

Domenech’s tweet got considerable outside attention, however, and a liberal labor lawyer with no connection to The Federalist or its employees filed an unfair labor practices complaint with the NLRB. The Board allows such third-party complaints. The intention of the practice is to allow labor activists to intercede on behalf of workers who might be afraid to speak up. In this case, the third party making the complaint was pretty clearly abusing the practice in an effort to harass Domenech.

None of this mattered to the NLRB. An administrative law judge found the comment violated the NLRA and the full Board upheld thats. Domenech appealed it and the Third Circuit decided that, yeah, this was pretty ridiculous.

“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,” the court noted in its ruling. It added that the NLRB “went too far” when it opined that employees’ own interpretations of their employer’s conduct were irrelevant. Since the charge was filed “by an unrelated third party” a higher standard had to be applied as to whether the statement constituted a threat.

To be honest, I was skeptical of Domenech’s odds for winning in this case. It wasn’t clear that the First Amendment provided protection in this area, as the NLRA is supposed to protect the workers’ fundamental rights to organize. The NLRB’s absolutist position on employer threats had been accepted as the legal standard for so long that businesses rarely, if ever, challenged it.

Typically, the NLRB would offer businesses charged with making threats the opportunity to avoid litigation by simply disavowing the comment and most readily took the offer. Notably, the Domenech case was initiated when the Board still had a Republican majority appointed by President Trump, yet even that GOP-controlled Board opted to uphold the existing standard for employer comments.  

Domenech persevered and won. This is a significant blow to the NLRB’s efforts to reinterpret the NLRA in a variety of ways to benefit unions.