Unless you have been off the planet for the last four years, you’ve likely heard of The Federalist, the conservative online magazine “focused on culture, politics, and religion that publishes commentary on a wide variety of contemporary newsworthy and controversial topics.” It’s a part of FDRLST Media, LLC, which also has websites, electronic newsletters and satellite radio shows. The publisher of The Federalist is Ben Domenech. As with many people these days, Mr. Domenech likes to tweet. That is where this story begins. FDRLST Media, LLC, 370 NLRB No. 49 (Nov. 24, 2020).
In June 2019, online media and news sites including the Washington Post, CNN, Bloomberg News, and Yahoo among others, carried a story of a walkout by union employees at Vox Media. That same day, Mr. Domenech tweeted, “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” That tweet was from Domenech’s personal Twitter account, but it used a @fdrlst salutation and at least one employee of The Federalist read it.
A non-employee also read the tweet and thought it was threatening toward employees of The Federalist who might contemplate engaging in protected concerted activity under the National Labor Relations Act (NLRA). That individual filed an unfair labor practice charge (ULP) with the National Labor Relations Board (NLRB) alleging a violation of Section 8(a)(1) of the NLRA.
In its defense, FDRLST Media claimed that Mr. Domenech intended the comment to be humorous; that the comment was obviously not meant to be taken seriously because there are no salt mines at The Federalist; and that it was protected First Amendment speech. The ALJ who heard the case rejected all of FDRLST Media’s arguments. Even if Mr. Domenech meant to be funny, he tweeted a threat based on the use of a idiom that suggested he would make like harder for anyone who engaged in organizing activity. As such no First Amendment protection existed.
The NLRB, in a unanimous three person decision, agreed. “We find that employees would reasonably view the message as expressing an intent to take swift action against any employee who tried to unionize the Respondent,” the Board said. “In addition, the reference to sending that employee ‘back to the salt mine’ reasonably implied that the response would be adverse.” Mr. Domenech’s alleged intent to be funny, reasoned the Board, doesn’t matter a wit.
FDRLST Media’s attorney reportedly has vowed to appeal the decision, saying (politely?) it “shows that NLRB lacks both common sense and a sense of humor.” I suspect the Board members involved: Chairman Ring (R), along with members Kaplan (R) and McFerran (D), will likely be surprised by this assertion. Perhaps less important, Mr. Domenech’s tweet just does not seem all that funny. But maybe that is just me and perhaps yucks will abound when three appellate judges review the facts.
There is an important take away here. Do you, as an employer really want an allegedly humor impaired NLRB deciding whether your intended “funny” comment is in fact a threat and therefore a ULP. Probably not. Just like it is a bad idea to claim that sexist (or insert other protected status here) comments were meant to be funny, but she “just took it the wrong way,” or that “it was taken out of context.” That, my friends, rarely gets an employer a win before the EEOC or in court. So, unless you get paid for your comedic talent, don’t try to be funny. Even then, please save it for the stage.