Third Circuit Overturns NLRB Ruling Against The Federalist

Last week, the Third Circuit Court of Appeals ruled against the NLRB for their decision to rule against The Federalist based on the merits of a comedic tweet by their executive officer and publisher, Ben Domenech. This decision overturns a callous attempt by the NLRB to punish a conservative publication based on a joke over which no one in the organization actually expressed concern or took offense.

Photo Credit: Gage Skidmore from Peoria, AZ, United States of America, CC BY-SA 2.0, via Wikimedia Commons

After Vox’s unionized employees walked off the job during union negotiations, Domenech jokingly tweeted publicly: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Even though this message sparked no issues amongst the small unit that comprises the outlet, a person completely unconnected to the organization decided to file an unfair labor practice charge with the NLRB. 

Despite understanding the tenuous basis for the charge, the NLRB decided to affirm the conclusion that the tweet was an actual threat against the employees of the organization. In doing so, they ignored the entire context of the tweet. This context includes evidence of previous editorials that The Federalist had previously published, the tweet’s publication within hours of the Vox walkout, and affidavits from actual employees that did not note feeling threatened because of the tweet.

The NLRB’s decision to prosecute Domenech for threatening his employees required them disregarding years of court precedent that relies on “the impression of a reasonable employee” and examining the employer’s actions “in light of all existing circumstances.” Even though both of those factors would indicate the generally innocuous nature of the tweet, the NLRB set these elements of the case aside when ruling that Domenech threatened his employees. 

Punishing an employer for threatening employees, despite none of the employees reporting feeling threatened, suggests that the supposedly impartial NLRB has a brazen desire to prop up unions. This comes in light of the NLRB forcing Amazon to either settle with the Amazon Labor Union or face legal charges solely for the manager telling their employees the truth about unionization: if their employees do not pay union dues or want to join a union, the union could put a clause in their contract forcing Amazon to fire them. The NLRB also took issue with Amazon from even discussing the topic of unionization in required staff meetings. 

Just one week before the JFK8 union vote, the NLRB filed an emergency injunction to force Amazon to rehire an employee that was terminated 23 months prior. While the NLRB claimed the firing was designed to blunt the union’s momentum, the employee in question was terminated for hurling sexually-charged obscenities at a female coworker and livestreaming the attack on Facebook.  The fired employee called his female coworker a “gutter bitch,” “ignorant and stupid,” “crack-head ass” among other obscenities and accused her of being “high” on “fentanyl.”

This pattern of behavior suggests that the NLRB is consistently working to use its broad authority to hide the problematic consequences of unionization.