When “Any Person” Is Close Enough

Ben Domenech made a joke on the twitters after the employees of Vox, a media outlet with what some might call a different political orientation than the Federalist, where Domench is in charge, unionized.

FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.

The National Labor Relations Board ALJ found this to be an unfair labor practice, holding that a threat against unionization framed as a joke was still a threat. It was obviously a joke and a motivated administrative determination by Judge Chu, who demonstrated a peculiar sensitivity to the feelings of potential union members.

It required a decision from the Third Circuit Court of Appeals to straighten out this absurd case and ridiculous holding.

But what constitutes a prohibited “threat”? To qualify as such, an employer’s statement must warn of adverse consequences in a way that “would tend to coerce a reasonable employee” not to exercise her labor rights.

What would a “reasonable employee” think?

The ALJ found that Domenech’s tweet was “an obvious threat” that “had no other purpose except to threaten the FDRLST [Media] employees with unspecified reprisals.” FDRLST Media, 370 N.L.R.B. at 5. The Board agreed. In adopting the ALJ’s finding, the Board disclaimed any reliance on the tweet’s timing or The Federalist’s editorial content, leaving only the words of the tweet, devoid of any context, as support. But the Board erred when it disregarded  relevant contextual evidence. ImageFIRST, 910 F.3d at 736 (citation omitted). Even more problematic than the timing and editorial content the Board ignored are the circumstances surrounding the tweet that the Board and the ALJ never considered. Had the Board considered the tweet’s full context, it could not have concluded that a reasonable FDRLST Media employee would view the tweet as a threat of reprisal.

Judge Thomas Hardiman waxes judicial for a while as if this required detailed explanation why this one sentence twit was an inconsequential joke and not an unfair labor practice. Then again, since the NLRB, the administrative agency with putative authority over labor relations, concluded the it was obviously a threat, perhaps the court had no choice but to beat this horse to death.

The National Labor Relations Act grants the National Labor Relations Board vast authority to investigate charges of unfair labor practices, even when charges are filed by parties who are not personally aggrieved by the alleged practice. But the Board’s authority to find an unfair labor practice is not unlimited. Here, the Board spent its resources investigating an online media company with seven employees because of a facetious and sarcastic tweet by the company’s executive officer. Because the Board lost the forest for the trees by failing to consider the tweet in context, it misconstrued a facetious remark as a true threat.

Notice the kicker in there, that the charges were filed “by parties who are not personally aggrieved”? No employee of Federalist grieved. No one associated with an employee or a union relating to Federalist filed a charge. So where did this ridiculous charge come from?

The following day, Joel Fleming, a Massachusetts resident with no connection to FDRLST Media, filed an unfair labor practice charge with the Board’s New York Region. The charge alleged that Domenech’s tweet violated Section 8(a)(1) of the National Labor Relations Act of 1935 (NLRA or Act) and listed an Illinois address for the Employer, even though it is a Delaware limited liability corporation with a Washington, D.C. office.

Fleming is a progressive Boston lawyer who saw an opportunity and went for it.

This wasn’t about unions or unfair labor practices, but trolling Domenech for lulz and forcing him and Federalist to go through the effort, expense and potential for loss to fight against something that Fleming did pretty much as a joke that went NLRB viral, if you will.

Despite holding that the twit was a joke and nothing more, it also held that the charge filed by Fleming, who bore no connection whatsoever to the Federalist or its employees, was properly considered by the NLRB as the enabling statute says “any person” can file an unfair labor practice. Fleming is “any person,” so he’s entitled to file.

The “any person” language made sense when the Wagner Act was passed and in the cases determining this issue since. There were an array of potential complainers, from unions who did not represent employees but wanted to, to people who wanted to be employees but couldn’t get hired because of their union affiliation or agitation. The salutary purpose of the broad “any person” language was necessary to allow the potential legitimate sources of grievance to have the opportunity to submit their charge.

But Fleming? The NLRA never anticipated that there would one day be a thing called “Twitter,” which would be filled with warring tribes who would use computers to easily and swiftly submit complaints on anyone on the other tribe for any reason or no reason. When enacted, there was an implicit understanding that no one wholly disconnected from the labor management relationship would file a charge with the NLRB. Who would do such a thing? It was nuts. So the expansive “any person” language had little downside and significant upside, allowing even those whose interest in the unfair labor practice was inchoate to get their foot in the door.

In the current climate, this has, and will continue to, cause enormous mischief. Even though Fleming lost on the substance of this nonsensical claim, he won bigly in the “court of twitter opinion,” with his tribe giggling unmercifully at the havoc wreaked on their arch enemy, right wing Federalist and Domenech. Then there’s the “hard costs,” the time, angst and money spent fighting this nonsense, and soft costs of chilling speech lest a joke form the basis of a federal agency’s attack.

And just as randos like Fleming on Twitter can do this to the Federalist, they can do it to any business or professional by baselessly and promiscuously grieving their “enemies,” even though they have no horse in the race. The question used to be “who would do such a crazy thing?” Have you met the people on twitter these days?


4 thoughts on “When “Any Person” Is Close Enough

  1. Bryan Burroughs

    The trolls might want to be careful on this one. Too many more attacks on conservative actors, and it might spur litigation to have the NLRA overturned for being a content-based restriction on corporate speech. With a 6-3 SC majority that is supposedly hellbent on ripping apart precedent, they might want to tread carefully. Seems to follow up well with your recent post on the problems with violating norms.

  2. Keith

    Scanning down the Twitter feed, yes, my eyes are getting mad
    Reading jokes about unions man, they’re getting me all sad.
    Maybe we should allow them and promote speech for us all.
    But we gotta move and we might as well sue and the statute lets us all.
    And I’m sure it wouldn’t interest anybody
    Outside of a small circle of friends

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