No Laughing Matter: The Third Circuit Reverses NLRB Sanction Over Joke

In our age of rage, humor was one of the earliest victims. It is not that humor is not allowed, it is merely selectively tolerated. Thus, Twitter suspended the satirical site, Babylon Bee, with the support of many who claim to support free speech. In Canada, a comedian was actually prosecuted for trash talking in a comedy club. Even non-comedian can find themselves on the wrong side of a punch line. Recently, Ben Domenech of The Federalist found himself pursued over a single tweet teasing the employees at his publication. After referencing the struggle of Vox Media with a union, Domenech joked in a tweet that the salt mines await any employees who spoke of unionizing. No one was calling for a union at The Federalist and it was received by the staff that an obvious joke. However, a liberal lawyer from Massachusetts, Joel Fleming, filed a complaint with the National Labor Relations Board. In a highly controversial opinion, NLRB administrative law judge, Kenneth Chu, ruled against The Federalist. The United States Court of Appeals for the Third Circuit just overturned Chu and stated the obvious: it was a joke.

This litigation began in early June 2019 when Vox Media’s writers staged a walkout to call for a collective bargain contract. Conservatives found the protest irresistible given Vox’s liberal, pro-union philosophy.  One of those pouncing on the irony was Domenech, the publisher of The Federalist, who sent out a tongue-in-cheek tweet that joked “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”

The employees had reportedly not called for any union organizing at The Federalist and took the tweet as intended, even returning the joke by bringing in salt shakers and other items.

Even for the humor-impaired, the tweet was obviously meant in jest and did not refer to any actual union organizing at the office. However, Fleming, who has been criticized as a far left internet troll, filed a formal complaint. He was identified by Reuters as a securities litigator and partner with Block & Leviton in Boston.

There is a rising concern over activists using the courts to harass or to hinder those with opposing views. In this case, Fleming was accused of using the NRLB to hammer an influential conservative over a 19-word tweet. Many noted that it was bizarre for a Block & Leviton partner in Boston to file a grievance over a joke directed at employees of a publication with which he has no connection. Indeed, on his Twitter site, Fleming seems to relish the disconnect by describing himself as “A Bernie-supporting class action lawyer in Massachusetts with no ties to The Federalist or anyone who works there.”

That 19-word tweet has now resulted in protracted and costly litigation before both the NRLB and the federal courts.

Nevertheless, Judge Chu found a violation of labor laws. Chu, concluded that this was a violation of Section 8(a)(1) of the Wagner Act, 29 U.S.C. § 158(a)(1):

It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights [to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection]. (Emphasis added)

Judge Chu, dismissed the fact that this was a joke:

Obviously, the FDRLST employees are not literally being sent back to the salt mines. Idioms have, however, hidden meanings…Work in a salt mine is physically challenging and monotonous, and any job that feels that tedious can be called a salt mine… The expression that he will send the FDRLST employees back to the salt mine for attempting to unionize is an obvious threat. In viewing the totality of the circumstances surrounding the tweet, this tweet had no other purpose except to threaten the FDRLST employees with unspecified reprisal, as the underlying meaning of “salt mine” so signifies… I agree with the counsel for the General Counsel that a reasonable interpretation of the expression meant that working conditions would worsen or employee benefits would be jeopardized if employees attempted to unionize.

The Federalist refused an offer to settle the matter by deleting the joke and making some apologetic statement on the right to unionize. It proceeded to appeal Judge Chu’s ruling and just secured a sweeping victory.

Appellate Judges Thomas Hardiman, Paul Matey, and Senior Circuit Judge Anthony Scirica were unanimous in rejecting the claim.  It noted that it was bound by prior case law to read the jurisdiction of the NLRB broadly: “Unfortunate as it may be, the Act as written and interpreted empowers a politically-motivated busybody as much as a concerned employee or civic-minded whistleblower.” However, it then trashed Judge Chu’s decision on the merits.

Forgive the long quote from Judge Hardiman’s decision but it is worth reading:

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. Garry Mfg. Co., 630 F.2d at 938. The test for coercion is objective: “the employer’s intent is irrelevant and the proper inquiry is the impression of a reasonable employee.” Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167, 176 (3d Cir. 2002). …

The employer’s alleged threat is not viewed in a vacuum, however.When considering an alleged unfair labor practice, an employer’s conduct must be examined “in light of all the existing circumstances.” Wheeling-Pittsburgh Steel Corp. v. NLRB, 618 F.2d 1009, 1020 (3d Cir. 1980) (emphasis added) (citations omitted); see also NLRB v. Va. Elec. & Power Co., 314 U.S. 469, 479 (1941) (The Board’s finding of an unfair labor practice must be based “upon the whole course of conduct revealed by [the] record.”). Context is an important part of language, and that’s especially true where, as in this case, pure speech is at issue.

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.

For starters, FDRLST Media is a tiny media company. Its six employees (not including Domenech) are writers and editors. The tweet’s suggestion that these employees might be sent “back” to work in a “salt mine” is farcical. The image evoked—that of writers tapping away on laptops in dimly-lit mineshafts alongside salt deposits and workers swinging pickaxes—is as bizarre as it is comical. So from the words of the tweet alone, we cannot conclude that a reasonable FDRLST Media employee would view Domenech’s tweet as a plausible threat of reprisal….

Humor is subjective. What is funny to a fisherman may be lost on a farmer. A quip about New England winters is unlikely to get a laugh in Alaska. The propensity for jokes to fall flat for want of context or audience understanding has given rise to idioms like “I guess you had to be there” and “too soon?”

Excluding context and viewing a statement in isolation, as the Board did here, could cause one to conclude that “break a leg” is always a threat…

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. We will accordingly grant FDRLST Media’s petition, set aside the Board’s order, and deny the Board’s petition for enforcement.

In other words, it was a joke.

The effort of many on the left has been pounce on any tweet or joke or comment to seek to cancel or sanction those on the right. That has been particularly the pattern at universities. There is seldom any effort to fire professors for stating outrageous things about conservatives or Republicans. However, conservative or dissenting faculty can expect little support from their deans or university presidents in any controversy.In past postings, I have defended faculty who have made an array of disturbing comments about “detonating white people,” denouncing police, calling for Republicans to suffer,  strangling police officers, celebrating the death of conservatives, calling for the killing of Trump supporters, supporting the murder of conservative protesters and other outrageous statements. I also supported the free speech rights of University of Rhode Island professor Erik Loomis, who defended the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence.

They really did not need such defense since few faculty or students denounced them, let alone sought their removal. Indeed, at the University of California campus, professors actually rallied around a professor who physically assaulted pro-life advocates and tore down their display.

There is a notable difference in how universities respond depending on the viewpoint. Anyone who raises such objections is immediately set upon by a mob demanding their investigation or termination.

One such campaign led to a truly tragic outcome with criminology professor Mike Adams at the University of North Carolina (Wilmington). Adams was a conservative faculty member with controversial writings who had to go to court to stop prior efforts to remove him. He then tweeted a condemnation of North Carolina Gov. Roy Cooper for his pandemic rules, tweeting that he had dined with six men at a six-seat table and “felt like a free man who was not living in the slave state of North Carolina” before adding: “Massa Cooper, let my people go.” It was a stupid and offensive tweet. However, we have seen extreme comments on the left — including calls to gas or kill or torture conservatives — be tolerated or even celebrated at universities.

Celebrities, faculty and students demanded that Adams be fired. After weeks of public pummeling, Adams relented and took a settlement to resign. He then killed himself a few days before his final day as a professor.

The litigation over this joke is worrisome. It was not just the effort of a Boston lawyer to use the NLRB against someone with opposing political views. It was the fact that he was successful in getting the NLRB to find a violation. Many such targeted individuals or groups do not have the resources of The Federalist to litigate such a claim, particularly given the deference afforded to administrative rulings.

So for now, Joel Fleming, Judge Chu, and the NLRB have been frustrated in their effort to protect the world from a joke that could crush unions in its mirthful path. The dangers should not be ignored.. As Judge Chu warned jokes can have “hidden meanings” and cause untold harm as established earlier by English scientists: