Federal court holds that the NLRB doesn’t have a sense of humor

On June 6, 2019, unionized employees of Vox Media, a left-leaning digital media company, walked off the job during union contract negotiations. That same day, Ben Domenech, executive officer of FDRLST Media and publisher of The Federalist (which is the direct opposite of left-leaning), posted this tweet from his personal Twitter account: "FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine."

Following the filing of an unfair labor practice charge by someone with absolutely no relationship with FDRLST Media (employment or otherwise), the NLRB concluded that Domenech's tweet violated employees' rights to unionize or otherwise engage in protected concerted activity, agreeing with the administrative law judge that the tweet was an "obvious threat" that "working conditions would worsen or employee benefits would be jeopardized if employees attempted to unionize." 

On appeal, however, the 3rd Circuit Court of Appeals vehemently disagreed, agreeing with the employer that the tweet was a joke that no FDRLST Media employee would reasonably interpret as a threat.

The record does not show that Domenech ever used this account to communicate with employees or that employees were required to follow it. Taken together, a reasonable FDRLST Media employee who became privy to Domenech's tweet—posted the same day as the Vox Media walkout—would be far more likely to view the tweet as commentary on a contemporary newsworthy and controversial topic than as a threat that implicated her status with the Employer.

Thus, the Court concluded that the NLRB had wasted its time and resources on an issue that one could only reasonably interpret as sarcasm.

[T]he 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.

As advocates for employers, we spend a lot of time wringing our hands about the NLRB's strident pro-employee bent. We often forget, however, that the NLRB is not the final arbiter of the meaning of the National Labor Relations Act. That power squarely rests with the federal circuit courts and ultimately the Supreme Court. Thus, as we worry about certain pro-union changes on the horizon, this case serves as a great reminder that the courts may not see eye to eye with the NLRB's liberal interpretation of the statue.