Put aside your feelings about the Federalist, and consider only whether the twit that happened to come from Ben Domenech’s fingers was a joke, a veiled threat or both.
As far as I know, the Federalist does not have any salt mines to send anyone back to, so this was a joke and not a serious threat, right? Except the National Labor Relations Board Judge Kenneth Chu didn’t laugh.
FDRLST Media chief Ben Domenech’s tweet was an “obvious threat”—not a joke or an expression of opinion shielded by the First Amendment—when viewed in light of workers’ legally protected rights, Judge Kenneth Chu said Wednesday. The timing of the tweet, which came on the same day of a walkout by union employees at Vox Media, supported the conclusion that Domenech was sending a message to employees, the judge held.
“Obviously, the FDRLST employees are not literally being sent back to the salt mines,” Chu wrote. “Idioms have, however, hidden meanings.”
Hidden meanings are the worst meanings, mostly because if they’re hidden, only people with special secret x-ray vision can see them. And if someone can see a hidden meaning, that hidden meaning can be a violation of Section 8(a)(1) of the Wagner Act.
Section 7 of the Act provides that, “employees shall have the right to self-organization, to form, join, or assist labor organizations…” Section 8(a)(1) provides that it is an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. Section 8(a)(1) of the Act makes it unlawful for an employer to “interfere with, restrain, or coerce employees in the exercise of [those] rights.” See, Brighton Retail Inc., 354 NLRB 441, 447 (2009). The test for evaluating if the employer violated Section 8(a)(1) is “whether the statements or conduct have a reasonable tendency to interfere with, restrain or coerce union or protected activities.” Hills & Dales General Hospital, 360 NLRB 611, 615 (2014). Additionally, the test of interference, restraint, and coercion under Section 8(a)(1) does not turn on the employer’s motive or on whether the coercion succeeded or failed. American Tissue Corp., 336 NLRB 435, 441 (2001); Hanes Hosiery, Inc., 219 NLRB 338, 338(1975) (“we have long recognized that the test of interference, restraint and coercion . . . does not turn on Respondent’s motive, courtesy, or gentleness . . . the test is whether Respondent has engaged in conduct which reasonably tends to interfere with the free exercise of employee rights under the Act.”); also, Amnesty International of the USA, Inc., 368 NLRB No. 112 (2019).
Can the “hidden meanings” in a twit, even if obviously humorous on its face, serve to reasonably interfere with the exercise of Section 7 rights? Of course they can. After all, it’s not about the employer’s motive, or even civility, but how it’s perceived by others. What constitutes reasonable perception of hidden meanings by others these days is an ever-lower bar.
There were some collateral facts that were taken into account, including the Federalist’s general anti-union politics and that its sister media outlet, Vox, was in the midst of unionizing. Of course, the former presents a curious counterfactual as well, given that Vox adores employees’ unionization rights, but was decidedly less than thrilled when its own employees signed their union cards.
The meaning of these expressions is different from the literal meaning or definition of the words of which they are made. The literal definition of salt mine explains the origin of the figurative meaning. Work in a salt mine is physically challenging and monotonous, and any job that feels that tedious can be called a salt mine. The term is sometimes used in a lighthearted or joking way: “It was a great weekend, but tomorrow it’s back to the salt mine.” See, Farlex Dictionary of Idioms. © 2015 Farlex, Inc, all rights reserved. Nevertheless, the expression “salt mine” is most often used to refer to tedious and laborious work.
Then again, what if it was just a joke, given that the Federalist’s employees weren’t engaged in any union activities at the time and Domenech might not have checked with Farlex’s Dictionary of Idioms before making a funny twit?
He maintained that the tweet was a satire and an expression of his personal viewpoint on a contemporary topic of general interest (R. Exh. 3). It is significant to note that although the tweet was from Domenech’s personal account, the tweet itself was prefaced with the Respondent’s name and it was “FYI” or ‘For Your Information’, which, in my opinion, was clearly directed to the employees of FDRLST and not to the general public.
That may have been in Judge Chu’s opinion, but since he was the guy deciding the issue, his opinion is a big deal. And the inclusion of FYI might have been part of the joke, but Chu didn’t see it that way.
The Respondent proffered two additional affidavits from FDRLST employees, both stating that the tweet was funny and sarcastic and neither one felt that the expression was a threat of reprisal (R. Exh. 3).7 However, a threat is assessed in the context in which it is made and whether it tends to coerce a reasonable employee.
The history of labor-management relations is replete with threats, both veiled and flagrant. Companies that want to let their employees know that bad things will happen to them should they exercise their Section 7 rights can do so at the end of a Pinkerton’s gun or with a benign expression of concern, like “it would be a shame if anything happened to that pretty face of yours.” Believe it or not, this isn’t really about being concerned for the person’s pretty face.
At the same time, what of Ben Domenech’s First Amendment right to make a funny at the expense of Vox and incite a bit of laughter among his and the Federalist’s fans? The First Amendment implications of Section 8(a)(1) unfair labor practices has evaded scrutiny over the years, as the opportunity for commentary never before existed on twitter for the delight of the general public, whether FYI’d to employees for laughs or for real.
It now appears that the implications will need to be faced, as outside of the perception of hidden meanings by the “reasonably” passionate, it seems that anyone not turning over rocks in search of Unfair Labor Practices will just see Ben Domenech making a joke on the Twitters. Should that really be against the law?
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