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

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, acomedian was actually prosecuted for trash talking in a comedy club. Even non-comedians can find themselves on the wrong side of a punch line. Recently, Ben Domenech ofThe 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 atThe Federalist and it was received by the staff as 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 againstThe 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 whenVox Medias writers staged a walkout to call for a collective bargaining contract. Conservatives found the protest irresistible given Voxs liberal, pro-union philosophy. One of those pouncing on the irony was Domenech, the publisher of The Federalist,who sent out atongue-in-cheek tweetthat joked FYI@fdrlstfirst one of you tries to unionize I swear Ill send you back to the salt mine.

The employees had reportedly not called for any union organizing atThe Federalistand took the tweet as intended, evenreturning 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 asa far left internet troll, filed a formal complaint. He wasidentified by Reutersas a securities litigator andpartner with Block & Leviton in Boston.

Ironically, Fleming just succeeded in creating significant new precedent in favor of employers against future such lawsuits.

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 NLRB 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 himselfas 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 NLRB and the federal courts.

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

It shall be an unfair labor practice for an employer tointerfere with, restrain, or coerceemployeesin the exerciseof 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,dismissedthe fact that this was a joke:

Obviously, the FDRLST employees are not literally being sent back to the salt mines. Idioms have, however, hidden meaningsWork 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 Chus 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 Chus decision on the merits.

Forgive the long quote from Judge Hardimans decision but it is worth reading:

But what constitutes a prohibited threat? To qualify as such, an employers 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 employers 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 employers alleged threat is not viewed in a vacuum, however.When considering an alleged unfair labor practice, an employers conduct must be examined in light ofallthe 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 Boards 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 thats especially true where, as in this case, pure speech is at issue.

The ALJ found that Domenechs 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 ALJs finding, the Board disclaimed any reliance on the tweets timing or The Federalists 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 tweets 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 tweets suggestion that these employees might be sent back to work in a salt mine is farcical.The image evokedthat of writers tapping away on laptops in dimly-lit mineshafts alongside salt deposits and workers swinging pickaxesis 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 Domenechs 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 companys 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 Medias petition, set aside the Boards order, and deny the Boards 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 themurder of conservative protestersand other outrageous statements. I also supported the free speech rights of University of Rhode Island professorErik Loomis,who defended the murder of a conservative protester and said that he sawnothing 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,tweetingthat 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 togasorkillortortureconservatives 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 thenkilled himselfa 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 ofThe Federalistto 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:

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