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NLRB’s ‘Salt Mine’ Tweet Decision Overturned by 3rd Cir. (1)

May 20, 2022, 2:06 PMUpdated: May 20, 2022, 5:22 PM

The NLRB was wrong to rule that the publisher of conservative online magazine the Federalist unlawfully threatened workers by tweeting that he’d send them “back to the salt mine” if they tried to unionize, a federal appeals court in Philadelphia held.

The National Labor Relations Board lacked the evidence to support its ruling against FDRLST Media LLC, which runs the magazine, for publisher Ben Domenech’s “salt mine” tweet, the US Court of Appeals for the Third Circuit ruled Friday.

“The record contains no sign—indeed, no inkling—of any circumstance at FDRLST Media that leads us to conclude that a reasonable employee would interpret Domenech’s tweet as a veiled threat,” the court said.

The ruling marks a setback in the NLRB’s efforts to crack down on high-profile figures tweeting anti-union comments.

The board has ruled that Tesla CEO Elon Musk’s tweet suggesting workers would lose stock options if they unionized was an unlawful threat. The agency also settled with Barstool Sports in a case involving its co-founder’s tweet threatening to fire workers for contacting a union supporter to talk about organizing.

A Third Circuit panel of Republican-appointed judges cited the features of communication on Twitter as reasons why Domenech’s “salt mine” tweet wouldn’t be threatening.

Twitter “encourages users to express opinions in exaggerated or sarcastic terms,” the court said. Domenech sent his message to his more than 80,000 followers and made it publicly available, rather than sending it directly to the Federalist’s six employees, it said.

“These characteristics of Domenech’s tweet would give a reasonable FDRLST Media employee even more reason to read the tweet as mocking a rival internet media company or commenting on a timely socio-political issue than as threatening reprisal,” Judge Thomas Hardiman, a George W. Bush appointee, wrote for the Third Circuit panel.

The NLRB ignored crucial context, such as the labor environment at the Federalist, the subjects that the magazine publishes commentary on, and what its workers thought about the tweet, according to the panel, which also included Judges Paul Matey, a Donald Trump appointee, and Anthony Scirica, a Ronald Reagan appointee.

Workers’ subjective impressions of employer conduct—while not dispositive—are relevant when deciding whether a statement was coercive, especially when the employer claims it was speaking in jest, the panel said.

“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?,’” Hardiman wrote. “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.”

NLRB Wins on Jurisdiction

While the Third Circuit overturned the NLRB’s finding on the “salt mine” tweet, the court endorsed the agency’s broad jurisdiction over labor relations in the private sector.

The court reaffirmed that NLRB prosecutors could issue a complaint in the case even though it was based on a charge filed by Joel Fleming, a Massachusetts resident who doesn’t work for FDRLST Media or have any connection to FDRLST Media. Circuit precedent going back nearly 60 years has recognized the validity of the board’s right to grant standing to any party to file charges.

The National Labor Relations Act is “remarkably broad in scope and power,” the court said.

“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,” Hardiman wrote.

The court also rejected FDRLST Media’s arguments that the NLRB’s New York regional office lacked jurisdiction over the company, which is incorporated in Delaware and operates out of Washington, D.C.

Judge Matey filled a concurring opinion arguing that the NLRB had no jurisdiction over the case because the charge was filed by “someone who took offense to something seen while scrolling Twitter” rather than a truly aggrieved party.

Domenech called the NLRB case “taxpayer-funded ideological harassment” in a statement after the Friday ruling, saying the decision overturning the board raised “key questions about the scope of the NLRB.”

“My thanks to the Third Circuit for this decision, which honors and defends free speech and the right to tell a joke even if a humorless Twitter troll doesn’t get it,” he said.

An NLRB spokeswoman declined to comment on the ruling.

The case is FDRLST Media v. NLRB, 3d Cir., No. 20-03434, 5/20/22.

(Updated with additional reporting, details from opinion.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com