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NLRB’s ‘Salt Mine’ Tweet Decision Under Fire at Third Circuit

Nov. 10, 2021, 9:14 PM

A federal appeals court in Philadelphia slammed the National Labor Relations Board’s decision 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.

During oral argument Wednesday at the U.S. Court of Appeals for the Third Circuit, one judge focused on First Amendment concerns about sanctioning FDRLST Media, which runs the magazine, for a tweet that arguably was a joke. Another judge questioned whether the NLRB should have taken the case based on an initial charge that was filed by a person who didn’t work at the Federalist.

“At some point, it seems as though what you’re asking for here is a new rule, one that creates or at least solidifies what you believe has always been your jurisdiction as a free-ranging entity that can consider the workplace conditions of employers across America,” Judge Paul Matey told the NLRB lawyer at oral argument. “One that extends to expressions that are clearly understood by reasonable speakers of English as humor.”

The case could have major implications for the scope of NLRB power and its ability to police anti-union rhetoric that appears on social media.

The NLRB general counsel’s office brought the case over the Federalist publisher Ben Domenech’s June 2019 “salt mine” tweet based on a charge filed by an attorney in Massachusetts who doesn’t work for the Federalist. The NLRB generally permits members of the public to file charges alleging labor violations.

The NLRB rejected FDRLST Media’s argument that Domenech’s tweet was just a joke and not a threat in its Nov. 25 ruling. Workers would reasonably view the tweet as a message that the company would take quick and adverse action against any of them that tried to unionize, the board said.

FDRLST Media appealed the NLRB’s ruling to the Third Circuit. A panel of three judges appointed by Republican presidents was selected to hear the case.

‘Working in a Salt Mine?’

The lawyer for FDRLST Media, Jared McClain of the New Civil Liberties Alliance, spent most of his time at the lectern Wednesday attacking the NLRB’s decision based on the charging party not being directly affected by the tweet.

But Judge Thomas Hardiman told McClain that he was “wasting” his time on jurisdictional issues at the expense of a stronger First Amendment argument. Later in the session, Hardiman pressed NLRB lawyer Micah Jost on what the board considered when it determined that the tweet was an unlawful threat.

“Were any Federalist employees working in a salt mine?” Hardiman asked. “How could the tweeter send somebody back to a salt mine when they were never there in the first place?”

Back to the salt mine, Jost responded, is “universally understood in the English language as an idiom referring to returning to something you’d rather not do.” The tweet could be read as Domenech threatening to send workers to less favorable working conditions if they try to form a union, Jost said.

Jost also emphasized that a long line of Third Circuit precedent says that employees’ subjective interpretation of a threat isn’t relevant. The crucial factor is the objective tendency for a statement to coerce, he said.

Who Can File Charges

While Hardiman appeared cold on FDRLST Media’s jurisdictional arguments—and Judge Anthony Scirica was largely silent—Matey, the third judge on the panel, questioned whether the NLRB could prosecute a case based on charges from a person “wholly unaffected” by the alleged threat.

Matey asked for a prior case that has a charging party that mirrors the one in the “salt mine” tweet case.

There are cases in which it wasn’t clear what the charging party’s relationship was to the dispute, Jost said, but that’s partly because U.S. Supreme Court and Third Circuit precedent going back decades is “crystal clear” that it doesn’t matter.

“I don’t know that it’s crystal clear,” Matey responded, noting that the leading high court case was handed down before the National Labor Relations Act was amended to include a clause about aggrieved workers.

Earlier in the argument, Jost said that the NLRA amendment mentioning aggrieved workers was a narrow exception to charge filing deadlines. The exception, added in light of the large share of the U.S. population that served in World War II, is only for somebody who was allegedly hurt by a labor law violation but couldn’t meet the standard deadline due to military service, he said.

The case is FDRLST Media v. NLRB, 3d Cir., No. 20-03434, oral argument 11/10/21.

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

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com