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The Federalist Hit With Labor Complaint Over Founder’s Tweets

Sept. 27, 2019, 11:13 PM

The federal government wants the publisher of conservative online magazine The Federalist to delete his apparently anti-union June 6 tweet.

Ben Domenech tagged the magazine’s handle and relayed a thought about the first person who might want to organize their co-workers and form a union in The Federalist’s workplace: “I swear I’ll send you back to the salt mine.”

The National Labor Relations Board is now prosecuting a case against the publication’s parent company, FDRLST Media LLC, alleging the tweet violates federal labor laws that give private-sector workers the right to unionize and act collectively for protection without interference from their employer.

The decision to file a complaint based on the charge indicates the agency considers that sort of statement a violation of the act, and will enforce the law against similar comments made on social media, so long as it’s reasonable to believe that employees will see or learn about their superiors’ statements.

The founder of sports website Barstool Sports found himself similarly ensnared in an unfair labor practice case after threatening employees over unionization on Twitter. And an NLRB administrative law judge held Sep. 27 that certain tweets by Tesla CEO Elon Musk violated labor laws.

Domenech and the publication “threatened employees with reprisals and implicitly threatened employees with reprisals and implicitly threatened employees with loss of their jobs if they formed or supported a union,” the agency’s New York office said in a complaint obtained by Bloomberg Law.

As “part of the remedy for the unfair labor practices alleged,” the NLRB “General Counsel seeks an Order requiring the Respondent to delete the tweet” and to email and post a notice in its offices informing employees of their rights under the National Labor Relations Act.

Attorneys with the New Civil Liberties Alliance are representing The Federalist. The organization was founded to defend constitutional freedoms against the “Administrative State,” according to its website.

In the formal answer to the complaint, The Federalist’s attorneys argued that the NLRB lacks authority to investigate or prosecute the matter, and invoked the First Amendment. They also issued a blanket denial of the allegations—a common tactic in the early stages of litigation.

“As far as the speech angle is concerned, this is a situation where someone, on their personal Twitter account, expressed a viewpoint, so any action against that kind of speech would implicate First Amendment concerns,” Aditya Dynar, one of the Alliance attorneys on the case told Bloomberg Law Sep. 27. “We’re thinking of filing a motion to dismiss where we’ll flesh out all our arguments.”

The NLRB didn’t disclose the identity of the person who filed the complaint, per its protocols. The agency can accept charges against employers from any individual, even if they come from a non-employee.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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