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The Federalist Publisher’s Tweet Violated Labor Law, NLRB Rules

Nov. 24, 2020, 11:50 PM

The publisher of conservative online magazine The Federalist unlawfully threatened workers when he said via Twitter that he’d send them “back to the salt mine” if they attempted to form a union, the National Labor Relations Board held.

“We find that employees would reasonably view the message as expressing an intent to take swift action against any employee who tried to unionize the Respondent,” the NLRB said in a ruling Tuesday. “In addition, the reference to sending that employee ‘back to the salt mine’ reasonably implied that the response would be adverse.”

The agency in recent years has policed high-profile executives’ anti-union language on social media, citing Tesla Inc. CEO Elon Musk for a tweet and reaching a settlement with Barstool Sports co-founder David Portnoy that required the deletion of offending tweets.

The decision upholds an administrative law judge’s ruling that FDRLST Media publisher Ben Domenech’s tweet violated federal labor law. The board ordered Domenech to delete the “salt mine” statement from his personal Twitter account.

FDRLST will challenge the NLRB’s ruling to a federal appeals court, said the company’s lawyer, Aditya Dynar of the New Civil Liberties Alliance.

“Today’s decision shows that NLRB lacks both common sense and a sense of humor,” Dynar said in a statement. “It disregarded sworn employee statements saying that they perceived the tweet as just a joke.”

In Tuesday’s ruling, an NLRB panel of Chairman John Ring (R) and members Marvin Kaplan (R) and Lauren McFerran (D) said the motive behind Domenech’s tweet was irrelevant. What matters is whether the statement tends to interfere with workers’ rights under the National Labor Relations Act, the board said.

The NLRB also rejected the FDRLST’s legal argument that because Domenech made the statement on Twitter, it didn’t show an intent to communicate with the company’s workers. The wording of the tweet itself spells out that it was directed at workers, but regardless, threats that weren’t intended for workers but were seen by them violates labor law under board precedent, the NLRB said.

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

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

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