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The Federalist Publisher’s Tweet Was Unlawful: NLRB Judge (2)

April 23, 2020, 1:25 AM; Updated: April 23, 2020, 3:22 PM

The publisher of conservative online magazine The Federalist broke federal labor laws when he tweeted last year that he’d send employees “back to the salt mine” if they tried to unionize, a National Labor Relations Board administrative judge decided.

FDRLST Media chief Ben Domenech’s tweet was an “obvious threat"—not a joke or an expression of opinion shielded by the First Amendment—when viewed in light of workers’ legally protected rights, Judge Kenneth Chu said Wednesday. The timing of the tweet, which came on the same day of a walkout by union employees at Vox Media, supported the conclusion that Domenech was sending a message to employees, the judge held.

“Obviously, the FDRLST employees are not literally being sent back to the salt mines,” Chu wrote. “Idioms have, however, hidden meanings.”

The company will have to post physical notices in its offices and send email copies to employees, alerting them that FDRLST Media violated federal labor law and advising employees of their right to organize. That’s a standard remedy for relatively minor violations of the National Labor Relations Act.

The decision is one of several recent rulings from the agency finding businesses or executives liable for violating labor laws via Twitter, often by threatening some kind of consequence for employee organizing. Barstool Sports recently deleted an anti-union tweet by founder David Portnoy as part of its settlement of a labor board complaint. The agency has also cited Tesla Chief Executive Officer Elon Musk for his use of the social media platform.

The charge against the magazine was filed by Joel Fleming, 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 at companies.

FDRLST Media plans to appeal the decision, according to attorneys with the New Civil Liberties Alliance who are representing the company. They argue that Fleming shouldn’t have been permitted to file the charge.

“The main issue is not really the tweet per se or the underlying charge,” attorney Adi Dynar told Bloomberg Law Thursday. “It’s that a random person on the internet should not be abusing the administrative machinery for some personal motives.”

The company also argued that the tweet was a sarcastic joke, pointing to affidavits from two employees. Chu found that the context of the message, and the history of the term—referring to physically challenging, tedious work—suggest otherwise.

“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,” Chu said.

Fleming cheered the decision.

“I am pleased that the decision reaffirms the important principle that employers are not allowed to threaten their employees with reprisals for supporting a union or engaging in concerted activities,” Fleming told Bloomberg Law Wednesday.

Domenech won’t be required to delete the tweet.

(Updated with additional responses from FDRLST Media lawyer.)

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

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

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