Joke’s Not On The Federalist

FDERLST Media, LLC the publisher of The Federalist internet magazine recently prevailed in the United States Court of Appeals for the Third Circuit on an unfair labor charge that arose from a tweet by its publisher, Ben Domenech.  The question for the court was whether the tweet was a joke or a threat.  The NLRB concluded the tweet was a threat.  The Appellate Court found it was merely a joke.

Domenech posted the tweet on the same day that unionized employees of Vox Media walked off the job during labor negotiations.  Domenech tweeted  “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” A Massachusetts lawyer with no connection to The Federalist filed an unfair labor charge, and the NLRB ultimately agreed.  The NLRB found that the tweet threatened The Federalist employees with “loss of their jobs if they formed or supported a union.”  In making that ruling, the NLRB found that evidence of the subjective interpretation of The Federalist employees (who considered the tweet a joke) was irrelevant.

On appeal, the Third Circuit first dismissed The Federalist’s argument that the case should not proceed since no one at The Federalist complained.  The Third Circuit, however, cited to a large amount of precedent for the rule that “any person” may file an unfair labor charge.  It did not require that person to be aggrieved.

Having dispensed with the standing argument, the appellate court considered the merits.  And on the merits, the appellate court reversed the NLRB in no uncertain terms.  As the appellate court noted, context matters. Included in the context is the fact that The Federalist is a rather small operation.  It consists of six employees (not including Domenech) who serve as writers and editors.  In the court’s view, the notion that these folks would be banished to dimly-lit mineshafts was “bizarre as it is comical.”

The court also noted that any assessment of the comment must be made in the “context of its labor relations setting.”  That is, there needs to be some evidence of labor friction in addition to the comment itself.  Here, there was no evidence of any tension.

The court also noted it was significant that The Federalist “publishes commentary on a wide variety of contemporary and newsworthy and controversial topics.”  Domenech used his Twitter account to communicate with followers of The Federalist, not with his employees.  The tweet was delivered to the larger audience as a comment on the Vox situation, not as a directive to employees.

Finally, the court noted that the subjective interpretation of employees was not dispositive, but it was still relevant.  And in the court’s view, they are especially relevant when the employer claims he made his statement in jest.  The fact that the record contained no evidence that any employee took the tweet seriously was relevant to the court’s consideration.

There’s always a risk with humor – the audience may not find it funny or just not get the joke. It’s especially dicey in the world of labor relations.  The Federalist ultimately prevailed here, but it may have been a little too close for comfort. And that’s not a laughing matter.