Tuesday, November 24, 2020

NLRB: Ben Domenech's joke tweet about sending Federalist employees to the "salt mines" violates the NLRA

So, Ben Domenech, publisher of The Federalist (a conservative online publication), thought it would be funny to post on Twitter: "FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine." 

The NLRB didn't find it quite so funny. 

Earlier this year, an ALJ ruled that the tweet violated the National Labor Relations Act. Earlier today, the NLRB affirmed the ruling with a minor modification to the Order (changing the order from requiring the employer to delete the tweet, to requiring the employer to direct Domenech to delete the tweet as it is on his personal account). 

The NLRB concluded:

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 Federalist]. In addition, the reference to sending that employee "back to the salt mine" reasonably implied that the response would be adverse. 

Obviously, employers cannot threaten via social media to retaliate against employees who take steps to unionize. It seems kind of silly in this particular context because (1) it was obviously a joke, and (2) no employees were actually retaliated against or even trying to unionize (two employees actually submitted affidavits that they thought the tweet was sarcastic and funny, and not threatening). That said, the ALJ cited some past precedent for the proposition that "I was only joking" is no defense.  

I guess the takeaway here is that employers (supervisors, officers, etc.) joking about retaliation on social media is like joking about having a bomb in your carry-on. Probably best to keep those jokes to yourself, because the government agents will take them seriously. 

Domenech doesn't seem too broken up about it . . . he's currently selling The Federalist Salt Mine Co. T-shirts online. 

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