Threatening Retaliation for Protected Activity Is No Joke


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Robert Koehler

Last week, an Administrative Law Judge (ALJ) at the National Labor Relations Board (NLRB) concluded that the Federalist’s top manager, Ben Domenech, violated the National Labor Relations Act (NLRA) when, on the same day as a 2019 Vox Media union walkout, Domenech tweeted “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”

This is an obviously correct decision that is consistent with both the statute and the NRLB case law. Section 8(a)(1) of the NLRA declares that it is an unfair labor practice to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Section 7 rights include the “right to … form, join, or assist labor organizations.” Threatening to retaliate against any worker who tries to unionize clearly interferes with and coerces employees in the exercise of their union rights.

Instead of settling the case, at no cost, in exchange for deleting the tweet and posting a notice promising not to interfere with union organizing, Domenech decided to procure the services of a crank legal organization called the New Civil Liberties Alliance (NCLA), led by a Mr. Hamburger. The NCLA, which appears to have no labor lawyers on staff, went on to embarrass itself in the NLRB proceeding, at one point moving to dismiss the case based on jurisdictional requirements in the Federal Rules of Civil Procedure, only to be informed by the agency that NLRB proceedings have never been governed by those rules.

The only defense the NCLA had that wasn’t laughable on its face was that Domenech was joking. The problem with this defense is that it has been repeatedly rejected by the NLRB and even the circuit courts (“real courts” according to Domenech). “I was just joking” is not an uncommon thing people say in response to unfair labor practice charges based on coercive statements. This is not usually tolerated as a defense because, as the Eight Circuit (326 F.2d 910) wrote quite elegantly in 1964, “executives who threaten in jest run the risk that those subject to their power might take them in earnest and conclude the remarks to be coercive.”

Even as far back at 1977, NLRB joke cases (231 NLRB No. 40) were repeating boilerplate like “it is well established that the coercive and unlawful effect of a statement is not blunted merely because interrogations of, warnings to, or disparaging statements about union adherents are accompanied by laughter or made in an offhand humorous way.” In that case, the manager had asked some workers why they were wearing union buttons, and when they replied “because everyone else is,” the manager said “I’ll be damned if y’all can’t fuck up a wet dream,” which caused the workers to laugh. Following precedent, the NLRB ruled that the manager’s statement violated the NLRA.

The NLRB case law is littered with these cases and there is nothing special about Domenech’s case. He threatened to retaliate against workers who engaged in protected activity and the fact that he did so in an “offhand humorous way” is no defense, according to well-settled law.

Unhappy with his loss, Domenech is now attempting to play the media game, writing in the Wall Street Journal that he is the victim of some extreme government overreach fueled by political enemies. He even got his friend Dan McLaughlin (the Baseball Crank) to write up a similarly histrionic piece at the National Review. The purpose of these articles is not to make legal arguments — neither of them do even though the Crank claims to be a lawyer — but instead to try to get the word out to conservative appointees either in the NRLB or in the circuit courts that this is a case they should get “creative” about, if you know what I mean.

Although this strategy has failed so far (the Trump-appointed NLRB General Counsel did not spike the case, even though he could have), this strategy could ultimately work. Judges are fundamentally politicians, not people who interpret and apply laws and precedents in a neutral fashion. So if you can get enough of them primed to understand what their side wants to happen, they can often make that happen.

But even with that said, it’s important to underline how completely without merit this whole crybaby performance is. The Federalist was not targeted for political reasons. Dave Portnoy, of Barstool Sports fame, was hit with an identical joke-threat case last year over a tweet he sent, a case that was instigated by at least one of the same individuals who instigated the Federalist case (I filed charges in both). But Portnoy apparently hired an actual labor lawyer who explained that his case was a sure loser, causing Portnoy to settle the case by deleting the tweet and posting a notice that he would not interfere with union activities.

Domenech could have done what Portnoy did and could still do what Portnoy did right now. He is the one who is choosing to waste time and money litigating a case where he has clearly broken the law on some kind of prayer that a conservative judge will ignore a half-century of settled law in order to let him skate.