No Laughing Matter: The Third Circuit Reverses NLRB Sanction Over Joke

In our age of rage, humor was one of the earliest victims. It is not that humor is not allowed, it is merely selectively tolerated. Thus, Twitter suspended the satirical site, Babylon Bee, with the support of many who claim to support free speech. In Canada, a comedian was actually prosecuted for trash talking in a comedy club. Even non-comedians can find themselves on the wrong side of a punch line. Recently, Ben Domenech of The Federalist found himself pursued over a single tweet teasing the employees at his publication. After referencing the struggle of Vox Media with a union, Domenech joked in a tweet that the salt mines await any employees who spoke of unionizing. No one was calling for a union at The Federalist and it was received by the staff as an obvious joke. However, a liberal lawyer from Massachusetts, Joel Fleming, filed a complaint with the National Labor Relations Board. In a highly controversial opinion, NLRB administrative law judge, Kenneth Chu, ruled against The Federalist. The United States Court of Appeals for the Third Circuit just overturned Chu and stated the obvious: it was a joke.

This litigation began in early June 2019 when Vox Media’s writers staged a walkout to call for a collective bargaining contract. Conservatives found the protest irresistible given Vox’s liberal, pro-union philosophy.  One of those pouncing on the irony was Domenech, the publisher of The Federalist, who sent out a tongue-in-cheek tweet that joked “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”

The employees had reportedly not called for any union organizing at The Federalist and took the tweet as intended, even returning the joke by bringing in salt shakers and other items.

Even for the humor-impaired, the tweet was obviously meant in jest and did not refer to any actual union organizing at the office. However, Fleming, who has been criticized as a far left internet troll, filed a formal complaint. He was identified by Reuters as a securities litigator and partner with Block & Leviton in Boston.

Ironically, Fleming just succeeded in creating significant new precedent in favor of employers against future such lawsuits.

There is a rising concern over activists using the courts to harass or to hinder those with opposing views. In this case, Fleming was accused of using the NLRB to hammer an influential conservative over a 19-word tweet. Many noted that it was bizarre for a Block & Leviton partner in Boston to file a grievance over a joke directed at employees of a publication with which he has no connection. Indeed, on his Twitter site, Fleming seems to relish the disconnect by describing himself as “A Bernie-supporting class action lawyer in Massachusetts with no ties to The Federalist or anyone who works there.”

That 19-word tweet has now resulted in protracted and costly litigation before both the NLRB and the federal courts.

Nevertheless, Judge Chu found a violation of labor laws. Chu, concluded that this was a violation of Section 8(a)(1) of the Wagner Act, 29 U.S.C. § 158(a)(1):

It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights [to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection]. (Emphasis added)

Judge Chu, dismissed the fact that this was a joke:

Obviously, the FDRLST employees are not literally being sent back to the salt mines. Idioms have, however, hidden meanings…Work in a salt mine is physically challenging and monotonous, and any job that feels that tedious can be called a salt mine… The expression that he will send the FDRLST employees back to the salt mine for attempting to unionize is an obvious threat. 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… I agree with the counsel for the General Counsel that a reasonable interpretation of the expression meant that working conditions would worsen or employee benefits would be jeopardized if employees attempted to unionize.

The Federalist refused an offer to settle the matter by deleting the joke and making some apologetic statement on the right to unionize. It proceeded to appeal Judge Chu’s ruling and just secured a sweeping victory.

Appellate Judges Thomas Hardiman, Paul Matey, and Senior Circuit Judge Anthony Scirica were unanimous in rejecting the claim.  It noted that it was bound by prior case law to read the jurisdiction of the NLRB broadly: “Unfortunate as it may be, the Act as written and interpreted empowers a politically-motivated busybody as much as a concerned employee or civic-minded whistleblower.” However, it then trashed Judge Chu’s decision on the merits.

Forgive the long quote from Judge Hardiman’s decision but it is worth reading:

But what constitutes a prohibited “threat”? To qualify as such, an employer’s statement must warn of adverse consequences in a way that “would tend to coerce a reasonable employee” not to exercise her labor rights. Garry Mfg. Co., 630 F.2d at 938. The test for coercion is objective: “the employer’s intent is irrelevant and the proper inquiry is the impression of a reasonable employee.” Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167, 176 (3d Cir. 2002). …

The employer’s alleged threat is not viewed in a vacuum, however.When considering an alleged unfair labor practice, an employer’s conduct must be examined “in light of all the existing circumstances.” Wheeling-Pittsburgh Steel Corp. v. NLRB, 618 F.2d 1009, 1020 (3d Cir. 1980) (emphasis added) (citations omitted); see also NLRB v. Va. Elec. & Power Co., 314 U.S. 469, 479 (1941) (The Board’s finding of an unfair labor practice must be based “upon the whole course of conduct revealed by [the] record.”). Context is an important part of language, and that’s especially true where, as in this case, pure speech is at issue.

The ALJ found that Domenech’s tweet was “an obvious threat” that “had no other purpose except to threaten the FDRLST [Media] employees with unspecified reprisals.” FDRLST Media, 370 N.L.R.B. at 5. The Board agreed. In adopting the ALJ’s finding, the Board disclaimed any reliance on the tweet’s timing or The Federalist’s editorial content, leaving only the words of the tweet, devoid of any context, as support. But the Board erred when it disregarded relevant contextual evidence. ImageFIRST, 910 F.3d at 736 (citation omitted). Even more problematic than the timing and editorial content the Board ignored are the circumstances surrounding the tweet that the Board and the ALJ never considered. Had the Board considered the tweet’s full context, it could not have concluded that a reasonable FDRLST Media employee would view the tweet as a threat of reprisal.

For starters, FDRLST Media is a tiny media company. Its six employees (not including Domenech) are writers and editors. The tweet’s suggestion that these employees might be sent “back” to work in a “salt mine” is farcical. The image evoked—that of writers tapping away on laptops in dimly-lit mineshafts alongside salt deposits and workers swinging pickaxes—is as bizarre as it is comical. So from the words of the tweet alone, we cannot conclude that a reasonable FDRLST Media employee would view Domenech’s tweet as a plausible threat of reprisal….

Humor is subjective. What is funny to a fisherman may be lost on a farmer. A quip about New England winters is unlikely to get a laugh in Alaska. The propensity for jokes to fall flat for want of context or audience understanding has given rise to idioms like “I guess you had to be there” and “too soon?”

Excluding context and viewing a statement in isolation, as the Board did here, could cause one to conclude that “break a leg” is always a threat…

Here, the Board spent its resources investigating an online media company with seven employees because of a facetious and sarcastic tweet by the company’s executive officer. Because the Board lost the forest for the trees by failing to consider the tweet in context, it misconstrued a facetious remark as a true threat. We will accordingly grant FDRLST Media’s petition, set aside the Board’s order, and deny the Board’s petition for enforcement.

In other words, it was a joke.

The effort of many on the left has been pounce on any tweet or joke or comment to seek to cancel or sanction those on the right. That has been particularly the pattern at universities. There is seldom any effort to fire professors for stating outrageous things about conservatives or Republicans. However, conservative or dissenting faculty can expect little support from their deans or university presidents in any controversy.

In past postings, I have defended faculty who have made an array of disturbing comments about “detonating white people,” denouncing policecalling for Republicans to suffer,  strangling police officerscelebrating the death of conservativescalling for the killing of Trump supporters, supporting the murder of conservative protesters and other outrageous statements. I also supported the free speech rights of University of Rhode Island professor Erik Loomis, who defended the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence.

They really did not need such defense since few faculty or students denounced them, let alone sought their removal. Indeed, at the University of California campus, professors actually rallied around a professor who physically assaulted pro-life advocates and tore down their display.

There is a notable difference in how universities respond depending on the viewpoint. Anyone who raises such objections is immediately set upon by a mob demanding their investigation or termination.

One such campaign led to a truly tragic outcome with criminology professor Mike Adams at the University of North Carolina (Wilmington). Adams was a conservative faculty member with controversial writings who had to go to court to stop prior efforts to remove him. He then tweeted a condemnation of North Carolina Gov. Roy Cooper for his pandemic rules, tweeting that he had dined with six men at a six-seat table and “felt like a free man who was not living in the slave state of North Carolina” before adding: “Massa Cooper, let my people go.” It was a stupid and offensive tweet. However, we have seen extreme comments on the left — including calls to gas or kill or torture conservatives — be tolerated or even celebrated at universities.

Celebrities, faculty and students demanded that Adams be fired. After weeks of public pummeling, Adams relented and took a settlement to resign. He then killed himself a few days before his final day as a professor.

The litigation over this joke is worrisome. It was not just the effort of a Boston lawyer to use the NLRB against someone with opposing political views. It was the fact that he was successful in getting the NLRB to find a violation. Many such targeted individuals or groups do not have the resources of The Federalist to litigate such a claim, particularly given the deference afforded to administrative rulings.

So for now, Joel Fleming, Judge Chu, and the NLRB have been frustrated in their effort to protect the world from a joke that could crush unions in its mirthful path. The dangers should not be ignored. As Judge Chu warned jokes can have “hidden meanings” and cause untold harm as established earlier by English scientists:

 

 

Here is the opinion: The Federalist Decision

56 thoughts on “No Laughing Matter: The Third Circuit Reverses NLRB Sanction Over Joke”

  1. I’m not sure which enemy of norms bothers me more, the judge or the lawyer. The lawyer is just an ambulance chaser that chases conservatives the way a slip and fall attorney chases banana peels and the subsequent ambulances.

    I hope that the lawyer is at least embarrassed by getting slapped down so publicly and humiliatingly, but as well all know, shamelessness is a superpower among “activists”.

    As for our one particular Mr, Anonymous, we all wish the fool would go away, we are on to his little game, we know he is a paid troll and we can almost see Ron Klain’s fingerprints on his keyboard. Mr. Anonymous has the same personality as COS Ron Klain and America’s favorite Chinese spy target Eric Swalwell. They, like Anonymous, are thin skinned, nasty, immature and most importantly never right.

    Anonymous, like Swalwell, is the woman at work who always brings the cake or pastry because they know that they have zero talent and they hope they get by with their “personality”.

    Jeff on the other hand is always wrong, obsessed with Trump and Fox and always off topic, but he isn’t nearly as nasty as the paid troll Anonymous.

  2. The fascist Left killed comedy—and God— years ago. They subsequently nominated themselves as ‘the Divine’ but in their insane rage have yet to find a compliment for the smile and a laugh.

  3. Wouldn’t it be a hoot if every stand up comic in the nation coordinated a weekend where they told every politically incorrect offensive word joke and told the weenies: “We’re back and kiss our collective behind’s”.

  4. JT states “No Laughing Matter”

    It’s time to pacify these belly aching cry babies with a loaded gun….Three Stooges style.

  5. Idioms have, however, hidden meanings… This is how Democrats manufactured an impeachment in the House.

    Excluding context and viewing a statement in isolation, as the Board did here, could cause one to conclude that “break a leg” is always a threat… And this is how sober minds in the Senate responded.

    Good for the Third Circuit. A ray of sunshine on a Monday morning.

  6. Interesting that this case raised the importance of context, because that is exactly what’s always missing in the mainstream media. The recent crisis in Ukraine is just the latest example of the media’s rush to propaganda with no concern for the historical context. In fact, one could argue that the media is especially watchful to NOT include any context in any story — lest it change the dominant narrative.

  7. Judge Hardiman’s decision was spot on.
    Whatever happened to having a sense of humor? Or common sense?
    The Professor is correct when he says this is the age of rage, where people go out of their way and to great lengths to find something they claim as offensive and then try to have some one canceled.

  8. More Civics Education please! What we are seeing is “Unconstitutional-Authoritarianism” by the leadership of both parties. Instead of the U.S. Constitution being a legal “restraint” on unconstitutional authority, too many officials view the constitutional-rule-of-law to be optional when convenient. In that scenario, the First Amendment is largely ignored. The constitutional Oath of Office – that police-chiefs, agency heads, military leaders and intel leaders agree to follow is largely ignored.

  9. Liberals lost their humor along with their minds. There’s no coming back from this — you can’t regrow dead gray matter.

  10. Journalist and ethics! I did not think that those terms were allowed in the same sentence. I have to disagree with the professor slightly in this column. The judge and the NLRB were the joke. The 3rd circuit delivered an excellent rap across the knuckles and placed everything in the appropriate context. The complaint to the NLRB made me think about the musings of a dung beetle And how little I care about them.

  11. Everyone from Obama and Hillary down should be in jail over the Russian Hoax. 75% of government should be removed from the DC area! DC is Lost!

  12. Democrats the power of communist/fascists of the USSR, 1930’s German Socialists, Mao.
    The Constitution is ignored by Democrats as they STEAL ever larger amounts of money! 75% of Federal Government should be cut…and any non-profit giving anyone benefit of more than $100k should be TAXABLE!
    Time to end the Democrats power grab!

    1. Unless you were using figurative speech, I have not seen any evidence that Mike Adams’ death was a murder, rather than a suicide. However, the day that man–who had a delightful sense of humor–died, was one of the darkest days in the history of the American antiversity. And it has had many dark days.

  13. The probelm wasn’t the jackarse lawyer with an excised humor bone ( a definitve prodrome of liberalism) it was the jackarse NLRB Judge Chu who proved to us all that common sense is rarely common among lots of the ethos-challenged black-robed set. Thanks Judge Chu for showing us who you truly are and yes, “[I]dioms have, however, hidden meanings.” Here’s one not so impenetrable: Time for Judgey to “go back to the drawing board.”

  14. “After weeks of public pummeling, Adams relented and took a settlement to resign. He then killed himself a few days before his final day as a professor.”

    Technically speaking, wasn’t the day Adams killed himself his final day as a professor?

    And Loomis really got up in your Cheerios, didn’t he? He might make the most appearances on the Turley hate list here on the blog.

    eb

    1. The Point—————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————–Anonymous.

  15. This s insane. Judge Chu should be fired and Fleming should be sanctioned by the bar. I am not holding my breath.

  16. Turley says:

    “dissenting faculty can expect little support from their deans or university presidents in any controversy.”

    I wonder if this is an indirect commentary on Turley’s humiliation by the lawmaker during the commencement exercises at his law school. Perhaps, he did not get the backing of the administration to issue a statement is his support.

    Personally, I have no problem with public criticism even at a commencement (though I agree that she misinterpreted Turley’s statements). It’s important that people say publicly what they say behind a person’s back. There is no inopportune time to make a good speech to counter bad speech or bad conduct. Shaming someone in public is very effective in holding someone accountable for their bad rhetoric. Moreover, I object to alluding to a person without naming the person. Since nearly everyone in attendance knew to whom she was referring, why is it more polite not to identify Turley by name?

    I would not have criticized Turley’s legal analysis at a commencement service. Instead, I would have warned the graduates not to sell out to disreputable media companies for a quick buck. To think of their reputations and the honor of their profession. That is fitting guidance at a graduation.

      1. There are commentators on MSNBC who I agree with Turley are rage provocateurs, e.g., Elie Mystal and Joy Reid. I like Hayes and O’Donnell.

        But to answer you question: not compared to Fox. Many of the guests brought on by Carlson are conservative talk radio shock jocks as opposed to actual journalists which are nearly the exclusive guests on MSNBC prime time. I know you will argue that these journalists are from liberal papers, but at least they are journalists sworn to a code of journalistic ethics. Shock jocks are rage provocateurs in a bid to get listeners’ attention by being as outrageously opinionated as they can.

          1. Yep: If Jeff can tolerate those two among the others, that is telling as to his political persuasions and philosophies.

        1. RE:””but at least they are journalists sworn to a code of journalistic ethics” Show us what incontrovertible and impartial evidence you have that this lot are indeed journalists and sworn to a code of ethics. One might have assumed the same for the NYT had history not intervened, their forebears allegedly having supported slavery and the Confederacy. {The Times Building not yet burned to the ground by BLM for same] Personally, when one considers the likes of an Andrew Weissman appointed to the faculty of the NYU Law School, this farce of a Fleming, and District Attorneys whose mandate is to seek the truth, and no longer do, I’m beginning to seriously consider the wisdom of William Shakespeare, my dear wife, Judy Blum Sheindlin [whose father I knew well], Professor Turley, and certain others in the exception. “Things are seldom what they seem, skim milk masquerades as cream”……………..’W.S.Gilbert:.

          1. I’m not nearly as cynical as you. I believe Weissman was an honorable lawyer who acted righteously. With whom shall we compare him? Giuliani? Powell? Cohen? Eastman?

        2. “but at least they are journalists sworn to a code of journalistic ethics.” Are you having a laugh? You are always denigrating Fox News. Carlson, Hannity, Ingraham are opinion hosts. I would not call them journalists. But, evidently, you do not watch anything before the 7pm EST opinion programs, ie, Brett Baier, Martha Mccallum, etc. Considering that the “journalists” on MSNBC were some of the movers and shakers of the Trump- Russia Collusion idiocy they are at least guilty of intellectual laziness. I tend to look at the NYT, WAPO, MSNBC, CNN, DNC, et al as America’s answer to an Oligarchy.

          1. Karen says:

            “You are always denigrating Fox News.”

            Yeah, that’s right!

            “Carlson, Hannity, Ingraham are opinion hosts. I would not call them journalists.”

            That fact is no excuse to engage in disinformation. Even an opinion host can be sued for defamation!

            “But, evidently, you do not watch anything before the 7pm EST opinion programs, ie, Brett Baier, Martha Mccallum, etc.”

            I don’t. The most watched and influential programs happen in prime time. The news programs provide plausible deniability, but the prime time hosts create Fox’s false narratives.

            “Considering that the “journalists” on MSNBC were some of the movers and shakers of the Trump- Russia Collusion idiocy they are at least guilty of intellectual laziness.”

            That is a Trumpist lie not unlike the Big Lie.
            There was no proven *criminal conspiracy*, but there was collusion between Manafort and Kilimnik. That is an indisputable fact.

            “I tend to look at the NYT, WAPO, MSNBC, CNN, DNC, et al as America’s answer to an Oligarchy.”

            You are a Trumpist. To you, they are fake news. Our country is irreparably divided.

    1. Retard, you are not anywhere close to the topic. But is guess that is the raw limit if your intellectual heft.

        1. It;s not an insult when you prove it correct constantly.
          You constant attempts at speaking for our host is the behavior of a retard that lacks the ability to learn simple things
          Hiding behind Turley does not hide your retardation, only illuminates.

    2. “Since nearly everyone in attendance knew to whom she was referring, why is it more polite not to identify Turley by name? ” I think she probably didn’t mention him by name because she was afraid he would sue her for defamation. Kind of like Amber Heard not specifically naming Johnny Depp but everyone knew who she was writing about. imho

      1. No. It’s her opinion which is not actionable. Moreover, it is not mandatory to mention someone by name in order to defame them when the person slandered is no mystery!

        1. “No. It’s her opinion which is not actionable.” I don’t know about that. However, Cong. Wild also made numerous false statements of fact.

    3. Jeff,
      ” It’s important that people say publicly what they say behind a person’s back” I agree totally. I will add it is important that what people put in print, they would say that same thing to the person’s face. Too many ” Keyboard Pu**ies” I would never post anything here that I would not say to someone standing next to me. I tried to engage a certain idiot here whose initials are DM. He responded with an insult. I would love to have been standing next to him when he said it. He would have found out how good his health insurance coverage was.

        1. Jeff,
          Why? Because I won’t let a weak, malevolent, ill -informed person insult me without repercussions? Which in reality would never happen face to face. Have I ever been disrespectful to you? I have stood up for you on many occasions. And although we don’t agree on many things, we have always had respectful discourse which I have repeatedly thanked you for. And the first time I go out of my ” comfort zone” an idiot attacks me with a personal insult. I am sorry, but I will never accept that. I always give people respect. Until they prove that they don’t deserve it. And they don’t have to agree with me to get that respect. Just don’t insult my intelligence.

          1. I’m just worried you have a violent streak and might take a swing at me should I offend you!

            1. Jeff,
              That would never happen. I consider you a friend. And outside of you physically attacking a family member, I would never put my hands on you. I am not worried about you offending me. We might vehemently disagree, but I welcome that .I want to hear the other side. No side is right all of the time 100%. How else am I going to learn unless I hear the ” other side”? That is why I am such a defender of free speech.
              On my ” violent streak”, My grade school class had 147 members. My High School class had 224 members ( All boys). It has been my experience that when a person who insults you behind your back is confronted, that person usually wilts. There is no need for violence.
              If my previous post gives you any pause to meet with me, I apologize. I ask you to take my word for it that I would never cause you any harm.
              Besides, being an Italian, from Chicago, who owned a trucking company, most think that I am ” mobbed up” so they won’t insult me anyway.
              See, sometimes stereotypes are good.

              1. I was just pulling your leg. But now that you mention your Italian heritage, a gambler and in the trucking business, I am worried again. How did you avoid being shaken down by the Outfit? For all I know, your invitation to visit you has been arranged by my sworn enemies on this blog. I’ll take an Uber to and from the airport if it is all the same to you. I rather not take a ride with you….

                1. Jeff,
                  I certainly appreciate your humor. We definitely need it here. To answer your question, I ” know people”. BTW, the surest way to know that someone is NOT involved in the Outfit, is if they say they are.

    4. Jeff: “I would have warned the graduates not to sell out to disreputable media companies for a quick buck. To think of their reputations and the honor of their profession. That is fitting guidance at a graduation.”
      you are simply and apparently a liberal and disturbed cheap shot artist and know no bounds. You are always just cheap shooting the Prof and even Fox. Why don’t you just stick with all the alphabets of MSNBC, etc., and retain the screed for a period?

  17. No wonder both lefties and much of the federal government are held in contempt by ordinary Americans.

    Lefties object to being considered retards, but they earn the label.

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