Really? NLRB upholds ruling that Federalist publisher Ben Domenech threatened 'workers' rights' with 'back to the salt mine' joke

If you’ll recall, last year, Federalist publisher Ben Domenech responded to Vox writers staging a walkout with this jokey tweet:

FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine

— Ben Domenech (@bdomenech) June 7, 2019

Little did he know how much trouble he was in.

From National Review’s Dan McLaughlin this past April:

Normally, this would be the stuff that Twitter spats are made of, and not a federal case. But [class action lawyer Joel] Fleming went a step further: he filed a complaint with the NLRB, accusing Domenech of violating 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)

The reason we have a federal statute is to prevent actual attempts to prevent employees “in the exercise” of rights to organize a union — not pundits snarking about news stories on Twitter, and not workplaces where the employees have given no indication that they have any interest whatsoever in organizing. The Federalist has a grand total of six employees (counting Domenech), and two of them submitted affidavits saying they read this as a joke on current events. The NLRB didn’t call any witnesses or introduce any evidence that anybody in the organization thought this was anything but a snarky tweet. In fact, the tweet and some printouts from the Internet were all the evidence the NLRB had.

Amazingly, the NLRB administrative law judge, Kenneth Chu, concluded that none of this mattered, ruling that Domenech had violated the Wagner Act:

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.

FDRLST will challenge the NLRB’s ruling to a federal appeals court, said the company’s lawyer, Aditya Dynar of the New Civil Liberties Alliance.

“Today’s decision shows that NLRB lacks both common sense and a sense of humor,” Dynar said in a statement. “It disregarded sworn employee statements saying that they perceived the tweet as just a joke.”

In Tuesday’s ruling, an NLRB panel of Chairman John Ring (R) and members Marvin Kaplan (R) and Lauren McFerran (D) said the motive behind Domenech’s tweet was irrelevant. What matters is whether the statement tends to interfere with workers’ rights under the National Labor Relations Act, the board said.

Domenech’s tweet didn’t interfere with workers’ rights under the National Labor Relations Act. Or under any act.

https://twitter.com/DanFosterType/status/1331414362322513929

lol

— I got your #Unity right here (@jtLOL) November 25, 2020

ROFL https://t.co/GpGfnxisWf

— Stephen L. Miller (@redsteeze) November 25, 2020

This is just laughably stupid. https://t.co/yQujVz6bgW

— Chad Felix Greene (@chadfelixg) November 25, 2020

This is embarrassing. https://t.co/CA7DkrkB1M

— Philip Klein (@philipaklein) November 25, 2020

This seems extraordinarily dumb to me. https://t.co/ZfUqPxgpXA

— Andrew Egger (@EggerDC) November 25, 2020

Humor. Who has it?

— An Unforgiving Meat (@monkeyboy100001) November 25, 2020

Not the NLRB.

— President-Elect Retread ??⚓️ (@Retread03) November 25, 2020

Clearly not.

Wait until it comes out that Domenech doesn’t even own a salt mine. https://t.co/QxEdMlxb8L

— Neil Stevens (@presjpolk) November 25, 2020

I hope @bdomenech takes this the distance and gifts a free speech win for “common sense and sense of humor” https://t.co/gNYfzXX45B

— JJJ (@Johnny_Joey) November 25, 2020

For what it’s worth, Domenech appears to be taking this latest development in stride: