The Winner of The Federalist's NLRB Saga? Public Rights.

Bad writer gets bad advice from bad lawyers. Hilarity ensues.

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Late Monday night, the National Labor Relations Board released a one-page decision holding that publisher Ben Domenech of The Federalist, a far-right web magazine, unlawfully interfered with his employees’ rights under the National Labor Relations Act by tweeting, in response to reported strike activity by employees of another online publication, “first one of you tries to unionize I swear I’ll send you back to the salt mine”. Two Trump appointees contributed to the unanimous ruling.

This was a mind-numbingly easy case that never deserved the sort of attention it received. Domenech’s statement was a clear violation of Section 8(a)(1) of the NLRA, which provides that it is an unfair labor practice for employers to “interfere with, restrain, or coerce” employees from exercising their Section 7 rights to unionize or engage in other concerted activity. Any defense predicated on Domenech’s ostensible satirical or joking intent behind the tweet was simply a waste of time. The employer’s motive in these cases is immaterial; it’s what a reasonable employee would think after viewing the statement. Most employees would view Domenech’s statement—made in direct reference to a walkout by workers at a competing publication—as a promise to carry out some sort of retaliation if they were to ever attempt to unionize.

Dave Portnoy of Barstool Sports wrote a contextually identical tweet last year that also invited a Labor Board complaint. Portnoy hired an experience management-side labor law firm to quickly settle the case, which merely required him to delete the offending tweet. The whole process couldn’t have taken more than a few hours on either side.

Instead of hiring lawyers who had experience in NLRB work, Domenech enlisted the help of conservative legal activists who spend their donors’ money launching lawsuits against administrative agencies. This organization, the New Civil Liberties Alliance, had little interest in actually defending the tweet on doctrinal grounds, instead spending the vast majority of its briefs denying the Labor Board’s jurisdiction over the unfair labor practice charge that was filed by Massachusetts attorney Joel Fleming, a non-employee of The Federalist. Despite the existence of a 77-year-old Supreme Court case which is directly on-point regarding this issue, NCLA lawyers insisted that Fleming’s charge violated Domenech’s apparently unlimited constitutional right to concoct anti-union tweets.

The Federalist’s litigation strategy failed to convince any labor lawyers in the agency of their position (including Trump-appointed General Counsel Peter Robb), but it did attract the attention of conservative non-practitioners like National Review’s Dan McLaughlin (the “Baseball Crank” of Twitter infamy). Aping the NCLA, McLaughlin made a mostly irrelevant argument that invoked misplaced rationales from other areas of law. Like a 1L attempting to issue-spot his first law school exam, McLaughlin rattled off a litany of ostensible evidentiary, jurisdictional, and administrative concerns that have been settled by reviewing courts for decades.

It would be more confusing than helpful to bog down this post with a full dissection of McLaughlin’s claims. But his core contentions were settled 80 years ago when the Supreme Court declared the NLRB as a protector of public rather than private rights. The distinction is important for a federal agency. Unlike a court that is restricted by common-law standing requirements, the Labor Board may seek to remedy any labor law violation brought to its attention by anyone who wishes to file a charge. This makes perfect sense when considering the NLRA’s structural recognition of potential employer coerciveness over employees, who often may be too afraid to bring a charge themselves. Fleming’s charge was fair game the second Domenech made his unlawful statement in the public sphere.

As it is, Domenech has a colorable malpractice claim against the NCLA. However, I suspect that his sole attention with this appeal was to grab some headlines from the conservative press and thumb his nose at the NLRB’s processes en route to drawing a Trump-majority panel in a federal court of appeals. But if his time with Trump’s Labor Board is any indication, Republican appointees are not going to ignore clearly settled law just to do a solid for The Federalist.