Soviet-style apparatchiks at the NLRB blocked from killing ‘The Federalist’

In Old Hollywood, they understood something important about communists: Like all tyrants, they have no sense of humor. Ben Domenech, who publishes The Federalist, found this out the hard way when he made a joke about unions at The Federalist, only to have his company swept into a three-year-long Kafka-esque nightmare. Now, though, the Third Circuit has finally put a stop to the administrative madness.

In 1939’s Ninotchka, Greta Garbo played the eponymous humorless Soviet operative sent to Paris to recover a handful of rogue Russians. It’s only thanks to Melvyn Douglas’s relentless charm, along with Paris’s own charms, that Ninotchka learns to laugh, leading to the movie’s famous tagline: “Garbo laughs.” Here is the Soviet commissar in all her stone-faced glory:

Fast forward eighty years to 2019. Vox Media, a hard-left internet news company was hit by a strike when a year of negotiations failed to result in a union contract. Domenech found amusing the fact that Vox’s leftwing management was failing to treat its workers as well as the workers wanted. Therefore, he put out a joke tweet. (If you’re a leftist, the joke is the reference to a salt mine. There are no actual salt mines at The Federalist.)

Domenech explained what happened next. When he sent out the tweet, no one at The Federalist had tried to or even wanted to form a union, and many treated it as the punch line for in-house jokes. However, one left-wing activist plus the NLRB literally turned Domenech’s joke into a federal case:

Then things took an unfunny turn. The National Labor Relations Board informed me that the leftist writer Matt Bruenig had filed a formal complaint about my tweet. He withdrew it, but Joel Fleming, a Massachusetts lawyer, filed another.

Mr. Fleming alleged I had violated Section 8(a)(1) of the Wagner Act, which states that “it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7”—namely 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.”

The accusation was laughable. No employee had expressed a desire to unionize. If anyone had, my joke wouldn’t have stood in the way. Mr. Fleming was an interloper anyway—he had no association with the Federalist. But according to the NLRB, anyone can file such a complaint against any company.

The NLRB went after The Federalist with vigor, totally ignoring the First Amendment, subpoenaing staff members, and attempting to get access to several years’ worth of emails and communications between staff members. The NLRB said they’d settle the matter if Domenech deleted his joke and flooded his employees with information about unionizing. Domenech refused.

The case then went before an Administrative Law judge (i.e., an employee of the NLRB, a government agency playing the role of prosecutor, judge, jury, and executioner). The NLRB called no witnesses but did assert, based on the tweet and published articles that The Federalist isn’t a media article but is, instead, an “anti-union website.” It also said all of the thousands of editorial opinions by myriad were really just Domenech’s voice. The “judge” dismissed all affidavits from Federalist employees as subjective and, therefore, irrelevant. The NLRB won.

Finally, though, this past Friday, the Third Circuit issued a ruling in The Federalist’s favor. While acknowledging the broad power Congress conferred on the NLRB, the Court noted that the “Act as written and interpreted empowers a politically-motivated busybody as much as a concerned employee or civic-minded whistleblower.”

The Court held that the NLRB had an obligation to consider the context of Domenech’s tweet—and here’s where that salt mine comes in. It was obviously a joke and employees tweeted it as such. Those “subjective” employee impressions ought to have been seriously considered.

Ultimately, said the Third Circuit, “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.” That is a great outcome!

The federal government is too big and too leftist. It is no longer the government of a free people. It is a Ninotchka government: Humorless, obsessive, and dangerous. That needs to change if America is to keep her liberty.

(Hat tip: Hot Air)

Image: Ben Domenech. YouTube screen grab.

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