FDRLST Media, LLC v. Nat'l Labor Relations Bd.
| Decision Date | 20 May 2022 |
| Docket Number | 20-3434, No. 20-3492 |
| Citation | 35 F.4th 108 |
| Parties | FDRLST MEDIA, LLC, Petitioner v. NATIONAL LABOR RELATIONS BOARD National Labor Relations Board, Petitioner v. FDRLST Media, LLC |
| Court | U.S. Court of Appeals — Third Circuit |
Jared McClain [Argued], Institute for Justice, 901 North Glebe Road, Suite 900, Arlington, VA 22203, Mark Chenoweth, Kara M. Rollins, New Civil Liberties Alliance, 1225 19th Street, NW, Suite 450, Washington, DC 20036, Counsel for FDRLST Media, LLC
Kimberly S. Hermann, Southeastern Legal Foundation, 560 West Crossville Road, Suite 104, Roswell, GA 30004, Counsel for Amici Emily Jashinsky, Madeline Osburn, and Southeastern Legal Foundation, in support of FDRLST Media, LLC
Thomas A. Berry, Trevor C. Burrus, Ilya Shapiro, CATO Institute, 1000 Massachusetts Avenue, NW, Washington, DC 20001, Counsel for Amici CATO Institute, Reason Foundation, Individual Rights Foundation, DKT Liberty Project, Nadine Strossen, P.J. O'Rourke, Clay Calvert, Robert Corn-Revere, Michael James Barton, and Penn & Teller, in support of FDRLST Media, LLC
Corbin K. Barthold, James Dunstan, Berin Szóka, TechFreedom, 110 Maryland Avenue, NE, Suite 205, Washington, DC 20002, Counsel for Amicus TechFreedom, in support of FDRLST Media, LLC
Alan Gura, Owen Yeates, Institute for Free Speech, 1150 Connecticut Avenue, NW, Suite 801, Washington, DC 20036, Counsel for Amicus Institute for Free Speech, in support of FDRLST Media, LLC
Jonathan S. Goldstein, Shawn M. Rodgers, Goldstein Law Partners, LLC, 11 Church Road, Hatfield, PA 19440, Counsel for Amicus National Federation of Independent Business Small Business Legal Center, in support of FDRLST Media, LLC
Ethan W. Blevins, J. David Breemer, Daniel M. Ortner, Pacific Legal Foundation, 555 Capitol Mall, Suite 1290, Sacramento, CA 95814, Counsel for Amicus Pacific Legal Foundation, in support of FDRLST Media, LLC
Peter Sung Ohr, Ruth E. Burdick, Iva Y. Choe, David Habenstreit, Micah P.S. Jost [Argued], Gregory P. Lauro, Kira D. Vol, National Labor Relations Board, 1015 Half Street, SE, Washington, DC 20003, Counsel for National Labor Relations Board
Before: HARDIMAN, MATEY, and SCIRICA, Circuit Judges.
FDRLST Media, LLC (Employer) petitions for review of an order of the National Labor Relations Board finding that a supervisor's message posted on Twitter was an unfair labor practice. The Board cross-petitions for enforcement. Because the Board's finding is not supported by substantial evidence, we will grant the petition for review, set aside the Board's order, and deny its petition for enforcement.
The Employer operates The Federalist , a right-leaning internet magazine that publishes commentary on cultural, political, and religious issues of current interest, including labor issues. In June 2019, the Employer found itself at the center of its own labor controversy. On June 6, media outlets reported that unionized employees of Vox Media, a left-leaning digital media company, walked off the job during union contract negotiations. That same day, Ben Domenech, executive officer of FDRLST Media and publisher of The Federalist , posted a tweet from his personal Twitter account that read: "FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine." AR 68. Domenech's tweet appeared in the feeds of more than eighty thousand Twitter users who follow his account. The "@fdrlst" tag refers to The Federalist 's official Twitter account. At the time, the Employer had just seven employees, six of whom were writers and editors at The Federalist. At least one employee viewed the tweet, but the record does not show that any employee expressed concern over its message.
The following day, Joel Fleming, a Massachusetts resident with no connection to FDRLST Media, filed an unfair labor practice charge with the Board's New York Region. The charge alleged that Domenech's tweet violated Section 8(a)(1) of the National Labor Relations Act of 1935 (NLRA or Act) and listed an Illinois address for the Employer, even though it is a Delaware limited liability corporation with a Washington, D.C. office.
Based on the charge, the Director of the NLRB's New York Region issued an unfair labor practice complaint against the Employer. The complaint alleged that Domenech's tweet "threatened employees with reprisals and implicitly threatened employees with loss of their jobs if they formed or supported a union." AR 44. The Employer moved to dismiss the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and improper venue. While observing that its "case could conceivably be transferred to" the Board's Baltimore Region, the Employer "t[ook] no position ... on the propriety of the complaint being transferred." AR 183. The Board denied the motion.
At a February 2020 hearing before a regional administrative law judge (ALJ) in New York City, the Employer entered what it described as a "special appearance" so it could object to personal jurisdiction. AR 6. The ALJ declined to revisit the Board's jurisdictional ruling and heard arguments on the complaint's merits. The Board's regional counsel presented his case without calling any witnesses and rejected the notion that Domenech's tweet would be understood as a joke. Instead, he pointed to The Federalist 's editorial content as expressing Domenech's own "anti-union" stance, AR 14, and argued that a reasonable reader could interpret the tweet only as a threat against employee unionization.
The Employer denied the allegation. Citing concerns that calling witnesses would waive its jurisdictional objection, the Employer submitted affidavits from Domenech and two of the six employees he supervised. Domenech's affidavit explained that he intended the tweet as satire, expressing his "personal viewpoint on a contemporary topic of general interest." AR 151. The two employees averred that they viewed the tweet as a funny, satirical expression and did not perceive it to threaten any protected workplace activity. The ALJ admitted the affidavits into evidence over the regional counsel's objections.
The ALJ concluded that the tweet violated Section 8(a)(1) of the NLRA. See FDRLST Media, LLC & Joel Fleming , 370 N.L.R.B. No. 49, at 5–6 (Nov. 24, 2020). Observing that "salt mine" was an idiom "most often used to refer to tedious and laborious work," the ALJ determined that "a reasonable interpretation of the expression meant that working conditions would worsen or employee benefits would be jeopardized if employees attempted to unionize." Id. at 5. Concluding that the opening "FYI @fdrlst" "clearly directed [the tweet] to the employees of FDRLST Media and not to the general public," the ALJ found that the tweet was "an obvious threat," which, in "the totality of the circumstances ... had no other purpose except to threaten the FDRLST Media employees with unspecified reprisal." Id.
The ALJ gave little weight to the employee affidavits and rejected Domenech's claim that his tweet was satire, since Act. Id. The ALJ also found the tweet's timing—which came on the heels of the Vox Media walkout—to be "significant," because it expressed Domenech's displeasure with the actions of unionized Vox employees. Id.
The Board affirmed the ALJ's decision and order with several modifications. Id. at 1. In adopting the ALJ's conclusion that the tweet was a prohibited threat, the Board disclaimed any reliance on The Federalist 's "anti-union" editorials or the tweet's temporal proximity to the Vox Media walkout, since there was no record evidence that FDRLST Media employees were aware of either. The Board also concluded that the ALJ erred in admitting the affidavits without establishing that Domenech and the two employees were unavailable to testify. But the Board found that error harmless, stating that employer intent and subjective employee perception were "irrelevant" to its inquiry. Id. at 1 n.3. In addition to entering the cease-and-desist order recommended by the ALJ, the Board ordered the Company to direct Domenech to delete his tweet.
The Employer petitioned for review of the Board's decision and order; the Board cross-petitioned for enforcement.1
The Employer first argues that the Board lacks authority to issue a complaint based on a charge filed by a person who was not "aggrieved" by the alleged unfair labor practice. We disagree. Controlling precedent and the plain language of the Act affirm that the Board acted within its statutory authority when it issued a complaint based on Fleming's charge.
The NLRA empowers the Board "to prevent any person from engaging in any unfair labor practice." 29 U.S.C. § 160(a). To that end, the Act grants the Board broad authority to issue unfair labor practice complaints, conduct hearings, subpoena witnesses, make findings, and order remedial actions. Id. §§ 160(b) – (c), 161.
The first sentence of Section 10(b) of the Act explains the circumstances under which the Board can issue an unfair labor practice complaint. As originally enacted in 1935, that sentence reads:
Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint.
NLRA, ch. 372, § 10(b), 49 Stat. 449, 453 (1935) (). In 1947, Congress amended the statute to its present form, adding this proviso to the end of Section 10(b)'s first sentence:
Provided , That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to...
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