The U.S. Court of Appeals for the Third Circuit has found that Ben Domenech, executive officer and publisher of the right-leaning media company The Federalist, did not threaten employees when he tweeted that he would send them “back to the salt mine” if they unionized, in FDRLST Media LLC v. NLRB, Case No. 20-3434.

Domenech’s tweet came the same day that unionized employees of Vox Media (a left-leaning competitor of The Federalist) walked off the job during contract negotiations. In response to the report, Domenech tweeted “FYI @[the Federalist] first one of you tries to unionize I swear I’ll send you back to the salt mine.” Domenech’s tweet went out to the feeds of more than 80,000 Federalist followers. 

Shortly thereafter, Joel Fleming, a Massachusetts lawyer with no connection to The Federalist, filed an unfair labor practice charge with the National Labor Relations Board (NLRB) claiming that Domenech’s tweet constituted a threat of unlawful retaliation for unionizing. An administrative law judge (ALJ) agreed, finding that “a reasonable interpretation of the expression meant that working conditions would worsen or employee benefits would be jeopardized if employees attempted to unionize.” Disregarding The Federalist’s affidavit evidence that employees understood the tweet as simply a joke, the ALJ held that the tweet was “an obvious threat,” which, in “the totality of the circumstances . . . had no other purpose except to threaten the [Federalist] Media employees with unspecified reprisal.” The NLRB adopted the decision, holding that the subjective impressions of The Federalist’s employees were irrelevant in determining the legality of the message. The Federalist appealed to the Third Circuit.

The appeals court, which apparently has a better sense of humor, rejected the NLRB’s decision. Contrary to the NLRB, the court held that while an employee’s subjective impressions are not dispositive, they are not irrelevant. Noting that Domenech posted the message on Twitter, a “public platform” that “encourages users to express opinions in exaggerated or sarcastic terms,” the court held that Federalist employees would “read the tweet as mocking a rival internet media company or commenting on a timely socio-political issue [and not] as threatening reprisal.”

TAKEAWAY: While the Third Circuit’s decision represents a refreshing dose of common sense, it should not be read as giving employers carte blanche to become stand-up comedians. Even where a challenged comment is intended in jest, it seems extraordinarily unlikely that the NLRB will suddenly develop a sense of humor. Accordingly, posts on social media should be carefully considered in order to avoid prolonged litigation.