FDRLST Media, LLC

National Labor Relations Board - Administrative Judge Opinions

Apr 22, 2020

02-CA-243109 (N.L.R.B. Apr. 22, 2020)

JD(NY)-04-20
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
FDRLST MEDIA, LLC,
and Case 02‒CA‒243109
JOEL FLEMING, An Individual
Jamie Rucker, Esq.,
for the General Counsel.
Aditya Dynar, Esq., Kara Rollins, Esq.,
and Jared McClain, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case was tried in New York, New
York on February 10, 2020. Joel Fleming, an individual filed the charge on June 7, 2019.
Region 2 of the National Labor Relations Board (NLRB) issued the complaint on September 11,
2019.1 The complaint alleges that FDRLST Media, LLC (Respondent) violated Section 8(a)(1)
of the National Labor Relations Act (Act) when its Executive Officer, Ben Domenech, who
serves as the publisher of the Respondent’s website, The Federalist, issued a public “Tweet” on
June 6, 2019 that had threatened employees with the comment, “FYI@fdrlst first one of you tries
to unionize I swear I’ll send you back to the salt mine” (GC Exh. 1(c)).2 The Respondent
provided a timely answer denying the material allegations in the complaint (GC Exh. 1(e)).
On the entire record and after consideration of the posthearing briefs filed by the General
Counsel and the Respondent, I make the following3
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the publication of websites, electronic newsletters and
satellite radio shows. The Respondent admits it is a Delaware corporation, with an office at 611
1 All dates are 2019 unless otherwise indicated.
2 The exhibits for the General Counsel are identified as “GC Exh.” and Respondent’s exhibits
are identified as “R. Exh.” The closing briefs are identified as “GC Br.” and “R. Br.” for the
General Counsel and the Respondent, respectively. The hearing transcript is referenced as “Tr.”
3 No witnesses were called at the hearing.
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Pennsylvania Avenue, S.E. Washington, D.C. The Respondent further admits, in conducting the
operations as described, Respondent receives revenues sufficient to meet the Board’s
discretionary jurisdictional standard for newspapers and spends more than $5000 on goods and
services that are received or provided directly from points outside of Washington, D.C. The
Respondent admits and I find that it is an employer engaged in commerce within the meaning of 5
Section 2(2), (6), and (7) of the Act.4
II. ALLEGED UNFAIR LABOR PRACTICES
The parties stipulated to the following verbatim findings of fact (GC Exh. 2):10
Since at least January 1, 2016, The Federalist has been a division of Respondent. Since at
least January 1, 2016, Respondent has operated The Federalist as a web site at the domain
name “thefederalist.com.” Since at least January 1, 2016, Ben Domenech (“Domenech”)
has held the position of Executive Officer of Respondent. Since at least January 1, 2016, 15
Domenech has held the position of Publisher of The Federalist. Since at least January 1,
2016, Domenech has been a supervisor of Respondent within the meaning of Section
2(11) of the National Labor Relations Act (“Act”). Since at least January 1, 2016,
Domenech has been an agent of Respondent within the meaning of Section 2(13) of the
Act. 13. Since before June 2019, Respondent has employed employees at The Federalist. 20
The Federalist is a ‘web magazine focused on culture, politics, and religion that publishes
commentary on a wide variety of contemporary newsworthy and controversial topics.’
(GC Exh. 2, paras. 5, 6, 9‒13, 31).
Twitter is a microblogging and social networking service on which users post and interact 25
with messages known as “tweets.” Tweets are limited to 280 characters and may contain
photos, videos, links and text. Registered users can post, like, and retweet tweets, but
unregistered users can only read them. User’s access Twitter through its website
interface, through Short Message Service (SMS), or Twitter’s mobile-device application
software (“app”). Users can “follow” another user, which means that the follower 30
subscribes to the user’s tweets. If a user tweets, the message will appear on each
follower’s timeline. Tweets are posted to a user’s profile, sent to the user’s followers,
and are searchable on Twitter. On Twitter, replies to tweets that are part of the same
“thread” or conversation are indicated by replying to a Twitter account’s username with
“@,” e.g., “@bdomenech.” Tweets may be viewed, retweeted, republished, or reported 35
on or in Twitter, Facebook, radio, television, newspapers, news media, and various other
print and social media platforms. The Federalist website maintains a Twitter account
under the user or account name “@FDRLST” (GC Exh. 2, paras. 15‒24).
Since at least June 5, 2019, Ben Domenech has had a Twitter account with the listed 40
account name @bdomenech. On about June 6, 2019, Ben Domenech, through the
Twitter account @bdomenech, posted the following Tweet: “FYI @fdrlst first one of you
tries to unionize I swear I’ll send you back to the salt mine” (GC Exh. 2, paras. 25, 26).
4 The Respondent admits to corporate status, corporate location, operations, and revenue in a
stipulation entered with the counsel for the General Counsel (GC Exh. 2).
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At least one employee of Respondent viewed the Tweet described in the preceding
paragraph. Since at least January 1, 2019, Ben Domenech has communicated with (and
continues to communicate with) Respondent employees about Respondent’s business
matters using his own personal e-mail accounts) as well as an email account owned by
Respondent. Ben Domenech uses his Twitter account @bdomenech to promote and 5
discuss Respondent’s published content (GC Exh. 2, paras. 27‒29).
It is not disputed that Joel Fleming, the individual who filed the charge in this complaint,
is not and never has been an employee of the Respondent.
10
The counsel for the General Counsel contends that on June 6, online media and news
sites, including the Washington Post, CNN, Bloomberg News, Yahoo, and among others, carried
a story of a walkout by union employees at Vox Media. Vox Media is an online digital media
network that carries the stories, podcasts, and events produced by other companies, including the
Federalist. The counsel for the General Counsel maintains that the walkout by unionized 15
employees resulted in online magazines, like the Federalist, to “go dark” (GC Exhs. 3.8 and 3.9;
GC Br. at 4). On the same day as the walkout, Ben Domenech (Domenech) tweeted, “FYI
@fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” The
counsel for the General Counsel argued that the tweet was a threat made by Domenech even
though the tweet was made on Domenech’s own personal Twitter account (@bdomenech). The 20
tweet from his personal account had a @fdrlst salutation and it is not disputed that some
employees of the Respondent read this tweet.
The counsel for the General Counsel maintains that the tweet was consistent with The
Federalist’s anti-union editorial position, as demonstrated by its digital articles titled “Public-25
Sector Unions Deserved to be Destroyed;” Baltimore’s Real Police Problems: Unions;” and
“Why Pay Full Pensions to Unions That Bankrupted Taxpayers [sic] Pockets and Kids’ Minds?”
(GC Exhs. 3, 3.1‒3.7; GC Br. at 4). The counsel for the General Counsel argues that the tweet is
not protected under the First Amendment (or Sec. 8(c) of the Act) because the comment is a
threat of unspecified reprisal (GC Br. at 5).30
The counsel for the Respondent maintains that the General Counsel failed to establish
that Domenech speaks for or on behalf of the Respondent on all occasions when he posts tweets
on his personal account. The Respondent denies that Domenech spoke on its behalf in the tweet
(R. Br. at 4, 5). The Respondent further maintains that a reasonable FDRLST employee would 35
not take Domenech’s tweet as a threat of reprisal with loss of employment or other benefits.
Indeed, counsel for the Respondent provided two affidavits prepared by employees of the
Respondent denying that the tweet was a threat and perceived the tweet to be a humorous
expression by Domenech (R. Exhs. 4, 5; R. Br. 5‒7).5 Finally, counsel for the Respondent denies
5 The counsel for the General Counsel strenuously objected as hearsay the acceptance of the
three affidavits proffered by the Respondent (Tr. 21‒24; GC Br. at 9, 10). As with other rules of
evidence, the Board applies the hearsay rules “so far as practicable.” Sec. 10(b) of the Act, 29
U.S.C. § 160(b), states: “Any [unfair labor practice] proceeding shall, so far as practicable, be
conducted in accordance with the rules of evidence applicable in the district courts of the United
States.” See also NLRB Rules and Regulations, Sec. 102.39, and Statements of Procedure, Sec.
101.10(a). Like other administrative agencies, the Board does “not invoke a technical rule of
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that the Respondent is anti-union. It is maintained that the articles cited by the General Counsel
were republished from other sources on the Respondent’s website and that the Respondent was
merely acting as a forum for different viewpoints of the authors of these articles and not the
viewpoint of FDRLST (R. Br. 7‒9; R. Exhs. 1, 2).6
5
III. DISCUSSION AND ANALYSIS
Section 7 of the Act provides that, “employees shall have the right to self-organization, to
form, join, or assist labor organizations...” Section 8(a)(1) provides that it is an unfair labor
practice to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in 10
Section 7. Section 8(a)(1) of the Act makes it unlawful for an employer to “interfere with,
restrain, or coerce employees in the exercise of [those] rights.” See, Brighton Retail Inc., 354
NLRB 441, 447 (2009). The test for evaluating if the employer violated Section 8(a)(1) is
“whether the statements or conduct have a reasonable tendency to interfere with, restrain or
coerce union or protected activities.” Hills & Dales General Hospital, 360 NLRB 611, 61515
(2014). Additionally, the test of interference, restraint, and coercion under Section 8(a)(1) does
not turn on the employer’s motive or on whether the coercion succeeded or failed. American
Tissue Corp., 336 NLRB 435, 441 (2001); Hanes Hosiery, Inc., 219 NLRB 338, 338(1975) (“we
have long recognized that the test of interference, restraint and coercion . . . does not turn on
Respondent’s motive, courtesy, or gentleness . . . the test is whether Respondent has engaged in 20
conduct which reasonably tends to interfere with the free exercise of employee rights under the
Act.”); also, Amnesty International of the USA, Inc., 368 NLRB No. 112 (2019).
As noted, in determining whether an employer’s actions violate Section 8(a)(1), the
employer’s motivation is immaterial; what matters is whether the employer’s conduct, viewed 25
from the perspective of a reasonable person, tends to interfere with the free exercise of employee
rights. E.g., Crown Stationers, 272 NLRB 164, 164 (1984). As with all alleged 8(a)(1)
violations, the judge’s task is to “determine how a reasonable employee would interpret the
action or statement of her employer…and such a determination appropriately takes account of
the surrounding circumstances.” The Roomstore, 357 NLRB 1690, 1690 fn. 3 (2011) (totality of 30
the circumstances).
Here, the alleged threat tweeted by Domenech was, “FYI @fdrlst first one of you tries to
unionize I swear I’ll send you back to the salt mine.” This expression is an idiom. An idiom is
exclusion but admit[s] hearsay evidence and give[s] it such weight as its inherent quality
justifies.” Midland Hilton & Towers, 324 NLRB 1141, 1141 fn. 1 (1997). As such, I allowed the
three affidavits in the record giving limited probative value to the affidavits.
6 The Respondent had raised other arguments in its motion to dismiss the complaint filed
with the Board on January 13, 2020. The Respondent’s motion to the Board maintained that the
NLRB lacks subject matter jurisdiction because Fleming was not aggrieved; lacks personal
jurisdiction because the Respondent was not amenable to service under New York State laws;
and that Region 2 is an improper venue for the issuance of the complaint because the
Respondent’s principle place of business is located in Washington, D. C. The entire motion was
dismissed in an order issued by the Board on February 7, 2020 (of record). The Respondent
again asserted the lack of jurisdiction of the NLRB in its posthearing brief (R. Br. at 11, 12). For
the same reasons as in the Board’s Order, this argument has little merit.
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an expression, word, or phrase that has a figurative meaning conventionally understood by native
speakers. This meaning is different from the literal meaning of the idiom’s individual elements.
In other words, idioms don’t mean exactly what the words say. Obviously, the FDRLST
employees are not literally being sent back to the salt mines. Idioms have, however, hidden
meanings. The meaning of these expressions is different from the literal meaning or definition of 5
the words of which they are made. The literal definition of salt mine explains the origin of the
figurative meaning. Work in a salt mine is physically challenging and monotonous, and any job
that feels that tedious can be called a salt mine. The term is sometimes used in a lighthearted or
joking way: “It was a great weekend, but tomorrow it’s back to the salt mine.” See, Farlex
Dictionary of Idioms. © 2015 Farlex, Inc, all rights reserved. Nevertheless, the expression “salt 10
mine” is most often used to refer to tedious and laborious work.
Domenech provided an affidavit in this proceeding. Domenech stated that he is the
publisher of the Respondent. He further stated that the tweet was from his personal account and
was set for public viewing. He maintained that the tweet was a satire and an expression of his 15
personal viewpoint on a contemporary topic of general interest (R. Exh. 3). It is significant to
note that although the tweet was from Domenech’s personal account, the tweet itself was
prefaced with the Respondent’s name and it was “FYI” or ‘For Your Information’, which, in my
opinion, was clearly directed to the employees of FDRLST and not to the general public. This is
a reasonable conclusion to draw since the statement “if you unionize, you will be sent to the salt 20
mines” was meant for the FDRLST employees and not the public. 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.25
The Respondent proffered two additional affidavits from FDRLST employees, both
stating that the tweet was funny and sarcastic and neither one felt that the expression was a threat
of reprisal (R. Exh. 3).7 However, a threat is assessed in the context in which it is made and
whether it tends to coerce a reasonable employee. Westwood Health Care Center, 330 NLRB 30
935, 940 fn. 17 (2000). The standard for assessing alleged 8(a)(1) threats is objective, not
subjective. Multi-Add Services, 331 NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 (7th Cir.
2001). Any subjective interpretation from an employee is not of any value to this analysis.
Miami Systems Corp., 320 NLRB 71, 71 fn. 4 (1995), affd. in relevant part 111 F.3d 1284 (6th
Cir. 1997); Roemer Industries, 367 NLRB No. 133 (2019). Moreover, threats allegedly made in 35
a joking manner also violate the Act. Southwire Co., 282 NLRB 916, 918 (1987), citing
Champion Road Machinery, 264 NLRB 927, 932 (1982) (Applying an objective standard, the
Board found a supervisor’s statement violated Sec. 8(a)(1) of the Act, although the threatened
employee testified he felt certain the comment was a joke).8
7 Emily Jashinsky, cultural editor at the Federalist (a division of FDRLST) stated in her
affidavit that she read the tweet on June 6 and found it “funny and sarcastic” and did not believe
the tweet was made as a threat. Madeline Osburn, also a FDRLST employee, stated that the
tweet was satirical and a funny way of expressing (Domenech’s) personal views.
8 I would give little weight to the two employee affidavits as corroborating documents to
support Domenech’s assertion that his tweet was satirical. It is unknown why these two
employees were chosen to provide the affidavits, it is not clear whether there were absent any
JD(NY)-04-20
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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. The timing of the tweet contemporaneous to the
internet blackout at Vox Media is significant. Domenech clearly expressed his displeasure with 5
the Vox walkout and made that known to his employees through his tweet. As such, the tweet is
reasonably considered as a threat because it tends to interfere with the free exercise of employee
rights. It is irrelevant that the threat by Domenech, as the publisher of FDRLST, was his
personal opinion or that it was made from his personal Twitter account. His tweet was directed
to the FDRLST employees and originated from the Respondent’s publisher and executive 10
officer. A statement by a supervisor or agent of an employer threatening a plant closure violates
the Act, even if the speaker attempts to couch the statement as his personal opinion. Twistex,
Inc., 283 NLRB 660, 663 (1987). A threat stated as a matter of personal opinion is still coercive.
Mid-South Drywall Co., Inc., 339 NLRB 480, 481 (2003), citing Clinton Electronics Corp., 332
NLRB 479 (2000) (finding a threat of job loss threat couched as personal opinion violated Sec.15
8(a)(1)). Statements are viewed objectively and in context from the standpoint of employees
over whom the employer has a measure of economic power. See, e.g., Mesker Door, Inc., 357
NLRB 591, 595 (2011). When an employer tells employees that they will jeopardize their jobs,
wages, or other working conditions by supporting a union or engaging in concerted activities,
such communication tends to restrain and coerce employees if they continue to support a union 20
or engage in other concerted activities in violation of Section 8(a)(1). Noah’s Bay Area Bagels,
LLC,331 NLRB 188 (2000); Bloomfield Health Care Center, 352 NLRB 252 (2008); Green
Apple Supermarket of Jamaica, Inc., 366 NLRB No. 124 (2018).9
I find that the threat alleged by the General Counsel in the complaint would reasonably 25
tend to interfere with the free exercise of employee rights under Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent FDRLST Media, LLC is an employer engaged in commerce within 30
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act on June 6, 2019 when Ben
Domenech, the publisher and executive officer of FDRLST Media, LLC, threatened FDRLST
employees by stating: “the first one of you tries to unionize I swear I’ll send you back to the salt 35
mine.”
implied threats if they did not provide such statements, and no assurances were given by the
Respondent that there would be no reprisals for refusing to provide a statement or regardless of
what they may state in the affidavits. Johnnie’s Poultry Co., 146 NLRB 770, 774‒775 (1964).
9 The Respondent also argued that NLRB was infringing on the First Amendment right of
free expression by Domenech or the Respondent. However, these rights do not extend to threats
made by employers to workers. Statements made by an employer to employees may convey
general and specific views about unions or unionism or other protected activity as long as the
communication does not contain a “threat of reprisal or force or promise of benefit.” NLRB v.
Gissel Packing Co., 395 U.S. 575, 618 (1969).
JD(NY)-04-20
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3. The unfair labor practices committed by the Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
5
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist there from and to take certain affirmative action designed to
effectuate the policies of the Act. On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
10
ORDER
The Respondent, FDRLST, Media, LLC, its officers, agents, successors, and assigns,
shall
1. Cease and desist from15
(a) Threatening employees with unspecified reprisal because they engaged in protected
activity.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
20
2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) Within 14 days after service by the Region, post at its facility in Washington, D.C.
copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by
the Regional Director for Region 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in 25
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by 30
any other material. If, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since June 6, 2019.
(b) Within 21 days after service by the Region, file with the Regional Director a sworn35
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purpose.
11 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
JD(NY)-04-20
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Dated, Washington, D.C. April 22, 2020
Kenneth W. Chu5
Administrative Law Judge
JD(NY)-04-20
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefits and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten you with unspecified reprisal or otherwise discriminate against you
because you engage in protected activities or to discourage you from engaging in these or other
protected activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
WE WILL REAFFIRM that you have the right to exercise your Section 7 rights guaranteed by the
Act.
FDRLST MEDIA, LLC
(Employer)
Dated______________________By______________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
Region 2
26 Federal Plaza, 36th Floor
New York, New York 10276
(212) 264-0300, Hours: 8:45 a.m. to 5:15 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-243109 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
JD(NY)-04-20
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (212) 264-0300.