Somebody needs to send administrative law judge Kenneth Chu back to the salt mines.
On April 27, Chu issued one of the silliest rulings imaginable in finding Ben Domenech, publisher of the Federalist online journal, guilty of violating the National Labor Relations Act for a satirical Tweet he posted on June 6, 2019. Responding to news that union employees of the more liberal online publication Vox had conducted a walkout, Domenech tweeted the following:
“FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”
The Federalist has only six full-time employees. None of them have ever tried to unionize, nor would it make sense for them to do so. As the Federalist is a conservative publication, and conservatives are usually seen as less open to special privileges for unions, it is not likely any of those employees would even desire to unionize.
None of his employees complained. Instead, the complaint was filed by a progressive activist with no prior affiliation or dealings with the Federalist.
Nonetheless, Judge Chu determined that Domenech’s tweet amounted to a threat of retaliation for potential labor organizing, in contradiction of Section 8(a)(1) of the NLRA, which makes it unlawful to “restrain, or coerce employees,” with regard to unionizing rights.
Chu’s ruling is nonsense. Even Chu acknowledged that the expression “send you back to the salt mine” is an idiom, a figure of speech, that is “sometimes used in a lighthearted or joking way” to suggest that it’s time to get serious. Anyone who spends even five minutes on Twitter can see that a rather large portion of that forum is taken up with such lighthearted banter, puns, and snark. Domenech’s Twitter feed is no exception.
To suggest that his spur-of-the-moment reaction, a bit of satirical commentary on public policy, open for all the world to see as a reaction to the story about Vox, was an actual threat to his own employees is to abandon all common sense and sense of proportion. If anything, it was the complaint against Domenech that was abusive, an attempt to weaponize the legal machinery of government merely to harass the purveyor of opposing political viewpoints.
Indeed, the move to silence Domenech is itself an attempt at intimidation and a threat to First Amendment guarantees of free speech. Granted, the NLRA allows infringements on speech freedoms that otherwise would be prohibited, but even then only in the context of protecting another First Amendment right, that of association. A random comment appearing as banter on a public forum doesn’t come close to qualifying as an affront to that freedom of association.
Luckily, the “penalties” imposed by Judge Chu, namely an order for Domenech to post notices of labor organizing rights in multiple places where his few employees can see them, are rather negligible. Still, Domenech is rightly appealing, because it is the precedent, not the punishment, that is dangerous.
The regulatory state has gone way too far when it treats humorous political speech as a legal infraction. Judge Chu’s decision should be overturned because his ruling isn’t worth its salt.
