FDRLST Media, LLC v. NLRB

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CASE STATUS:
Petition for Review filed in the U.S. Court of Appeals for the Third Circuit

CASE START DATE:
June 7, 2019

DECIDING COURT:
National Labor Relations Board

ORIGINAL COURT:
National Labor Relations Board’s Administrative Law Judge

 

CASE SUMMARY

This is a case of whether a random person on Twitter can claim ‘unfair labor practice’ because a Tweet did not sit well with them. Individuals who are not directly impacted by the consequences of a comment on social media should not be allowed to co-opt the muscle of the federal Administrative State to bring frivolous charges, but that is exactly what happened here.

A tweet in jest by Ben Domenech, a co-founder and publisher of NCLA client FDRLST, Media, LLC, which publishes an online magazine, The Federalist, resulted in the filing of a formal charge with the National Labor Relations Board (NLRB). The charging party, Joel F., a Tweeter who saw the post, retweeted it at the NLRB, and then he filed a complaint about the tweet with the NLRB, claiming that sending it constituted an “unfair” labor practice.

The tweet in question was posted on June 6th by Mr. Domenech who jokingly wrote from his personal account: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” The governing statute only allows an “aggrieved” person (such as an employee) to file a charge with the Board. However, the NLRB has interpreted “aggrieved” to mean any person. This broad interpretation allows anyone who deems himself aggrieved—including a completely uninvolved person like Joel F.—to weaponize the NLRB’s investigatory processes against others with whom they disagree. In Domenech’s case, the charging party is someone on Twitter, completely unrelated to The Federalist or its employees.

Armed with this misguided charge, NLRB is now subjecting FDRLST to an onerous enforcement action that the agency lacks the jurisdiction to pursue. Congress has authorized the National Labor Relations Board to investigate unfair labor practices only when an aggrieved person files a charge with the Board. The NLRB has interpreted “aggrieved” person to mean any person. This creates the opportunity for anyone who deems themselves aggrieved to weaponize the NLRB against political opponents.

NCLA is representing FDRLST Media to insist that the NLRB limit its enforcement jurisdiction to the complaints of employees aggrieved by an allegedly unfair labor practice.

CASE DOCUMENTS

March 29, 2021 | Brief of Amicus Curiae on Behalf of the National Federation of Independent Business Small Business Legal Center in Support of Petitioner
March 29, 2021 | Brief Amicus Curiae of Pacific Legal Foundation in Support of Petitioner/Cross-Respondent and Reversal
March 29, 2021 | Brief of Amicus Curiae Institute for Free Speech in Support of Petitioner
March 29, 2021 | Brief of Amici Curiae FDRLST Media, LLC Employees Emily Jashinsky and Madeline Osburn and Southeastern Legal Foundation in Support of Petitioner/Crossrespondent and Reversal
March 29, 2021 | Brief of TechFreedom as Amicus Curiae in Support of Petitioner and Reversal
March 29, 2021 | Brief of Amici Curiae the 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 & Tellerin Support of Petitioner/Cross-Respondent
March 22, 2021 | Petitioner/Cross-Respondent’s Opening Brief
December 9, 2020 | National Labor Relations Board’s Cross-Application for Enforcement of Its Order
December 1, 2020 | Petition for Review of the Decision and Order of the National Labor Relations Board
November 24, 2020 | Decision and Order by Chairman Ring and Members Kaplan and McFerran
August 17, 2020 | Brief to the National Labor Relations Board on Behalf of Amicus Curiae the Center on National Labor Policy, Inc.
July 24, 2020 | Motion and Amici Curiae Brief of FDRLST Employees Emily Jashinsky and Madeline Osburn in Support of FDRLST
July 20, 2020 | Respondent FDRLST Media, LLC’s Answering Brief to General Counsel’s Cross-Exceptions to the Decision of the Administrative Law Judge
July 20, 2020 | Respondent FDRLST Media, LLC’s Reply Brief in Support of Exceptions to the Administrative Law Judge’s Decision
June 19, 2020 | Brief in Support of Exceptions to the Administrative Law Judge’s Decision
June 19, 2020 | Exceptions to the Administrative Law Judge’s Decision
April 22, 2020 | Decision of the NLRB Administrative Law Judge, New York, NY
March 20, 2020 | Respondent’s Post-hearing Reply Brief
March 10, 2020 | Respondent’s Closing Post-hearing Brief
February 7, 2020 | NLRB Order to Deny Respondent's Motion to Dismiss the Complaint
January 24, 2020 | Reply Brief in Support of Respondent's Motion to Dismiss the Complaint
January 13, 2020 | Respondent's Motion to Dismiss the Complaint

PRESS RELEASE

March 31, 2021 | NCLA Satirical Tweet Case Against NLRB Garners Strong Amicus Support over Free Speech Concerns

Washington, DC (March 31, 2020) – Liberty-minded organizations, distinguished civil liberties activists, including former ACLU president Nadine Strossen, and prominent entertainers, Penn and Teller, are among the amici curiae who have filed briefs in support of the arguments presented by the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group in the satirical tweet case, FDRLST Media v. NLRB.

NCLA’s appellate brief asks the U.S. Court of Appeals for the Third Circuit to reverse the flawed ruling of the National Labor Relations Board (NLRB) from last November, which concluded that Mr. Domenech’s satirical tweet from his personal account constituted an unfair labor practice by his employer. FDRLST Media, publisher of the online magazine The Federalist, is fighting back because NLRB has neither subject-matter jurisdiction over this case nor personal jurisdiction over the company.

Eighteen amici curiae filed six amicus briefs in support of FDRLST Media and against NLRB’s deeply flawed power grab. 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 entertainers Penn & Teller filed jointly; separate amicus briefs were presented by TechFreedomSoutheastern Legal Foundation and two of six FDRLST employees (Emily Jashinsky and Madeline Osburn)the Institute for Free SpeechPacific Legal Foundation, and the National Federation of Independent Business.

Bridging the political divide, the amici curiae briefs contend that individuals have the right to speak freely and satirically to express their personal views under the First Amendment of the U.S. Constitution.

NCLA released the following statement:

“We are grateful that people from across the political spectrum, even those who would otherwise disagree on labor rights issues, have joined in support of FDRLST’s arguments and against NLRB’s. The Third Circuit should heed this clarion call.”

— Adi Dynar, NCLA Litigation Counsel

Excerpts from the six briefs amici curiae submitted in support of NCLA follow:

“[E]ven though Domenech’s tweet was a joke, this case is not. If you can be hauled into court and found in violation of federal law on the basis of satire, sarcasm, or hyperbole, everyone will self-censor their humor, to the detriment of freewheeling discourse. … When the NLRB can’t take a joke, the right to freewheeling speech both online and offline is threatened. The NLRB’s order should not be enforced.”

— Cato Institute, Reason Foundation, Individual Rights Foundation (IRF), DKT Liberty Project, Nadine Strossen, P.J. O’Rourke, Clay Calvert, Robert Corn-Revere, Michael James Barton, and Penn & Teller

“That we disagree with much of The Federalist’s speech … makes it all the more important that we defend the right to free speech in this case. There is no freedom for thought unless there is freedom for the thought that we hate. … What matters is that the petitioner has been unconstitutionally punished, its freedom of speech wrongfully curtailed.”

— TechFreedom

“On appeal, the employees submitted an amici curiae brief to the National Labor Relations Board (NLRB) in support of their employer. The NLRB rejected their amici brief. The employees now come before this open and impartial Court seeking an opportunity to be heard. As members of the press, Amici have a strong interest in protecting First Amendment freedoms to discuss public affairs without fear of reprisal.”

— FDRLST Media, LLC Employees Emily Jashinsky and Madeline Osburn and Southeastern Legal Foundation (SLF)

“Limiting the definition of “aggrieved person” to those who are actually impacted by an alleged unfair labor practice still fulfills Congress’s intent in passing the NLRA of securing workers’ right to organize, while also avoiding infringement of First Amendment rights.”

— Institute for Free Speech (IFS)

“Should the NLRB seek Chevron deference for its regulation, this Court should not defer for four reasons. First, Chevron should not apply to the agency’s determination of when it has authority to institute proceedings against the regulated public. Second, at best Congress chose to remain silent, and an agency should not be entitled to expand its authority in the face of congressional silence. Third, the statute limits charging authority to “aggrieved” persons. Fourth, even if the statute is ambiguous, the regulation is not a reasonable interpretation.”

— Pacific Legal Foundation (PLF)

“By allowing someone with no specific injury or relationship to the charged party to file a charge, the Board weaponizes the NLRA against the business community. It flips the NLRA on its head, from being an administrative check on businesses, to being a tool ripe for abuse.”

— National Federation of Independent Business (NFIB) Small Business Legal Center

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

March 22, 2021 | NCLA Asks Third Cir. to Reject NLRB’s Jurisdiction over Satirical Tweet Case

Washington, DC (March 22, 2021) – SWATting and Doxxing are noxious strategies that some immoral, left-of-center activists have employed to complicate and endanger the lives of their ideological adversaries. Perhaps unwittingly, the National Labor Relations Board (NLRB) has read its governing statute so broadly that it is now permitting a similarly abusive strategy to take root. Rather than send a SWAT team to your house under false pretenses, NLRB has passed a rule that allows “any person” to file “unfair labor practice” charges against a company and thereby launch the agency’s formidable investigative and enforcement apparatus against that company. By contrast, the statute Congress passed limits the ability to file such unfair labor practice claims to “aggrieved” persons who have some kind of connection to the company or its employees.

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed its opening brief today in FDRLST Media, LLC v. National Labor Relations Board. The brief asks the U.S. Court of Appeals for the Third Circuit to reverse the flawed ruling of the National Labor Relations Board from last November that it was an unfair labor practice for Mr. Domenech to have posted a satirical tweet from his personal account. Mr. Domenech’s employer, FDRLST Media, publisher of the online magazine The Federalist, is fighting back.   

NCLA argues that NLRB has no statutory authority to prosecute this action because the governing statute only allows an “aggrieved” person (such as an employee) to file a charge with the Board. The National Labor Relations Act does not empower random, unaffiliated people on Twitter, like Mr. Joel Fleming, to weaponize NLRB to harass employers for their employees’ personal speech. NLRB ordered FDRLST to “direct Domenech to delete the statement from his personal Twitter account,” but it has no power to make FDRLST silence its employees. And without a valid Charging Party, NLRB has no subject-matter jurisdiction over this case.

Further, nothing in this case has any connection to New York, yet NLRB prosecuted FDRLST in its New York branch. NLRB has subjected FDRLST to an onerous enforcement action that the agency lacks the personal jurisdiction to pursue lawfully.

Finally, NCLA argues that the Court should not defer to the NLRB’s interpretation of the statutory person-aggrieved requirement under any judicial deference doctrines (like ChevronCity of ArlingtonAuer, or Brand X), because such deference is unconstitutional. First, agency deference requires judges to abandon their duty of independent judgment, which is part of the judicial oath. Second, agency deference violates the Fifth Amendment’s Due Process Clause by commanding judicial bias toward a litigant. If a court defers to the legal interpretation of one of the parties before the court—such as a federal agency—that denies a fair trial before a neutral tribunal to the other party before the court.

The Third Circuit should reverse NLRB’s decision and vacate its order because NLRB has neither subject-matter jurisdiction over this case nor personal jurisdiction over this defendant. In addition, it should set aside the NLRB regulation that allows “any person” to file an unfair labor practice charge. If the court decides that NLRB does have jurisdiction over this case, then it should still reverse the Board. Mr. Domenech’s tweet is (1) protected by the First Amendment and 29 U.S.C. § 158(c), which allow people to speak freely and satirically to the public at large, and (2) NLRB cannot constitutionally order FDRLST to demand Mr. Domenech delete the tweet from his personal account.

NCLA released the following statements:

“NLRB is attempting to muzzle precisely the type of speech it was created to protect. Its display of boorish tendencies before its own ALJs and board members should work only to its detriment in federal court.”

– Adi Dynar, NCLA Litigation Counsel 

“The Constitution ensures that defendants cannot be dragged into court in jurisdictions with no connection to the parties or the alleged wrongdoing. That same rule applies when a federal agency is the prosecutor. There was simply no reason—let alone a constitutionally permissible one—for NLRB to bring this case in New York other than the Board’s brazen insistence that it’s above the law.”

– Jared McClain, NCLA Litigation Counsel 

For more information visit the case page here.

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document 

November 25, 2020 | NLRB Ruling in FDRLST Twitter Joke Case Lacks Common Sense and Sense of Humor, Says NCLA

Washington, DC (November 25, 2020) – The New Civil Liberties Alliance will challenge a ruling by the National Labor Relations Board (NLRB) that upheld the decision of Administrative Law Judge Kenneth W. Chu in the case of Joel Fleming v. FDRLST Media, LLC. NLRB has concluded that it was an unfair labor practice for Ben Domenech, publisher and co-founder of FDRLST Media, to have posted a satirical tweet from his personal account.

NCLA, a nonpartisan, nonprofit civil rights group, maintains the panel’s decision is flawed and that NLRB has subjected FDRLST to an onerous enforcement action where the agency lacks both subject-matter jurisdiction and personal jurisdiction under the Constitution and under NLRB’s own established practice. For starters, the National Labor Relations Act does not empower random people like Mr. Fleming, who was not “aggrieved” by the tweet and has no relationship to Mr. Domenech or FDRLST Media’s employees, to weaponize the NLRB’s investigatory processes against others with whom he disagrees and impose great costs on them. Further, FDRLST is not based in New York, and the alleged “unfair labor practice” did not occur in and was not directed at anyone residing in New York. Yet NLRB dragged the defendant into that jurisdiction.

The panel has ignored the fact that three employees of The Federalist submitted affidavits, testifying that the personal tweet in question by Mr. Domenech (who is not a party in this case) was, in fact, a joke, and that the employees took it as such, therefore, the tweet did not threaten FDRLST’s employees.

Additionally, the panel has ordered FDRLST to “direct Domenech to delete the statement from his personal Twitter account, and to take appropriate steps to ensure Domenech complies with the directive.” But FDRLST—as a media publication—does not regulate the personal speech of its employees, including that of Mr. Domenech, and there is no mechanism that would allow the company to demand he remove the tweet from his personal account.

NCLA will now appeal NLRB’s ruling to a federal appeals court.

NCLA released the following statements:

“Today’s decision shows that NLRB lacks both common sense and a sense of humor. It disregarded sworn employee statements saying that they perceived the tweet as just a joke. Apparently, NLRB thinks that to protect employees, the government must ignore them. We look forward to vindicating FDRLST Media in the U.S. Court of Appeals.” 

– Adi Dynar, NCLA Litigation Counsel 

“Despite the optimism we had, given that the law is on our client’s side, it comes as no real surprise that the NLRB refused to limit its own unconstitutional overreach. NCLA looks forward to raising our arguments before a federal court.”

Jared McClain, NCLA Litigation Counsel 

For more information visit the case page here.

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document 

July 21, 2020 | NCLA Rejects NLRB General Counsel’s Approach to The Federalist’s Satirical Tweet Case

Washington, DC (July 21, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed two different papers in the last 24 hours in Joel Fleming v. FDRLST Media, LLC. The papers include a response to the NLRB general counsel’s cross exceptions as well as a reply brief in support of the exceptions NCLA filed in response to the April 22nd decision issued by Administrative Law Judge (ALJ) Kenneth W. Chu. NCLA is asking the full National Labor Relations Board (NLRB) to reject the general counsel’s arguments because they have no basis in fact or law and because the Board lacks subject-matter jurisdiction in this case.

The general counsel is claiming that ALJ Chu abused his discretion when he admitted into evidence affidavits by three employees of The Federalist, an online magazine published by FDRLST, including one by Mr. Ben Domenech, the magazine’s co-founder and publisher. The affidavits, which testify that the personal tweet by Mr. Domenech (who is not party to this case) was, in fact, a joke, and that the employees took it as such, are relevant and admissible to show that the tweet did not threaten FDRLST’s employees.

NCLA believes ALJ Chu reached multiple flawed conclusions in his decision, none more so than those related to subject-matter jurisdiction, personal jurisdiction and venue. The National Labor Relations Act does not empower random people like Mr. Fleming, who was not “aggrieved” by the tweet, to sick NLRB on an employer with whom Mr. Fleming has no relationship. Further, the company is not based in New York, and the alleged unfair labor practice did not occur in and was not directed at anyone residing in New York. Yet NLRB dragged FDRLST into that jurisdiction anyway. Therefore, NLRB has subjected FDRLST to an onerous enforcement action where the agency lacks both subject-matter jurisdiction and personal jurisdiction under the Constitution and under NLRB’s own established practice.

Additionally, the general counsel is asking the court to order Mr. Domenech to delete the tweet in question. But the tweet was posted in Mr. Domenech’s personal Twitter account, not that of the FDRLST, and the general counsel’s demand would require that the FDRLST delete a tweet from an account that is not within its control. FDRLST—as a media publication—does not regulate the personal speech of its employees, including that of Mr. Domenech, and there is no mechanism that would allow the company to demand he remove the tweet from his personal account.

NCLA released the following statements:

“In the NLRB general counsel’s world of Alice in Wonderland, the prosecuting attorney’s evidence-less speculation is apparently more valid than actual evidence. And NLRB’s administrative law judges should supposedly order employers to order non-party employees to delete a tweet the employee published on the employee’s personal Twitter account. We are asking the Board not to go down that rabbit hole.”

— Adi Dynar, Litigation Counsel, NCLA

“Unsatiated by an initial ruling its favor, the general counsel is now back and asking for more-including remedies the Board is powerless to order and that infringe on the First Amendment rights an individual that is not party to the action. This must stop.”

— Kara Rollins, Litigation Counsel, NCLA

“Congress hasn’t authorized NLRB to bring an action like this, the Board’s own rules don’t allow it, and the Constitution forbids it. But at each turn, NLRB’s general counsel rejects any limits on the Board’s authority to prosecute viewpoints it dislikes, anywhere it likes. NCLA is simply asking the Board to follow the law where its ALJ and enforcement attorneys have thus far refused to do so.”

— Jared McClain, Staff Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

June 19, 2020 | NCLA Appeals Flawed ALJ Ruling on ‘Salt Mine’ Tweet to the National Labor Relations Board

Washington, DC (June 19, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, today filed exceptions and a supporting brief to the April 22nd decision issued by a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) in Joel Fleming v. FDRLST Media, LLC.

NCLA takes exception to multiple erroneous conclusions reached by ALJ Kenneth W. Chu, but specifically, those related to subject-matter jurisdiction, personal jurisdiction, venue, and what counts as an unfair labor practice.

On June 6, 2019, Mr. Ben Domenech, co-founder and publisher of The Federalist, an online magazine published by NCLA client FDRLST Media, jokingly commented on his personal Twitter account regarding a current event: “FYI@fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Joel Fleming, a random Tweeter, filed a complaint with NLRB the next day claiming the post constituted an “unfair” labor practice.

NLRB then pursued the case without conducting a proper investigation. The general counsel and Joel Fleming failed to establish subject-matter jurisdiction. The National Labor Relations Act (NLRA) does not empower random people like Mr. Fleming, who was not “aggrieved” by an alleged unfair labor practice, to sick NLRB on an employer to whom he has no relationship.

The general counsel and Mr. Fleming also failed to establish personal jurisdiction over FDRLST. The company is not based in New York, and the alleged unfair labor practice did not occur in and was not directed at anyone residing in New York. Yet NLRB dragged the defendant into that jurisdiction anyway. Therefore, NLRB has subjected FDRLST to an onerous enforcement action where the agency lacks both subject-matter jurisdiction and personal jurisdiction under the Constitution and under NLRB’s own established practice regarding proper venue.

Even if NLRB had proper jurisdiction, NCLA also takes exception to the ALJ’s conclusion that FDRLST violated Section 8(a)(1) of the NLRA with a tweet that “threatened” employees. NCLA maintains that ALJ Chu erred in his decision because the charging party and the Board’s prosecuting attorney failed to prove that FDRLST engaged in an unfair labor practice. The prosecuting attorney offered only his own speculations to prove his case against FDRLST. Such evidence fails to prove the case, and the First Amendment protects Mr. Domenech’s satirical speech.

NCLA requests that the Board schedule oral argument in this case.

NCLA released the following statement:

“This case was never lawfully opened in the first place. Mr. Fleming’s personal crusade against Mr. Domenech’s satirical Twitter commentary on a topic of public conversation has no business being a federal case. This egregious attempt to employ NLRB’s administrative apparatus to silence and punish FDRLST with administrative process and great costs on the basis of an ideological disagreement is entirely unlawful. The Board has a vital opportunity to get its house in order and send a message that it will not tolerate attempts by random people to harass third-party employers for their employees’ personal speech.”

— Adi Dynar, Litigation Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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April 23, 2020 | NCLA Will Appeal NLRB ALJ’s Decision in FDRLST Satirical Tweet Case

Washington, DC (April 23, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights organization will appeal Wednesday’s decision by a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) to a full Board in the case of FDRLST Media LLC and Joel Fleming. ALJ [Chu] decided that NCLA client FDRLST Media, LLC, which publishes the online magazine The Federalist, engaged in an unfair labor practice when co-founder and publisher Ben Domenech made a satirical comment about a current news event on Twitter.

The tweet in jest was posted on June 6th by Mr. Domenech, who jokingly wrote from his private Twitter account: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”  Joel Fleming, a random Tweeter, filed a complaint with NLRB claiming the post constituted an “unfair” labor practice.

In this case, the ALJ proceeded in deciding the question of whether the Tweet comprised an unfair labor practice and failed to respond in any detail to FDRLST’s forceful objections that NLRB lacked both subject-matter jurisdiction and personal jurisdiction to bring this case in New York.

Humor and satire are fully protected under the First Amendment and do not violate the National Labor Relations Act. NLRB has no authority to prosecute particular viewpoints and label them as violating the NLRA. A verbal joke can hardly be confused with a verbal threat. In fact, FDRLST employees attested to the fact in affidavits filed with the ALJ that they perceived the comment to be satirical in nature—a joke—and not a threat. But ALJ Chu did not get the joke.

The agency has erroneously interpreted the governing statute that only gives it jurisdiction when an “aggrieved” person (such as an employee) files a charge with the Board to mean any person. This mistake provides the opportunity for someone completely unrelated to The Federalist or its employees, like Joel Fleming, to activate the machinery of government and press unsubstantiated charges against others with whom they disagree politically.

Further, neither Ben Domenech nor The Federalist lives or works in the State of New York, yet NLRB dragged the defendant into that jurisdiction. NLRB has subjected Mr. Domenech and FDRLST to an onerous enforcement action that the agency lacks the subject-matter jurisdiction and personal jurisdiction to pursue lawfully.

NCLA released the following statement:

“An ALJ assigned to a case by the NLRB ruling in favor of the NLRB is the very definition of an administrative-adjudication system rigged against the non-government litigant. The process itself, as we have seen in this case, can be an oppressive punishment. Now, we wait for another wasteful round of litigation before the Board until we can obtain redress from a federal court.”

Adi Dynar, Litigation Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

For more information visit us online at NCLAlegal.org.

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January 14, 2020 |NCLA Defends Founder of The Federalist from Outrageous NLRB Action

NCLA Defends Founder of The Federalist from Outrageous NLRB Action Instigated by Random Tweeter Who Is Not an “Aggrieved” Party Under Federal Labor Law

Joel F. v. FDRLST Media, LLC

Washington, DC (January 14, 2020) — A tweet in jest by Ben Domenech, a co-founder and publisher of NCLA client FDRLST Media, LLC, which publishes the online magazine, The Federalist, resulted in the filing of a formal charge with the National Labor Relations Board (NLRB). The charging party, Joel F., a Tweeter who saw the post, retweeted it at the NLRB, and then he filed a complaint about the tweet with the NLRB, claiming that sending it constituted an “unfair” labor practice. 

 

The tweet in question was posted on June 6th by Mr. Domenech who jokingly wrote from his private account: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”  The governing statute only allows an “aggrieved” person (such as an employee) to file a charge with the Board. However, the NLRB has interpreted “aggrieved” to mean any person. This broad interpretation allows anyone who deems himself aggrieved—including a completely uninvolved person like Joel F.—to weaponize the NLRB’s investigatory processes against others with whom they disagree. In Domenech’s case, the charging party is someone on Twitter, completely unrelated to The Federalist or its employees.   

 

Armed with this misguided complaint, NLRB is now subjecting FDRLST and Mr. Domenech to an onerous enforcement action that the agency lacks the jurisdiction to pursue. NCLA has filed a motion asking the NLRB administrative law judge to dismiss the case outright for lack of jurisdiction.

 

“A random person on Twitter cannot claim ‘unfair labor practice’ just because a joke didn’t sit well. Individuals who are not directly impacted by the consequences of a comment on social media should not be allowed to co-opt the muscle of the federal Administrative State to bring frivolous complaints, but that is exactly what happened here. We are hopeful that the ALJ will grant our motion to dismiss and limit the NLRB’s investigatory and prosecutorial jurisdiction to those actually ‘aggrieved.’”
—Adi Dynar, NCLA Litigation Counsel

“No employee objected to Ben’s joke, and no one actually in a position to perceive or complain about an unfair labor practice did so. Setting aside the fact that NLRB apparently lacks any sense of humor, this investigation is a colossal waste of taxpayer dollars. This case will at least establish that NLRB must tell troublemakers like Joel F. to MYOB.” 

—Mark Chenoweth, NCLA Executive Director and General Counsel  

Visit case summary page for more information: https://nclalegal.org/joel-f-v-fdrlst-media-llc/

 

ABOUT NCLA 

NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org

 

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BLOGS

November 13, 2020 | What Do Burger King, Ford Motor Co., and NLRB Have in Common?

Can a court force you to defend yourself against a lawsuit thousands of miles away in a place where something you made, created or said just happened to end up? The Supreme Court may answer this critical question in Ford Motor Co. v. Bandemer, consolidated with Ford Motor Co. v. Montana Eighth Judicial District.

In 2015, Adam Bandemer was injured after his car collided with a snowplow and claimed that his injuries occurred because his Ford airbag failed to deploy. Ford manufactured the car in Ontario, Canada, sold it in North Dakota, and, after 17 years and several transactions in the used-car market, the car ended up in Minnesota. Ford argues that, despite selling thousands of vehicles in Minnesota annually, it did not sell Bandemer’s car in the state and, as a result, should not be subject to the state’s jurisdiction. The Minnesota Supreme Court decided in favor of Bandemer on the theory that Ford had sold many cars in Minnesota and actively advertised those products in the state. In Ford Motor Co. v. Montana Eighth Judicial District, a case involving a similar set of facts as Bandemer, the Montana Supreme Court allowed a plaintiff to pursue a product liability suit against Ford even though Ford sold the car in question in Washington state. Because of the similarity of their facts and the legal questions involved, the Supreme Court has consolidated these two cases.

Courts can exercise either general or specific personal jurisdiction over defendants, but the Due Process Clause of the U.S. Constitution restricts courts’ authority. Under Daimler AG v. Bauman, a court with general jurisdiction over an out-of-state defendant can “hear any and all claims” only if the defendant’s connections with the court “are so constant and pervasive as to render it essentially at home.” A corporation is “at home” if its headquarters or place of incorporation is in a place where a court has jurisdiction.

However, because Ford is not “at home” in Minnesota or Montana, the plaintiffs in these cases have relied upon specific jurisdiction, which occurs when the defendant “purposefully avails” itself of doing business in the state, and the claims “arise out of or relate to” the defendant’s actions in the state—Burger King Corp. v. Rudzewicz. Ford admitted that it purposefully availed itself of doing business in Minnesota and Montana. Hence, the main issue is whether the claims “arise out of or relate to” Ford’s activities in those states.

In oral argument before the Supreme Court, Ford argued that there should be a “proximate-cause requirement” so that a state court can only exercise specific jurisdiction over the defendant if the plaintiff can demonstrate that the defendant’s activities in the forum state proximately caused plaintiff’s injury. In contrast, the plaintiffs argued for a much broader standard but conceded that Ford could avoid specific personal jurisdiction for vehicles sold out of state if it did not sell the same model in the state. If the Court accepts the plaintiff’s argument, it could lend credence to the “stream of commerce” theory whereby a defendant can purposefully avail itself of the forum state merely by selling products that end up there.

While corporations like Ford have the resources to face a more expansive reading of specific personal jurisdiction, the plaintiff’s proposed rule could have a devastating effect on small businesses and individuals. These smaller parties do not have the resources to defend themselves against suits in courts that may be hundreds, if not thousands, of miles away from where they live and work and whose actions only loosely “caused” the alleged injuries.

This issue of fundamental fairness is at the core of Joel Fleming v. FDRLST Media, LLC. In this case, Ben Domenech, the co-founder and publisher of the online magazine, the Federalist, posted a joking tweet stating “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Joel Fleming, a tweeter who saw the post, filed a complaint with the National Labor Relations Board (NLRB) arguing that Domenech’s tweet constituted an “unfair” labor practice because it allegedly discouraged potential unionization efforts by the magazine’s staff.

The NLRB has argued that it can pursue a burdensome enforcement action against The Federalist even though the agency’s enforcement statute only permits an “aggrieved” person to file a complaint, with the NLRB embracing the expansive standard that anyone can be “aggrieved.”

Curiously, NLRB Region 2, which has jurisdiction over the southern New York state, is presiding over the action. However, it is doubtful that Region 2 has general or specific personal jurisdiction over the LLC because it is not “at home” there, and none of the events leading to the suit arise out of or relate to any activities occurring within Region 2. The magazine’s headquarters is in Washington, D.C., and its place of incorporation is in Delaware. First, there is no allegation that the Federalist purposefully directed itself toward any residents of southern New York, and, second, Joel Fleming, the “aggrieved” person under the statute, lives outside of Region 2 and did not allege any harms that occurred within Region 2.

As the Supreme Court observed in Burger King, the exercise of specific personal jurisdiction must “comport with fair play and substantial justice.” Therefore, at the center of the legal debate in both Bandemer and FDRLST is whether it is fundamentally fair to subject defendants to legal proceedings hundreds or thousands of miles away in a place where something that you made, created or said just happened to end up. The answer to this question will exert a tremendous impact on the due process rights of all.

OPINION

April 28, 2020 | How My Joke on Twitter Became a Federal Case | The Wall Street Journal

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