FDRLST Media, LLC v. NLRB

Join the new civil liberties movement. Protect Americans from the Administrative State!

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

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

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.

Click here to download

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.

Click here to download

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

 

Click here to download

OPINION

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