Joel Fleming v. FDRLST Media, LLC

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CASE STATUS:
Active

CASE START DATE:
June 7, 2019

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

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

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

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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OPINION

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