NLRB Doesn’t Think Ben Domenech is Funny, Isn’t Amused By Him
Calling down the thunder when you feel invincible on Twitter, then griping about your victimhood of wetness when it rains, isn’t a good look
Everyone was having a good time on the Twitter dot com, and then…:
National Labor Relations Board : What do you mean, It’s funny?
Ben Domenech : It’s funny, you know. It’s a good story, it’s funny, I’m a funny guy. [laughs]
NLRB : What do you mean, you mean you talk? What?
Ben Domenech : It’s just, you know. You’re just funny, it’s… funny, you know the way joke about salt mines and everything.
NLRB : [it becomes quiet] Funny how? What’s funny about it?
Aditya Dynar, Ben’s Lawyer : John (Ring, Chairman of the NLRB) no, you got it all wrong.
NLRB : Oh, oh, Aditya. He’s a big boy, he knows what he said. What did ya say? Funny how?
Ben Domenech : Jus…
NLRB : What?
Ben Domenech : Just… ya know… you’re funny.
NLRB : You mean, let me understand this cause, ya know maybe it’s me, I’m a little messed up maybe, but it’s funny how, I mean funny like a clown in the salt mines, that amuses you? It make you laugh, your employees are here to f%$#$’ amuse you? What do you mean funny, funny how? How is salt mines funny?
Ben Domenech : Just… you know, how I tell the story, what?
NLRB : No, no, I don’t know, you said it. How do I know? You said it’s funny. How the f#$% are salt mines funny, what the f*&^ is so funny about salt mines? Tell me, tell me what’s funny!
Ben Domenech : Just… you know, how I was tweeting the story, I was riffing of Elon, what?
NLRB : No, no, I don’t know, you said it. How do I know? You said salt mines are funny. How the f#$% are salt mines for your employees funny, what the f$%^ is so funny about labor law? Tell me, tell me what’s funny!
Ben Domenech : [long pause]…
Well, not exactly:
The publisher of conservative online magazine The Federalist unlawfully threatened workers when he said via Twitter that he’d send them “back to the salt mine” if they attempted to form a union, the National Labor Relations Board held.
“We find that employees would reasonably view the message as expressing an intent to take swift action against any employee who tried to unionize the Respondent,” the NLRB said in a ruling Tuesday. “In addition, the reference to sending that employee ‘back to the salt mine’ reasonably implied that the response would be adverse.”
The agency in recent years has policed high-profile executives’ anti-union language on social media, citing Tesla Inc. CEO Elon Musk for a tweet and reaching a settlement with Barstool Sports co-founder David Portnoy that required the deletion of offending tweets.
The decision upholds an administrative law judge’s ruling that FDRLST Media publisher Ben Domenech’s tweet violated federal labor law. The board ordered Domenech to delete the “salt mine” statement from his personal Twitter account.
FDRLST will challenge the NLRB’s ruling to a federal appeals court, said the company’s lawyer, Aditya Dynar of the New Civil Liberties Alliance.
“Today’s decision shows that NLRB lacks both common sense and a sense of humor,” Dynar said in a statement. “It disregarded sworn employee statements saying that they perceived the tweet as just a joke.”
In Tuesday’s ruling, an NLRB panel of Chairman John Ring (R) and members Marvin Kaplan (R) and Lauren McFerran (D) said the motive behind Domenech’s tweet was irrelevant. What matters is whether the statement tends to interfere with workers’ rights under the National Labor Relations Act, the board said.
The legal ins and outs of this I’ll leave to others. The continued litigating (The Federalist through their counsel is appealing) of how social media is used as “official” communication is as interesting as the relative labor law issues here, not to mention the overall role of the NLRB itself.
What I can speak on is from having been in management of employees in both union and non-union shops. Maybe folks like Ben Domenech, who has been a writer since 15, aren’t familiar with how labor law and union relations work. Granted, the new push and proliferation of “writers’ unions” such as what Domenech was threatening against might do things a bit differently from blue collar unions, but the laws and principles are still the same. So when you tweet something like this as the boss of a company you’re going to have problems:
The jackassery of talking about your employees like that aside — which is a question of bad leadership and being human to your employees more than a legal one — you can’t do that, and no “it’s just a joke” isn’t going to cut it. Even granting that the complaints in this case came from outside Domenech’s employees- and let’s not kid ourselves; there are a bunch of long-running personal beefs at work here as well — Ben here has done more to escalate the situation than defuse it, by his own admission.
The NLRB proposed a settlement: I delete the joke, I post information on the rights of employees to unionize, and the complaint goes away. I said no.
That meant the NLRB’s case against me would be adjudicated by an NLRB employee, Administrative Law Judge Kenneth Chu. As expected, we lost. The board called no witnesses. It submitted my tweet and printouts of Federalist articles and asserted we were not a publication but an “anti-union website.”
The government lawyer claimed that “the editorial positions of the website are reasonably…understood as Mr. Domenech’s own,” even though we publish thousands of conflicting opinions under various bylines. Federalist employees filed affidavits stating they viewed my tweet as a joke. Mr. Chu dismissed their opinions as subjective and irrelevant.
I have, and have had, questions about the NLRB’s ever-evolving role since its inception. I got all sorts of issues with how both we as a people and the government are currently messing up the free speech of the internet and social media. Domenech has his own set of issues and from his past affiliations that can be taken a number of ways.
If you want to run a business, especially a high profile business like media commentary, the social media age means you get judged by what you tweet. Not just by your employees either, but regulatory agencies. If the regulatory agency says “delete the joke” if it was a joke, and you decided to fight it out on that hill, then you clearly didn’t think it was a joke at all, but a matter of principle. Calling down the thunder when you feel invincible on Twitter, then griping about your victimhood of wetness when it starts raining, is not a good look. Worst of all, it’s bad for business.
Originally published at https://ordinary-times.com on November 30, 2020.
