Two years ago, Ben Domenech of the Federalist tweeted “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” A number of people, including yours truly, filed an unfair labor practice charge because the tweet contains a threat of retaliation that could cause a reasonable Federalist employee to not engage in union activities.
The underlying law on all of this is very well-settled. Employers cannot make statements that could coerce employees in the exercise of their union rights. Anyone can file a charge with the NLRB. The NLRB has jurisdiction to pursue a complaint. Deciding when an utterance crosses the line into coercion is done using a “reasonable person” standard where a judge effectively uses their intuition to decide how a reasonable employee might take the utterance. The subjective feelings of any given employee are not dispositive when it comes to the reasonable person analysis. There is no “I was just kidding” type defenses but a judge can certainly weigh that, and anything else, into their overall “reasonable person” intuitions.
In response to the charge, the Federalist hired the National Civil Liberties Alliance, which tried to use the case to float exotic, but far-reaching, legal theories that would undermine the NLRA and the NLRB. They asked the court to reinterpret the NLRA as forbidding bystanders from filing charges. They asked the court to reinterpret Article III of the constitution as forbidding agencies from bringing these kinds of complaints.
The Supreme Court has already rejected these theories and so, in order to get the theories established as the new law, NCLA needed to lose the case at every level and then hope the Supreme Court would hear the case in order to bless the arguments.
For a couple of years, NCLA was doing a good job of losing the case to set themselves up to make these statutory and constitutional arguments. The NLRB General Counsel (Republican), an administrative law judge, and all three impaneled NLRB board members (two Republicans, one Democrat) all looked at the case and concluded that a reasonable person would be coerced by the tweet.
But, then, in a slightly amusing twist, NCLA managed to get a favorable decision in the Third Circuit. The Third Circuit rejected all of NCLA’s statutory and constitutional theories, but then somewhat surprisingly decided to just conclude that, contrary to what the five prior judges and quasi-judges felt, they don’t think a reasonable person would have been coerced.
So after all of this incredible build up full of far-reaching legal theories, the Third Circuit ended up just affirming every single existing point of law, including the prevailing reasonable-person standard for coercive statements, and then reaching a no-coercion conclusion in this case with that same law.
Of all the outcomes possible for this case, this one is by far the biggest let down. I’m let down because Domenech does not have to remove his coercive statement and do a notice-posting. NCLA is let down because now they can’t appeal the decision, meaning that the statutory and constitutional theories they were actually focused on never got any hearing and never will get any hearing. The law in dispute was completely reaffirmed but with no way to appeal the reaffirmation of it.
It was all for nothing!