Federalist publisher's 'salt mine' tweet did not violate labor law -3rd Circ

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The United States Court of Appeals for the Third Circuit is seen in Philadelphia, Pennsylvania, U.S. REUTERS/Andrew Kelly

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(Reuters) - The publisher of conservative online magazine The Federalist did not run afoul of federal labor law by tweeting that he would send employees "back to the salt mine" if they unionized, a federal appeals court has ruled.

A 3rd U.S. Circuit Court of Appeals panel ruled Friday that there was no evidence that the tweet from publisher Ben Domenech was perceived by any employees as a threat. The decision overruled the National Labor Relations Board, which had found the tweet unlawful after someone unconnected to The Federalist lodged a complaint about it.

"My thanks to the 3rd Circuit for this decision, which honors and defends free speech and the right to tell a joke even if a humorless Twitter troll doesn't get it," Domenech said in a statement.

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The NLRB could not immediately be reached for comment.

Domenech's tweet came in June 2019, after employees of left-leaning digital media network Vox Media staged a walkout that received significant media attention. The same day, Domenech tweeted: "FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine."

Joel Fleming, a securities litigator with Block & Leviton in Boston with no direct connection to The Federalist, then filed a complaint with the NLRB claiming the tweet would interfere with the rights of the publication's employees to unionize under the National Labor Relations Act (NLRA). No Federalist employees brought any complaints.

The Federalist argued that the tweet was a joke, and that the NLRB lacked authority to act on a complaint by a third party like Fleming.

In November 2020, the NLRB ruled that the tweet was unlawful, saying that it tended to constrain workers' right to organize regardless of Domenech's motive. The Federalist appealed.

Circuit Judge Thomas Hardiman, writing for the panel on Friday, said the tweet had to be read in context.

"The record contains no sign - indeed, no inkling - of any circumstance at (The Federalist) that leads us to conclude that a reasonable employee would interpret Domenech's tweet as a veiled threat," he wrote.

Circuit Judge Anthony Scirica joined in the opinion. Circuit Judge Paul Matey concurred in the judgment, but said the court should not have addressed the merits of the case at all because the NLRB lacked jurisdiction to bring a case in response to a complaint by an uninvolved third party in the first place.

The case is FDRLST Media LLC v. NLRB, 3rd U.S. Circuit Court of Appeals, No. 20-3434.

For FDRLST: Mark Chenoweth and Kara Rollins of the New Civil Liberties Alliance

For the board: Micah Jost

Read more:

Publisher says NLRB's 'Scabby' ruling applies to 'salt mine' tweet

Publisher's Twitter threat to send workers 'back to the salt mine' was unlawful- NLRB

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.