On June 6, 2019, unionized employees of Vox Media, a left-leaning digital media company, walked off the job during union contract negotiations. That same day, Ben Domenech, executive officer of FDRLST Media and publisher of The Federalist (which is the direct opposite of left-leaning), posted this tweet from his personal Twitter account: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”
be jeopardized if employees attempted to unionize.”
The record does not show
that Domenech ever used this account to communicate with
employees or that employees were required to follow it. Taken
together, a reasonable FDRLST Media employee who became
privy to Domenech’s tweet—posted the same day as the Vox
Media walkout—would be far more likely to view the tweet as commentary on a contemporary newsworthy and controversial topic than as a threat that implicated her status
with the Employer.
Thus, the Court concluded that the NLRB had wasted its time and resources on an issue that one could only reasonably interpret as sarcasm.
[T]he Board spent its resources investigating an
online media company with seven employees because of a
facetious and sarcastic tweet by the company’s executive
officer. Because the Board lost the forest for the trees by failing
to consider the tweet in context, it misconstrued a facetious
remark as a true threat.