By Valerie Richardson - The Washington Times - Tuesday, May 18, 2021

Conservatives are learning the hard way that joking about union organizing is no laughing matter.

Commentator Ben Shapiro’s tongue-in-cheek tweet last year about striking employees spurred a federal complaint that touched off a seven-month investigation by the National Labor Relations Board, which ultimately dismissed the matter in a decision announced Monday.

What was the tweet? Referring to Spotify staffers threatening to strike over comedian Joe Rogan’s show, Mr. Shapiro, founder of The Daily Wire, tweeted, “I have a message for DW employees. If you ever try anything like this, you can consider your strike permanent.”

“NLRB’s dismissal of these frivolous charges is welcome,” said Adi Dynar, litigation counsel for the New Civil Liberties Alliance, which represented The Daily Wire. “But this incident showcases the sad reality that NLRB will look for ways to silence honest discussion and debate on social media platforms.”

Joshua Herr, general counsel for The Daily Wire, said that the investigation included months of “burdensome and harassing demands without accountability to a judge or jury,” but Mr. Shapiro may have gotten off easy.

Still fighting a similar complaint is FDRLST Media, publisher of The Federalist, where co-founder Ben Domenech’s sarcastic June 2019 tweet about sending employees “back to the salt mine” is now before the Third Circuit Court of Appeals.

Mr. Dynar, who also represents FDRLST Media, challenged in March the NLRB’s ruling that the tweet violated federal labor law, arguing that the jab was clearly comedic and that the board lacked jurisdiction because the complaint was filed by a third party unconnected to The Federalist.

Mr. Domenech, citing a walkout by Vox Media staffers, tweeted: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”

The cases have another thing in common. They were brought by the same person: Joel Fleming, a securities litigator with Block & Leviton in Boston.

In its letter, the board said it dismissed The Daily Wire case because Mr. Shapiro “effectively repudiated” his post. Within hours, he retweeted an AFL-CIO tweet that included an NLRB Employees Rights poster with the message, “Here’s some reading material Ben.”

Said Mr. Shapiro in his retweet: “Thanks, @AFLCIO, for helpfully pointing out that DW employees have the same NLRA protections as everyone else! We are fully aware of this, and have a fully-staffed HR team.”

Mr. Fleming shared an April 16 email from an NLRB investigator who said that Mr. Shapiro had “repudiated the unlawful behavior at issue in this charge.”

“I am gratified that the NLRB determined that Mr. Shapiro’s tweet was ‘unlawful,’” said Mr. Fleming in an email. “Under existing law, because The Daily Wire ‘sent an e-mail to all staff that repudiated the unlawful tweet and included a link to the NLRB’s Employee Rights poster,’ the NLRB could not bring further action.”

He added: “That’s why it is so important for Congress to pass the PRO [Protecting the Right to Organize] Act to enhance the remedies that the NLRB is able to seek for violations of the NLRA.” The measure passed the House in March with just five Republican votes

Also taking on Mr. Shapiro over his tweet was the Committee to Preserve the Religious Right to Organize, which has a history of submitting NLRB grievances, including complaints against Hobby Lobby in 2014 and Barstool Sports in 2019.

Barstool president Dave Portnoy tweeted that he would fire anyone “on the spot” who contacted a specific person about union organizing. In the January 2020 settlement, Barstool agreed to post employee rights’ notices, delete two tweets and remove a video, “Professor Nate Explains Unions,” from its website.

Will Mr. Fleming, who said he has no connection to the committee, drop his complaint against FDRLST Media? Not likely.

While Mr. Shapiro followed up with worker-rights information, “Mr. Domenech did not. Therefore, the cases are wholly distinct,” said Mr. Fleming.

Attorneys with the New Civil Liberties Alliance argued that the NLRB should draw the line at investigations based on gripes about clearly sarcastic tweets filed by outsiders unrelated to the parties involved.

“If you look at the National Labor Relations Act, it allows aggrieved people to file charges, and here we have a situation where there is no aggrieved person,” said Mr. Dynar. “Typically, you see a union or an employee filing these charges alleging unfair labor charges. You don’t have some random person on the internet filing these charges.”

Mark Chenoweth, NCLA executive director and general counsel, said that the board “never should have made a federal case out of this tweet,” referring to the Shapiro episode.

“This time, eventually, the board backed down and decided not to pursue a charge,” Mr. Chenoweth said. “However, there is no good reason why the NLRB should be able to investigate charges like this in the first place. Unless an aggrieved party — an employee or someone else closely connected to a company — files a charge with NLRB, the board should butt out of employer-employee relations.”

Mr. Fleming argued that the Supreme Court has ruled that the National Labor Relations Act does not require that labor organizations or workers file such charges, and called it “disingenuous for them to pretend otherwise.”

In his 2020 ruling against FDRLST Media, administrative law Judge Kenneth Chu ruled that the “salt mine” expression was “an obvious threat,” ordering the publication to “cease and desist” threatening employees and post notices at the workplace and online about union rights.

Backing the appeal are conservative and free-speech groups as well as former American Civil Liberties Union president Nadine Strossen, humorist P.J. O’Rourke and magicians Penn & Teller, according to the alliance.

“The NLRB’s serious misinterpretation of Domenech’s Twitter joke has implications that go beyond this one case,” said an amicus brief filed by Cato Institute vice president Ilya Shapiro. “If every public tweet and statement were read with the same tone-deaf literalism as The Tweet was here, public discourse would be seriously chilled by fear of legal persecution.” 

When it comes to humor, however, not everyone gets the joke. Asked if he should have taken Mr. Shapiro’s tweet in the spirit of satire, Mr. Fleming referred to a photo last month of the conservative commentator buying a plank of wood to support Home Depot.

“The only time that Ben Shapiro has ever been funny was when he posted a video of himself proudly holding a single piece of lumber in a plastic bag,” he said.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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