From today's Third Circuit decision in Fdrlst Media, LLC v. NLRB, by Judge Thomas Hardiman, joined by Judge Anthony Scirica:
The Employer [FDRLST] operates The Federalist, a right-leaning internet magazine that publishes commentary on cultural, political, and religious issues of current interest, including labor issues. In June 2019, the Employer found itself at the center of its own labor controversy. On June 6, media outlets reported that 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, posted a tweet from his personal Twitter account that read: "FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine." Domenech's tweet appeared in the feeds of more than eighty thousand Twitter users who follow his account. The "@fdrlst" tag refers to The Federalist's official Twitter account. At the time, the Employer had just seven employees, six of whom were writers and editors at The Federalist. At least one employee viewed the tweet, but the record does not show that any employee expressed concern over its message.
The following day, Joel Fleming, a Massachusetts resident with no connection to FDRLST Media, filed an unfair labor practice charge with the Board's New York Region. The charge alleged that Domenech's tweet violated Section 8(a)(1) of the National Labor Relations Act of 1935 (NLRA or Act) ….
The NLRB concluded the tweet was a threat of reprisals prohibited by federal labor law, and "ordered the Company to direct Domenech to delete his tweet." But the court disagreed:
