Volume 96, No. 3, Summer 2024
By Josh Rosenberg Daneri

“Just kidding!” Do these words offer comfort following a threat? “It was only a joke.” Do these words elicit forgiveness? “It’s funny because it’s true.” Would it be funny if it were not true? “Can’t you take a joke?” Should anyone have to laugh at being threatened? This Note argues that American jurisprudence should reflect the conventional wisdom that the answer to these questions is “no.”

In 1935, the National Labor Relations Act (NLRA), a statute whose stated purpose was to encourage collective bargaining, was signed into law. The NLRA created an independent federal agency, the National Labor Relations Board (NLRB), to effectuate the statute. The statute delegates to the NLRB the authority to prosecute unfair labor practices (ULPs) and to process petitions of unions seeking to represent employees for purposes of collective bargaining. To those ends, Section 8(a)(1) of the NLRA makes it a ULP for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in” the NLRA. With the addition of Section 8(c) of the NLRA as part of the 1947 Taft-Hartley amendments, Congress limited Section 8(a)(1) violations only to employer expression containing the “threat of reprisal or force or promise of benefit.” 

A court’s interpretation of Section 8(a)(1) is as relevant today as it was in 1935. Since the summer of 2021, workers at 642 Starbucks locations in the United States have organized campaigns that resulted in unions winning 389 NLRB elections. NLRB General Counsel Jennifer Abruzzo has filed over twenty complaints against Starbucks for its ULPs during that organizing campaign. In one case, the Starbucks CEO made statements that likely violate Section 8(a)(1) of the NLRA. Section 8(a)(1) threats have also been lodged against the CEO of Amazon, which since 2021 has undergone a wave of union organizing. In fiscal year 2022, the NLRB saw a 53% increase in union election petitions (the highest single-year increase since 2016), and in 2023, the number of unionized employees in the United States rose by 191,000 since fiscal year 2022. Accordingly, the interpretation and application of Section 8(a)(1) of the NLRA is not a mere academic endeavor rooted in a bygone era.

Since at least 1953, employers accused of violating Section 8(a)(1) of the NLRA have been raising Section 8(c) defenses on the grounds that the expression was made in a “bantering” tone. In Monarch Foundry Co. the NLRB held that although a supervisor’s questions about an employee’s union proclivities were “asked in a bantering tone,” they still violated Section 8(a)(1) because “[i]nterrogation may be just as effective an invasion of the rights protected by Section 7 of the Act when it is conducted under the guise of an exchange of pleasantries.” Nonetheless, courts were sometimes receptive to a defense that the questioning was meant to be humorous. By 1977, though, in Ethyl Corp., the NLRB broadened the Monarch Foundry rule beyond just interrogations:

“[T]he unlawful nature of a statement is not blunted merely because interrogations of, warnings to, or disparaging statements about union adherents are accompanied by laughter or made in an offhand humorous way.” Since that decision, circuit courts reviewing appeals from NLRB decisions have waffled on this issue and have not always deferred to the Board’s Ethyl Corp. rule.

On June 6, 2019, media outlets reported that unionized employees of Vox Media engaged in a walkout. That day, Ben Domenech, the publisher of The Federalist (a conservative online magazine and podcast not associated with the Federalist Society), publicly posted 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.” In 2020, an NLRB Administrative Law Judge (ALJ) found that the post violated Section 8(a)(1) of the NLRA, despite Domenech’s defense that it was made in jest. On appeal, the NLRB affirmed the judge’s order. In 2022, the Third Circuit Court of Appeals set aside the order, explaining that “by failing to consider the tweet in context, [the NLRB] misconstrued a facetious remark as a true threat.”

This Note argues that the FDRLST II opinion cannot be squared with NLRB law establishing that humor or jest does not make lawful an otherwise unlawful Section 8(a)(1) statement. The Third Circuit panel engaged in a novel reading of longstanding Supreme Court jurisprudence and exaggerated the First Amendment concerns posed by the post. The court should have affirmed the NLRB decision. Additionally, the court displayed emotional insensitivity by rendering an otherwise threatening statement lawful because of an allegedly humorous motive.

Section II of this Note provides the facts and procedural history of the FDRLST I opinion, beginning in Part II.A with a summary of the NLRB’s administrative procedure. Section III traces the relevant legal history. Part III.A discusses the evolution of Section 8(a)(1) law generally, and Parts III.B and III.C focus specifically on employers’ humor defenses. Part III.D discusses the NLRB’s nonacquiescence policy, the history of courts’ deference to NLRB decisions, and courts’ recent trend toward mistrust of administrative agencies. Section IV explains the Third Circuit’s legal analysis in FDRLST II in detail.

Section V offers a critique of the court’s opinion, with a focus on Supreme Court jurisprudence and academic literature on emotional intelligence. Ultimately, this Note argues that despite contemporary cynicism about the political biases of jurists, the NLRB’s decision in FDRLST I represents an exemplary manifestation of administrative expertise insulated from partisan overreach.