NLRB: Prosecutor, Judge, and Jury

WASHINGTON, DC: (September 15, 2020): In the latest attempt by an agency to expand its reach, today the National Labor Relations Board (NLRB) rejected SLF's amicus brief on behalf of two employees for The Federalist.

In June 2019, Ben Domenech of The Federalist tweeted in response to a recent media walkout, “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Everyone got the joke - except one Twitter user, who does not even work for Domenech. Even though he was not an employee, the Twitter user successfully brought a claim against Domenech in the NLRB.

When two employees submitted sworn affidavits on Domenech's behalf, testifying that they understood the sarcastic nature of the tweet and did not feel that Domenech was threatening their employment, the NLRB judge rejected their testimony because it would add no value to the case. Likewise, the NLRB appeals board offered the same reasoning when it rejected SLF's amicus brief on the employees' behalf.

The issue goes far beyond the NLRB's refusal to hear from Federalist employees. Politically appointed NLRB agents have overseen every aspect of this lawsuit. They (1) wrote the law Domenech allegedly violated, (2) investigated the claim against Domenech, (3) prosecuted the claim against him, (4) presided as judge over the claim, and (5) served as the only channel for appeal following the adverse decision.

"This clearly violates separation of powers principles," states SLF General Counsel Kim Hermann. "How can anyone expect a fair trial when political bodies are simultaneously the investigator, prosecutor, judge, and jury?"

Click here for the NLRB's decision.

Click here for the Administrative Law Judge's decision.

Click here for the testimony of two Federalist employees.

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