vacating the NLRB’s finding that a Tweet was an unfair labor practice and holding that when “protecting employees’ statutory labor rights, neither we, nor the Board, can violate an employer’s right to free speech under the First Amendment”
How later courts described this case
- vacating the NLRB’s finding that a Tweet was an unfair labor practice and holding that when “protecting employees’ statutory labor rights, neither we, nor the Board, can violate an employer’s right to free speech under the First Amendment”
- requiring proof of prejudice for NLRB venue regula- tion
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-3434
____________
FDRLST MEDIA, LLC,
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD
____________
No. 20-3492
____________
NATIONAL LABOR RELATIONS BOARD,
Petitioner
v.
FDRLST MEDIA, LLC
____________
On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations
Board
(NLRB Case No. 02-CA-243109)
____________
Argued on November 10, 2021
Before: HARDIMAN, MATEY, and SCIRICA, Circuit
Judges.
(Filed: May 20, 2022)
Jared McClain [Argued]
Institute for Justice
901 North Glebe Road
Suite 900
Arlington, VA 22203
Mark Chenoweth
Kara M. Rollins
New Civil Liberties Alliance
1225 19th Street, NW
Suite 450
Washington, DC 20036
Counsel for FDRLST Media, LLC
Kimberly S. Hermann
Southeastern Legal Foundation
560 West Crossville Road
Suite 104
Roswell, GA 30004
Counsel for Amici Emily Jashinsky, Madeline Osburn,
and Southeastern Legal Foundation, in support of
FDRLST Media, LLC
2
Thomas A. Berry
Trevor C. Burrus
Ilya Shapiro
CATO Institute
1000 Massachusetts Avenue, NW
Washington, DC 20001
Counsel for Amici CATO Institute, Reason
Foundation, Individual Rights Foundation, DKT
Liberty Project, Nadine Strossen, P.J. O’Rourke, Clay
Calvert, Robert Corn-Revere, Michael James Barton,
and Penn & Teller, in support of FDRLST Media, LLC
Corbin K. Barthold
James Dunstan
Berin Szóka
TechFreedom
110 Maryland Avenue, NE
Suite 205
Washington, DC 20002
Counsel for Amicus TechFreedom, in support of
FDRLST Media, LLC
Alan Gura
Owen Yeates
Institute for Free Speech
1150 Connecticut Avenue, NW
Suite 801
Washington, DC 20036
Counsel for Amicus Institute for Free Speech, in
support of FDRLST Media, LLC
3
Jonathan S. Goldstein
Shawn M. Rodgers
Goldstein Law Partners, LLC
11 Church Road
Hatfield, PA 19440
Counsel for Amicus National Federation of
Independent Business Small Business Legal Center, in
support of FDRLST Media, LLC
Ethan W. Blevins
J. David Breemer
Daniel M. Ortner
Pacific Legal Foundation
555 Capitol Mall
Suite 1290
Sacramento, CA 95814
Counsel for Amicus Pacific Legal Foundation, in
support of FDRLST Media, LLC
Peter Sung Ohr
Ruth E. Burdick
Iva Y. Choe
David Habenstreit
Micah P.S. Jost [Argued]
Gregory P. Lauro
Kira D. Vol
National Labor Relations Board
1015 Half Street, SE
Washington, DC 20003
Counsel for National Labor Relations Board
4
___________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
FDRLST Media, LLC (Employer) petitions for review
of an order of the National Labor Relations Board finding that
a supervisor’s message posted on Twitter was an unfair labor
practice. The Board cross-petitions for enforcement. Because
the Board’s finding is not supported by substantial evidence,
we will grant the petition for review, set aside the Board’s
order, and deny its petition for enforcement.
I
The Employer 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.” AR 68. 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
5
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)
and listed an Illinois address for the Employer, even though it
is a Delaware limited liability corporation with a Washington,
D.C. office.
Based on the charge, the Director of the NLRB’s New
York Region issued an unfair labor practice complaint against
the Employer. The complaint alleged that Domenech’s tweet
“threatened employees with reprisals and implicitly threatened
employees with loss of their jobs if they formed or supported a
union.” AR 44. The Employer moved to dismiss the complaint
for lack of subject matter jurisdiction, lack of personal
jurisdiction, and improper venue. While observing that its
“case could conceivably be transferred to” the Board’s
Baltimore Region, the Employer “t[ook] no position . . . on the
propriety of the complaint being transferred.” AR 183. The
Board denied the motion.
At a February 2020 hearing before a regional
administrative law judge (ALJ) in New York City, the
Employer entered what it described as a “special appearance”
so it could object to personal jurisdiction. AR 6. The ALJ
declined to revisit the Board’s jurisdictional ruling and heard
arguments on the complaint’s merits. The Board’s regional
counsel presented his case without calling any witnesses and
rejected the notion that Domenech’s tweet would be
understood as a joke. Instead, he pointed to The Federalist’s
6
editorial content as expressing Domenech’s own “anti-union”
stance, AR 14, and argued that a reasonable reader could
interpret the tweet only as a threat against employee
unionization.
The Employer denied the allegation. Citing concerns
that calling witnesses would waive its jurisdictional objection,
the Employer submitted affidavits from Domenech and two of
the six employees he supervised. Domenech’s affidavit
explained that he intended the tweet as satire, expressing his
“personal viewpoint on a contemporary topic of general
interest.” AR 151. The two employees averred that they viewed
the tweet as a funny, satirical expression and did not perceive
it to threaten any protected workplace activity. The ALJ
admitted the affidavits into evidence over the regional
counsel’s objections.
The ALJ concluded that the tweet violated Section
8(a)(1) of the NLRA. See FDRLST Media, LLC & Joel
Fleming, 370 N.L.R.B. No. 49, at 5–6 (Nov. 24, 2020).
Observing that “salt mine” was an idiom “most often used to
refer to tedious and laborious work,” the ALJ determined that
“a reasonable interpretation of the expression meant that
working conditions would worsen or employee benefits would
be jeopardized if employees attempted to unionize.” Id. at 5.
Concluding that the opening “FYI @fdrlst” “clearly directed
[the tweet] to the employees of FDRLST Media and not to the
general public,” the ALJ found that the tweet was “an obvious
threat,” which, in “the totality of the circumstances . . . had no
other purpose except to threaten the FDRLST Media
employees with unspecified reprisal.” Id.
The ALJ gave little weight to the employee affidavits
and rejected Domenech’s claim that his tweet was satire, since
7
“threats allegedly made in a joking manner [still] violate the”
Act. Id. The ALJ also found the tweet’s timing—which came
on the heels of the Vox Media walkout—to be “significant,”
because it expressed Domenech’s displeasure with the actions
of unionized Vox employees. Id.
The Board affirmed the ALJ’s decision and order with
several modifications. Id. at 1. In adopting the ALJ’s
conclusion that the tweet was a prohibited threat, the Board
disclaimed any reliance on The Federalist’s “anti-union”
editorials or the tweet’s temporal proximity to the Vox Media
walkout, since there was no record evidence that FDRLST
Media employees were aware of either. The Board also
concluded that the ALJ erred in admitting the affidavits
without establishing that Domenech and the two employees
were unavailable to testify. But the Board found that error
harmless, stating that employer intent and subjective employee
perception were “irrelevant” to its inquiry. Id. at 1 n.3. In
addition to entering the cease-and-desist order recommended
by the ALJ, the Board ordered the Company to direct
Domenech to delete his tweet.
The Employer petitioned for review of the Board’s
decision and order; the Board cross-petitioned for
enforcement.1
1
Because FDRLST Media is a Delaware corporation, we have
jurisdiction over the petition for review and cross-petition for
enforcement under 29 U.S.C. §§ 160(f) and 160(e),
respectively.
8
II
The Employer first argues that the Board lacks authority
to issue a complaint based on a charge filed by a person who
was not “aggrieved” by the alleged unfair labor practice. We
disagree. Controlling precedent and the plain language of the
Act affirm that the Board acted within its statutory authority
when it issued a complaint based on Fleming’s charge.
A
The NLRA empowers the Board “to prevent any person
from engaging in any unfair labor practice.” 29 U.S.C.
§ 160(a). To that end, the Act grants the Board broad authority
to issue unfair labor practice complaints, conduct hearings,
subpoena witnesses, make findings, and order remedial
actions. Id. §§ 160(b)–(c), 161.
The first sentence of Section 10(b) of the Act explains
the circumstances under which the Board can issue an unfair
labor practice complaint. As originally enacted in 1935, that
sentence reads:
Whenever it is charged that any person has
engaged in or is engaging in any such unfair
labor practice, the Board, or any agent or
agency designated by the Board for such
purposes, shall have power to issue and cause
to be served upon such person a complaint
stating the charges in that respect, and
containing a notice of hearing before the
Board or a member thereof, or before a
designated agent or agency, at a place therein
9
fixed, not less than five days after the serving
of said complaint.
NLRA, ch. 372, § 10(b), 49 Stat. 449, 453 (1935) (codified as
amended at 29 U.S.C. § 160(b)). In 1947, Congress amended
the statute to its present form, adding this proviso to the end of
Section 10(b)’s first sentence:
Provided, That no complaint shall issue based
upon any unfair labor practice occurring more
than six months prior to the filing of the
charge with the Board and the service of a
copy thereof upon the person against whom
such charge is made, unless the person
aggrieved thereby was prevented from filing
such charge by reason of service in the armed
forces, in which event the six-month period
shall be computed from the day of his
discharge.
Labor Mgmt. Relations Act, ch. 120, sec. 101, § 10(b), 61 Stat.
136, 146 (1947).
The opening phrase of Section 10(b)—“[w]henever it is
charged”—says nothing about who may file a charge. Since its
enactment, the Board has interpreted the Act to permit “[a]ny
person” to file a charge. 29 C.F.R. § 102.9 (“Any person may
file a charge alleging that any person has engaged in or is
engaging in any unfair labor practice affecting commerce.”);
see Gen. Furniture Mfg. Co., 26 N.L.R.B. 74, 76 n.3 (1940)
(“The Board has provided in its Rules and Regulations that ‘a
charge that any person has engaged in . . . unfair labor practices
. . . may be made by any person or labor organization.’”).
According to the Board, the charge’s “function” is to call
10
attention “to the fact that certain unfair labor practices are
alleged to have been committed. A charge is merely the means
whereby action on the part of the Board is instituted and is not
a formal pleading filed by a party to the proceeding.” Gen.
Furniture Mfg., 26 N.L.R.B. at 76 n.3.
B
The Employer contends the Board’s “any person” rule
violates Section 10(b). But that contention is foreclosed by our
caselaw. “This court previously has upheld the validity of the
Board’s [‘any person’] rule.” NLRB v. Local No. 42,
International Association of Heat & Frost Insulators, 469 F.2d
163, 165 (3d Cir. 1972) (per curiam) (citing NLRB v. Television
& Radio Broadcast Studio Employees, Local 804, 315 F.2d
398 (3d Cir. 1963)). In doing so, we rejected the very same
argument the Employer makes here—namely, that “the Board
rule which grants standing to ‘any party’ exceeds the statutory
grant and is invalid” because “the Act grants standing only to
an ‘aggrieved party.’” Id.
We first affirmed the validity of the Board’s rule nearly
sixty years ago in Television & Radio Broadcast Studio
Employees, Local 804, 315 F.2d at 400–01. In that case, we
concluded the Board had authority to issue a complaint against
a union based on a charge filed by a company, even though the
company’s employees—not the company, itself—were
harmed by the union’s alleged unfair practice. Id. at 401.
In doing so, we cited the Supreme Court’s interpretation
of Section 10(b) in NLRB v. Indiana & Michigan Electric Co.,
318 U.S. 9, 17–18 (1943). Television & Radio Broadcast
Studio Employees, Local 804, 315 F.2d at 401. The Supreme
Court decided Indiana & Michigan Electric within a decade
11
after the Act’s passage and rejected a challenge to the Board’s
jurisdiction analogous to the one the Employer makes here.
318 U.S. at 17–18. In that case, an employer argued that the
Board lacked authority to consider a charge, allegedly filed in
bad faith, by a union that had engaged in misconduct. Id. at 16–
17. The Court’s reasoning tracked the Board’s justification for
its “any person” rule, observing that “[t]he charge is not proof”
and “does not even serve the purpose of a pleading.” Id. at 18.
Because the charge “merely sets in motion the machinery of an
inquiry,” the Court concluded that even the “[d]ubious
character, evil or unlawful motives, or bad faith” of a charging
party “cannot deprive the Board of its jurisdiction to conduct
the inquiry.” Id.
In explaining its decision, the Supreme Court described
the scope of Section 10(b), which did not yet include the time-
limitation proviso. The Court observed that the Act “requires a
charge before the Board may issue a complaint, but omits any
requirement that the charge be filed by a labor organization or
an employee.” Id. at 17 (emphasis added). The Court described
the charging party as an “informer” and cited legislative history
indicating that even a “stranger to the labor contract” could file
a charge, since “it was often not prudent for the workman
himself to make a complaint against his employer.” Id. at 17–
18 (citing Hearings on S. 1958 Before the S. Comm. on Educ.
and Labor, 74th Cong. 430–32 (1935)).
Four years after the Court decided Indiana & Michigan
Electric, Congress added the time-limitation for filing charges,
with its “person aggrieved” exception for those serving in the
armed forces. Labor Mgmt. Relations Act § 10(b). But
Congress left Section 10(b)’s original charging clause
undisturbed. Since then, the Court has repeatedly given effect
to the Board’s “any person” rule, affirming the Board’s
12
authority to act on charges filed by parties outside the labor
relationship. See, e.g., Plumbers, Steamfitters, Refrigeration,
Petroleum Fitters, & Apprentices of Local 298 v. Cnty. of
Door, 359 U.S. 354, 358 (1959) (Board had authority to
consider charge filed by county against union that picketed its
contractor’s use of non-union labor); Local Union No. 25 of
International Brotherhood of Teamsters v. N.Y., New Haven,
& Hartford R.R. Co., 350 U.S. 155, 160–61 (1956) (Board had
authority to consider charge filed by railroad against truckers’
union that interfered with its trailer transport). Critically for our
purposes, the Court has done so without inquiring whether the
charging party was actually aggrieved.
Over the last seventy years, we and our sister courts
have faithfully followed the Supreme Court’s example and
upheld the Board’s authority to act on charges filed by “any
person,” without requiring a charging party to show how it was
aggrieved by the alleged unfair labor practice. See, e.g., Local
No. 42, International Association of Heat & Frost Insulators,
469 F.2d at 164–65 (rejecting union’s claim that only an
“aggrieved party” has standing to file charge under the Act);
Elec. Contractors, Inc. v. NLRB, 245 F.3d 109, 121 (2d Cir.
2001) (“[T]he Supreme Court long ago made clear that the
identity of the charging party is irrelevant to a determination of
whether the Board has jurisdiction.”); S. Furniture Mfg. Co. v.
NLRB, 194 F.2d 59, 61 (5th Cir. 1952) (“There is no
requirement that [a charge] be filed by a labor organization, by
the discharged employee, or even by any employee. Strangers
to the labor contract are permitted to make the charge.”); NLRB
v. Gen. Shoe Corp., 192 F.2d 504, 505 (6th Cir. 1951)
(concluding that whether union filing charge had any members
employed by company was “immaterial” to Board’s
jurisdiction over the charge); NLRB v. Chauffeurs, Teamsters
13
& Helpers Local 364, 274 F.2d 19, 25 (7th Cir. 1960) (“The
Act does not place such restrictions on the charging party, but
provides, Section 10(b), ‘Whenever it is charged,’ the Board
shall have power to investigate, etc. Anyone may file a
charge.”); NLRB v. Stationary Engineers, Local 39, 746 F.2d
530, 532 n.1 (9th Cir. 1984) (stating that an employee could
file a charge, even though he was not actually fined by the
union); Raymond Interior Sys., Inc. v. NLRB, 812 F.3d 168,
178 (D.C. Cir. 2016) (“Any person may file an unfair labor
practice charge with the Board.”). The Employer’s
interpretation of Section 10(b), which would require a person
filing a charge to prove he was aggrieved, contravenes this
chorus of precedent.2
2
Our concurring colleague would jettison controlling
precedent interpreting Section 10(b) in favor of his own textual
analysis. But only the Supreme Court has the power to overturn
Indiana & Michigan Electric. See Agostini v. Felton, 521 U.S.
203, 237 (1997). And the fact that Indiana & Michigan Electric
was decided before the statute was amended does not carry the
day because our Court applied that same reasoning in
Television & Radio Broadcast Studio Employees, Local 804
and Local No. 42, International Association of Heat & Frost
Insulators, both of which were decided well after the statute
was amended. In addition, the concurrence’s reliance on
dissenting and concurring opinions from courts outside the
Third Circuit is as telling as it is unavailing. Regardless of the
persuasive force of such opinions, we are bound by our own
precedents unless and until this Court, sitting en banc, alters
them. Third Cir. I.O.P. 9.1; see Joyce v. Maersk Line, Ltd., 876
F.3d 502, 508 (3d Cir. 2017).
14
Moreover, the Employer’s attempted restriction on the
Board’s authority is inconsistent with how the Act operates. As
the Supreme Court explained in Indiana & Michigan Electric,
the charge “merely sets in motion the machinery of an inquiry.”
318 U.S. at 18. The charging party serves as an “informer” and
need not demonstrate any personal injury to file a charge. Id.
Like a witness to a crime who can file a police report, a
“stranger to the labor contract” who witnesses an unfair labor
practice can file a charge with the Board. Id. at 17–18. The
Board thus had authority to act on Fleming’s charge, even if
Fleming was not personally aggrieved by Domenech’s tweet.
Contrary to the Employer’s assertion, our decision to
affirm the Board’s “any person” rule does not “distort[] the
legislative scheme” by “[a]llowing any random person to
subject a company to a government-directed and funded
unfair-labor-practice action.” FDRLST Media Br. 17. Not
every filed charge leads to an unfair labor practice complaint.
“The Board has wide discretion in the issue of complaints. . . .
It is not required by the statute to move on every charge; it is
merely enabled to do so.” Ind. & Mich. Elec. Co., 318 U.S. at
18. Where a charge is baseless or made in bad faith, the Board
can—and should—refrain from issuing, or dismiss, a
complaint. See id. at 18–19.
C
Against decades of contrary precedent, the Employer
argues that the text of Section 10(b) reveals Congress’s intent
to allow only “persons aggrieved” by the alleged unfair labor
practice to file charges. See 29 U.S.C. § 160(b). “[E]very
exercise of statutory interpretation begins with an examination
of the plain language of the statute.” Register v. PNC Fin.
Servs. Grp., Inc., 477 F.3d 56, 67 (3d Cir. 2007) (quoting
15
Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 2001)).
And “[t]he words of a statute are not to be lightly jettisoned by
courts looking to impose their own logic on a statutory
scheme.” In re Visteon Corp., 612 F.3d 210, 219 (3d Cir.
2010). While Congress could have imposed the limitation the
Employer suggests, the statute’s plain language and structure
show that it did not do so.
The first clause of Section 10(b) establishes a general
charging rule: the Board may issue a complaint “[w]henever it
is charged that any person has engaged in any . . . unfair labor
practice.” 29 U.S.C. § 160(b). This clause, written in the
passive voice, places no restrictions on who may file an
actionable charge.
The subsequent proviso of Section 10(b) imposes a time
limitation on that charging rule: the Board can issue a
complaint only if the alleged unfair labor practice occurred no
“more than six months prior to the filing of the charge with the
Board.” Id. The proviso includes a narrow exception to that
time limitation, granting an extension if the “person aggrieved”
by the alleged unfair labor practice could not timely file a
charge because of military service. Id. Based on the statute’s
plain language and structure, the most natural reading is that
the “person aggrieved” limitation applies only to the proviso’s
time-limitation exception, not to the general charging rule
(which places no restrictions on the charging party). Neither
the Employer nor our concurring colleague persuasively
explains why a restriction contained in an exception to the
proviso’s time-limitation should be read to apply to the general
rule.
The natural reading of the statute makes practical sense,
as well. Placing a time limitation on filing an actionable
16
charge—with a narrow exception for members of the armed
services who were subject to an unfair labor practice—
represents a reasonable trade-off between achieving “repose
and stability in labor relations” and acknowledging the
difficulty of reporting a charge while on military duty, Board
Br. 41, which was a particularly relevant concern when the
statute was amended in 1947, right after World War II.3
The Employer’s arguments based on judicial doctrines
of standing and zone-of-interests are no more persuasive. “The
Board is not a court; it is not even a labor court; it is an
administrative agency charged by Congress with the
enforcement and administration of the federal labor laws.”
Shepard v. NLRB, 459 U.S. 344, 351 (1983). “[I]t is well
settled that there are wide differences between administrative
agencies and courts.” Id. (citations omitted). Agencies “are not
constrained by Article III of the Constitution; nor are they
governed by judicially-created standing doctrines restricting
access to the federal courts,” including the zone-of-interests
test. Envirocare of Utah, Inc. v. Nuclear Regul. Comm’n, 194
F.3d 72, 74–75 (D.C. Cir. 1999). So long as the Board acts
within its statutory authority, standing analysis is irrelevant to
the question of who can file an actionable charge. See id. at 75.
3
Even if we could disregard binding caselaw and thought
Section 10(b) was silent as to who can file an unfair labor
practice charge, the Employer’s interpretation would not
prevail because, as we explained, the Board’s “any person”
rule is a permissible construction of the Act. See Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–
44 (1984).
17
* * *
The NLRA is remarkably broad in scope and power. Its
jurisdictional provision, written in the passive voice, places no
limits on who may file a charge. The Supreme Court has
recognized—and has done nothing to cabin—this capacious
authority. So the circuit courts of appeals (including this one)
have consistently upheld the Board’s rule that “any person”
may precipitate an unfair labor practice investigation.
Unfortunate as it may be, the Act as written and interpreted
empowers a politically-motivated busybody as much as a
concerned employee or civic-minded whistleblower.
We reaffirm today that Section 10(b) places no
limitations on who may file an actionable unfair labor practice
charge. So the Board had statutory authority to address
Fleming’s charge.
III
The Employer also argues that the Board’s New York
Region lacked personal jurisdiction over the company and that
its New York proceedings violated due process. We disagree
with both arguments.
A
“[T]here is a significant difference between the concept
of ‘jurisdiction’ in the judicial context and in the administrative
context.” 1621 Route 22 W. Operating Co. v. NLRB, 825 F.3d
128, 140 (3d Cir. 2016) (citing City of Arlington v. FCC, 569
U.S. 290, 296–97 (2013)). “When agencies are charged with
administering congressional statutes, ‘[b]oth their power to act
and how they are to act is authoritatively prescribed by
18
Congress.’” Id. (alteration in original) (quoting City of
Arlington, 569 U.S. at 297).
We thus determine the scope of the Board’s jurisdiction
by interpreting the statute, not by applying the familiar
minimum-contacts test that governs an Article III court’s
personal jurisdiction. Here, “Congress . . . vest[ed] in [the
Board] nationwide jurisdiction to adjudicate controversies
within the Act’s purview.” Local 926, International Union of
Operating Engineers v. Jones, 460 U.S. 669, 681 (1983). The
Board’s organization into regional offices for administrative
convenience does not divest any individual office of the
Board’s nationwide authority. See, e.g., 29 U.S.C. § 155 (“The
Board may, by . . . such agents or agencies as it may designate,
prosecute any inquiry necessary to its functions in any part of
the United States.” (emphasis added)); 29 U.S.C. § 161(1)
(authorizing the Board or any designee to compel “attendance
of witnesses and the production of . . . evidence . . . from any
place in the United States or any Territory or possession
thereof, at any designated place of hearing” (emphasis
added)).
The Act grants the Board jurisdiction over entities
whose operations have at least a de minimis effect on interstate
commerce. 29 U.S.C. § 160(a); NLRB v. Fainblatt, 306 U.S.
601, 607 (1939). In addition, the Board has adopted
discretionary standards, stating it will exercise jurisdiction
only over “those cases, which, in its opinion, have a substantial
effect on commerce” based on the volume and character of
business conducted. Off. of the Gen. Couns., NLRB, An
Outline of Law and Procedure in Representation Cases § 1-
100 (2017); see Off. of the Gen. Couns., NLRB, National
Labor Relations Board Casehandling Manual for Unfair
Labor Practice Proceedings § 11700 (2021). The Employer
19
stipulated that it meets the Board’s statutory and discretionary
jurisdictional standards. So the Board, including its New York
Region, has jurisdiction over the Employer for unfair labor
practice complaints.4
B
The Employer argues that even if the Board had
jurisdiction, the adjudication in the New York Region violated
its right to due process of law. Again, we are unpersuaded.
The Employer is correct that regional proceedings must
comport with constitutional requirements, including due
process. Vasquez v. Van Lindt, 724 F.2d 321, 327 (2d Cir.
1983) (citing Gibson v. Berryhill, 411 U.S. 564, 579 (1973))
(Due process “applies to all adjudicatory proceedings before[]
. . . administrative agencies.”). While general “principles of
due process require an agency to follow its own regulations,”
Marshall v. Lansing, 839 F.2d 933, 943 (3d Cir. 1988)
(citations omitted), not every regulatory breach is a
4
We also reject the Employer’s argument that, because
Domenech’s tweet was posted from his personal Twitter
account, it cannot be attributed to the Employer. Domenech
was the executive officer of the Employer and publisher of its
internet magazine. In those roles, he met the statutory
requirements for a supervisor and agent and sometimes used
his personal Twitter account for company purposes—including
to promote the Employer’s media content. The Employer can
thus be held responsible under the Act for Domenech’s tweets
from his personal account. See 29 U.S.C. § 152(1), (13); NLRB
v. Schroeder, 726 F.2d 967, 970–71 (3d Cir. 1984) (attribution
in the labor context is based on traditional agency principles).
20
constitutional violation. When an agency violates a rule that
does not “protect fundamental statutory or constitutional
rights,” the litigant must also show prejudice to make out a due
process claim. Leslie v. Att’y Gen., 611 F.3d 171, 178 (3d Cir.
2010); Chong v. INS, 264 F.3d 378, 389 (3d Cir. 2001).
Under Board regulations, “a charge must be filed with
the Regional Director for the Region in which the alleged
unfair labor practice has occurred or is occurring.” 29 C.F.R.
§ 102.10. The Board’s General Counsel, however, has broad
authority to transfer charges between Regions as “necessary to
effectuate the purposes of the Act or to avoid unnecessary costs
or delay,” id. § 102.33(a), and Regional Directors can, on their
“own motion or upon proper cause shown by any other party,”
change the hearing location, id. § 102.16(a).
It is unclear where the Employer’s alleged unfair labor
practice—an internet tweet—“occurred” for purposes of the
Board’s filing regulation. But even if the tweet occurred
outside the New York Region—so that Fleming’s filing
violated 29 C.F.R. § 102.10—the Employer has not shown that
its due process rights were violated by the New York
proceedings.
The Board’s charge-filing regulation, 29 C.F.R.
§ 102.10, does not “protect[] fundamental statutory or
constitutional rights.” See Leslie, 611 F.3d at 180. “[W]here a
charge should be filed is essentially a venue matter.” The
Earthgrains Co., 351 N.L.R.B. 733, 733 n.2 (2007) (citing
Allied Prods. Corp., 220 N.L.R.B. 732, 733 (1975)). And
venue is a matter of convenience; it does not implicate
fundamental constitutional rights. See 17 Moore’s Federal
Practice § 110.01 (Matthew Bender 3d ed.). Nor does the Act
provide a statutory right to venue. So the Employer must show
21
it was prejudiced by having to defend against the unfair labor
practice complaint in the New York Region to obtain relief on
due process grounds.
The Employer has not shown prejudice. It had notice of
the complaint’s allegations, agreed to the stipulated facts, and
had a full and fair opportunity to defend against the allegations
on the merits before the ALJ in the New York Region.
Therefore, any error by the Board or its regional office in
adjudicating the complaint in the New York Region did not
result in prejudice that would require reversal of the Board’s
decision. See, e.g., NLRB v. Ingredion Inc., 930 F.3d 509, 519
(D.C. Cir. 2019) (citation omitted) (finding no reason to
reverse the Board’s decision where the company “received a
‘full and fair opportunity to litigate the matter’” and failed to
identify any instance of prejudice).
Even more fundamentally, the Employer never
requested a transfer (as permitted by 29 C.F.R. § 102.33(a)) or
a relocation (as permitted by 29 C.F.R. § 102.16(a)). Instead,
the Employer expressly “t[ook] no position . . . on the propriety
of the complaint being transferred to” another Region and
pressed its argument for dismissal. AR 183. It may have been
preferable for the Board to have transferred the charge or
relocated the hearings to a Region with a connection to the
Employer, but absent any request for transfer or relocation
from the Employer, we cannot say that conducting the hearing
“in the Region where the charge originated,” in compliance
with Board rules, 29 C.F.R. § 101.10, was an abuse of
discretion, much less a deprivation of due process. See
Napleton 1050, Inc. v. NLRB, 976 F.3d 30, 39 (D.C. Cir. 2020).
22
IV
We turn finally to the merits of the case and consider
the Board’s conclusion that Domenech’s Tweet was an unfair
labor practice under Section 8(a)(1) of the NLRA. Reviewing
the record as a whole, we conclude that the Board’s
determination that a reasonable employee would view
Domenech’s Tweet as a threat is not supported by substantial
evidence. So we will set aside the Board’s finding of an unfair
labor practice.
We exercise plenary review over the Board’s legal
conclusions, deferring to its reasonable interpretations of the
Act. NLRB v. ImageFIRST Unif. Rental Serv., Inc., 910 F.3d
725, 732 (3d Cir. 2018). And we accept the Board’s factual
determinations if they are “supported by substantial evidence
on the record considered as a whole.” 29 U.S.C. § 160(e), (f);
see also ImageFIRST, 910 F.3d at 732. “Substantial evidence
[requires] more than a scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion,” including “whatever in the record fairly
detracts from [the evidence’s] weight.” Advanced Disposal
Servs. E., Inc. v. NLRB, 820 F.3d 592, 606 (3d Cir. 2016)
(quoting Tri-State Truck Serv., Inc. v. NLRB, 616 F.3d 65, 69
(3d Cir. 1980)). So long as this standard is met, “we will not
disturb the Board’s factual inferences, even if we would have
made a contrary determination.” Citizen’s Publ’g & Printing
Co. v. NLRB, 263 F.3d 224, 232 (3d Cir. 2001).
Section 8(a)(1) prohibits employers from engaging in
practices that “interfere with, restrain, or coerce employees in
the exercise” of their protected rights to organize, collectively
bargain, or engage in other union activity. 29 U.S.C.
§ 158(a)(1). An employer is not barred from communicating
23
his views on unions—even his anti-union views—to his
employees, but he cannot threaten employees with reprisals or
promise them benefits in relation to unionization. NLRB v.
Garry Mfg. Co., 630 F.2d 934, 938 (3d Cir. 1980) (citing NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969)); 29 U.S.C.
§ 158(c).
But what constitutes a prohibited “threat”? To qualify
as such, an employer’s statement must warn of adverse
consequences in a way that “would tend to coerce a reasonable
employee” not to exercise her labor rights. Garry Mfg. Co., 630
F.2d at 938. The test for coercion is objective: “the employer’s
intent is irrelevant and the proper inquiry is the impression of
a reasonable employee.” Allegheny Ludlum Corp. v. NLRB,
301 F.3d 167, 176 (3d Cir. 2002). Proof of actual coercion is
unnecessary; the tendency of an employer’s statement to
coerce a reasonable employee is sufficient to find an unfair
labor practice. Garry Mfg. Co., 630 F. at 938. The Board’s
General Counsel bears the burden of proving the statement’s
tendency to coerce. N. Cambria Fuel Co. v. NLRB, 645 F.2d
177, 182–83 (3d Cir. 1981).
The employer’s alleged threat is not viewed in a
vacuum, however. When considering an alleged unfair labor
practice, an employer’s conduct must be examined “in light of
all the existing circumstances.” Wheeling-Pittsburgh Steel
Corp. v. NLRB, 618 F.2d 1009, 1020 (3d Cir. 1980) (emphasis
added) (citations omitted); see also NLRB v. Va. Elec. & Power
Co., 314 U.S. 469, 479 (1941) (The Board’s finding of an
unfair labor practice must be based “upon the whole course of
conduct revealed by [the] record.”). Context is an important
part of language, and that’s especially true where, as in this
case, pure speech is at issue.
24
The ALJ found that Domenech’s tweet was “an obvious
threat” that “had no other purpose except to threaten the
FDRLST [Media] employees with unspecified reprisals.”
FDRLST Media, 370 N.L.R.B. at 5. The Board agreed. In
adopting the ALJ’s finding, the Board disclaimed any reliance
on the tweet’s timing or The Federalist’s editorial content,
leaving only the words of the tweet, devoid of any context, as
support. But the Board erred when it disregarded relevant
contextual evidence. ImageFIRST, 910 F.3d at 736 (citation
omitted). Even more problematic than the timing and editorial
content the Board ignored are the circumstances surrounding
the tweet that the Board and the ALJ never considered. Had the
Board considered the tweet’s full context, it could not have
concluded that a reasonable FDRLST Media employee would
view the tweet as a threat of reprisal.
For starters, FDRLST Media is a tiny media company.
Its six employees (not including Domenech) are writers and
editors. The tweet’s suggestion that these employees might be
sent “back” to work in a “salt mine” is farcical. The image
evoked—that of writers tapping away on laptops in dimly-lit
mineshafts alongside salt deposits and workers swinging
pickaxes—is as bizarre as it is comical. So from the words of
the tweet alone, we cannot conclude that a reasonable
FDRLST Media employee would view Domenech’s tweet as a
plausible threat of reprisal.
The ALJ rightly noted that the salt mine idiom “most
often . . . refer[s] to tedious and laborious work,” FDRLST
Media, 370 N.L.R.B. at 5, but the Board failed to realize that
“[t]hreatening statements are not usually made in bantering
terms” like these. NLRB v. Champion Labs., Inc., 99 F.3d 223,
229 (7th Cir. 1996) (citing NLRB v. Windemuller Elec., Inc.,
34 F.3d 384, 392 (6th Cir. 1994)). To conclude that
25
Domenech’s tweet is a “thinly veiled statement[] concerning
adverse consequences,” Garry Mfg. Co., 630 F.2d at 940,
requires some additional evidence of the tweet’s coercive
tendency. But the Board points to none.
The Supreme Court has instructed, “[a]ny assessment of
the precise scope of [impermissible] employer expression, of
course, must be made in the context of its labor relations
setting.” Gissel Packing Co., 395 U.S. at 617. Yet neither the
Board nor the ALJ discussed the labor environment at
FDRLST Media when Domenech posted his tweet.
Significantly, this Court has never affirmed a finding of an
unfair labor practice based on employer speech alone absent
any indicia of labor friction.5 And in this case, the Board points
5
We have found employer speech to be an unfair labor practice
in several cases where labor strife existed. See, e.g., Elec.
Prods. Div. of Midland-Ross Corp. v. NLRB, 617 F.2d 977,
984–85 (3d Cir. 1989) (company notified employees that it was
closing an unprofitable unionized plant shortly before a
pending union election); Garry Mfg. Co., 630 F.2d at 938–40
(leaflets and letters sent to employees during a union campaign
that implied adverse consequences if the union won election);
Hedstrom Co., 629 F.2d at 314–15 (plant manager’s coercive
questions to a striking employee); id. at 315 (company
president’s comments to an employee “troublemaker” on the
day workers returned from a strike, implying rules would be
enforced more stringently against the employee); id. at 316
(supervisor’s comment to striking employee that she would not
have a job if she sought to return to the plant); Stein Seal Co.
v. NLRB, 605 F.2d 703, 705–06 (3d Cir. 1979) (statements by
company founder during a speech to employees that implied
26
to no history of labor strife, no evidence of antagonism, nor
even a single example of labor-management tension. The
Board cited only one brief tweet, posted from a supervisor’s
personal Twitter account. The record contains no sign—
indeed, no inkling—of any circumstance at FDRLST Media
that leads us to conclude that a reasonable employee would
interpret Domenech’s tweet as a veiled threat.
We also think it significant that The Federalist
“publishes commentary on a wide variety of contemporary
newsworthy and controversial topics,” including matters
involving politics and labor relations, AR 69, and that
Domenech used his personal Twitter account to promote and
discuss the magazine’s commentary. 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
retaliation if union won election); NLRB v. Triangle Publ’ns,
Inc., 500 F.2d 597, 598 (3d Cir. 1974) (supervisor’s questions
to employee who was “collecting the names and addresses of
his co-workers so that a union could get in touch with them”);
Mon River Towing, Inc. v. NLRB, 421 F.2d 1, 9–11 (3d Cir.
1969) (company president’s remarks during union contract
negotiations that implied company may close if contract was
not ratified).
27
controversial topic[]” than as a threat that implicated her status
with the Employer.6 See AR 69.
The Board also went too far when it opined that
employees’ “subjective interpretations of [an employer’s
conduct] are irrelevant to determining whether” the employer
committed an unfair labor practice. FDRLST Media, 370
N.L.R.B. at 1 n.3. We have held that employees’ subjective
impressions are not dispositive; not that they are irrelevant.7
See, e.g., Hedstrom Co., 629 F.2d at 316–17 (affirming the
Board’s finding that a supervisor’s statement was coercive,
despite employee testimony suggesting otherwise, because the
6
The Board did not consider the timing of the tweet because it
had “no evidence that employees who viewed the tweet were
aware of . . . the walkout.” FDRLST Media, 370 N.L.R.B. at 1
n.4. But the Board’s regional counsel could have solicited this
evidence by calling any FDRLST Media employee to testify.
The Board cannot avoid the reasonable inference that
employees of a media company that focuses on “contemporary
newsworthy and controversial topics,” AR 69, would be aware
of a newsworthy and controversial event involving another
internet media company simply because the regional counsel
chose not to inquire.
7
The Board’s cited authority, American Freightways Co., 124
N.L.R.B. 146, 147 (1959), is consistent with our caselaw. See
FDRLST Media, 370 N.L.R.B. at 1. American Freightways
states that the test for an unfair labor practice “does not turn on
the employer’s motive or on whether the coercion succeeded
or failed,” id., which is the same as saying that neither
employer motive nor proof (or absence) of actual coercion is
dispositive.
28
record supported both interpretations). We have acknowledged
that subjective impressions can sometimes be helpful to
determine how a reasonable employee would objectively view
her employer’s conduct. See, e.g., Garry Mfg. Co., 630 F.2d at
941 & n.6 (considering employee testimony that removal of
plant machinery before a union election caused “panic and fear
among the employees” to support a finding that the removal
was reasonably “understood as a threat of reprisal should the
Union win the election”).
Employees’ subjective impressions are especially
helpful where, as here, the employer claims his statement was
made in jest. Humor is subjective. What is funny to a fisherman
may be lost on a farmer. A quip about New England winters is
unlikely to get a laugh in Alaska. The propensity for jokes to
fall flat for want of context or audience understanding has
given rise to idioms like “I guess you had to be there” and “too
soon?” Excluding context and viewing a statement in isolation,
as the Board did here, could cause one to conclude that “break
a leg” is always a threat. But when expressed to an actor,
singer, dancer, or athlete, that phrase can reasonably be
interpreted to mean only “good luck.” Break a leg, McGraw-
Hill’s American Idioms Dictionary (Richard A. Spears ed., 4th
ed. 2000). Consistent with these commonsensical
observations, some of our sister courts have considered
employees’ subjective responses when evaluating whether
employer speech or expressive conduct was reasonably viewed
as a joke or a threat.
For example, in Federal-Mogul Corp. v. NLRB, the
Board concluded that when a supervisor burned a union
campaign card while bantering with employees, he interfered
with a union election in violation of Section 8(a)(1). 566 F.2d
1245, 1253 (5th Cir. 1978). The Fifth Circuit disagreed. Id.
29
Observing that the employees and supervisor were engaged in
“horseplay” that involved “teasing” and citing an employee’s
testimony that he had “‘snickered’ and ‘laughed’ when the
incident occurred,” the Court concluded, “[i]t is obvious that
the entire incident was a joke.” Id. “The incident is not to be
taken out of context,” the Fifth Circuit rightly cautioned, and
“must be considered along with all of the facts and
circumstances existing at the time.” Id.
A Sixth Circuit case, NLRB v. Windemuller Elec., Inc.,
is also instructive. There, unionized electrical workers had
flooded a non-union electrical contractor with applications,
and though the contractor processed the applications, it hired
none of the union applicants. 34 F.3d at 386. At a company
breakfast three months later, the contractor’s vice president
told employees that the company was looking to hire. Id. In
response to an employee question, the vice president admitted,
“yeah, [we’ve] had a lot of applications from the union,” which
prompted laughter from the employees. Id. at 387. A branch
manager then reiterated that the company needed more
electricians. Id. The ALJ concluded that the “plain
implication” of the vice president’s remark was that he would
not hire workers interested in unionization—a threat that
violated Section 8(a)(1). Id. at 392. The Board agreed. Id. at
385.
The Sixth Circuit disagreed, holding that the Board’s
finding of a threat lacked substantial evidence. Id. at 393.
Though the vice president’s remark “may not have been
politically correct,” “[i]t got a laugh” from employees. Id. at
392. As the court sensibly noted, “people who are being
threatened do not usually find it amusing.” Id. The Sixth
Circuit also found the “silence of the record” to be
30
“significant,” noting that “not a single” worker testified to
feeling threatened or coerced. Id. at 393.
The Board discounts Federal-Mogul and Windemuller
by noting that neither case “holds that threats of retaliation are
lawful as long as someone laughs.” Board Br. 17. The Board is
right to that extent. But the Fifth and Sixth Circuit analyses also
show that employees’ subjective responses can be relevant to
determining whether a reasonable employee—who is familiar
with her employer and the context of a remark—would tend to
be coerced. This is particularly true where, as here, a third party
with no connection to the employer or the employees—and
who lacks knowledge of relevant context—files a charge
against an employer with no history of labor problems.
The record contains no evidence that any FDRLST
Media employee perceived Domenech’s tweet as a threat, and
the Board failed to even acknowledge that noteworthy gap in
the record.8 Because the charge was filed by an unrelated third-
party, the alleged unfair labor practice was pure speech, and
the meaning of the employer’s statement is open to question,
8
The Board acted within its discretion when it excluded from
consideration the affidavits offered by the Employer. See
NLRB v. Domsey Trading Corp., 636 F.3d 33, 37 (2d Cir.
2011); 29 C.F.R. § 101.10(a). But the exclusion was also
expedient, since the two employee affidavits contradict the
Board’s conclusion: the employees stated that they did not
view Domenech’s tweet as a threat, but as a “funny,”
“obviously sarcastic,” “pithy,” and “satirical” expression of
Domenech’s personal views. AR 156, 158.
31
the “silence of the record” is significant and should have been
considered, see Windemuller Elec., Inc., 34 F.3d at 393.
Finally, the mode of communication also weighs
against finding that Domenech’s tweet would tend to coerce a
reasonable FDRLST Media employee. Domenech posted his
message on Twitter, a public platform that limits tweets to 280
characters, which encourages users to express opinions in
exaggerated or sarcastic terms. Domenech sent his message to
the timelines of his more than eighty thousand Twitter
followers, not to the email inboxes of his FDRLST Media
employees. And he made the tweet available to the public—a
peculiar choice indeed for a threat supposedly directed at six
employees. These characteristics of Domenech’s tweet would
give a reasonable FDRLST Media employee even more reason
to read the tweet as mocking a rival internet media company or
commenting on a timely socio-political issue than as
threatening reprisal.
* * *
We “recognize the Board’s competence in the first
instance to judge the impact of utterances made in the context
of the employer-employee relationship.” Gissel Packing Co.,
395 U.S. at 620. But in this case, the Board’s failure to consider
the tweet’s context dooms its finding of a veritable threat.
Considered in context, the tweet was not an unfair labor
practice. So we will set aside the Board’s order to the contrary.
V
Our conclusion is buttressed by the fact that the alleged
unfair labor practice consists of the Employer’s words alone.
In protecting employees’ statutory labor rights, neither we, nor
32
the Board, can violate an employer’s right to free speech under
the First Amendment. Gissel Packing, 395 U.S. at 617.
The Act distinguishes prohibited employer conduct
from protected employer speech in Section 8(c), which
provides that
[t]he expressing of any views, argument, or
opinion, or the dissemination thereof, whether
in written, printed, graphic, or visual form,
shall not constitute or be evidence of an unfair
labor practice under any of the provisions of
this subchapter [29 U.S.C. §§ 151–169], if
such expression contains no threat of reprisal
or force or promise of benefit.
29 U.S.C. § 158(c); see Gissel Packing, 395 U.S. at 617
(“[Section] 8(c) . . . implements the First Amendment.”).
Section 8(c) “manifest[s] a congressional intent to encourage
free debate on issues dividing labor and management,”
Chamber of Com. of the U.S. v. Brown, 554 U.S. 60, 67 (2008)
(cleaned up), and the Act favors “uninhibited, robust, and
wide-open debate in labor disputes, stressing that freewheeling
use of the written and spoken word . . . has been expressly
fostered by Congress and approved by the [Board].” Id. at 68
(cleaned up). Section 8(c) reinforces the “open marketplace”
created by the First Amendment, “in which differing ideas
about political, economic, and social issues can compete freely
for public acceptance without improper government
interference.” Knox v. Service Employees International Union,
Local 1000, 567 U.S. 298, 309 (2012).
To give effect to Congress’s intent and avoid conflict
with the First Amendment, we must construe the Act narrowly
33
when applied to pure speech, recognizing that only statements
that constitute a true threat to an employee’s exercise of her
labor rights are prohibited.9 Cf. Graham Architectural Prods.
Corp. v. NLRB, 697 F.2d 534, 541 (3d Cir. 1983) (“What the
Act proscribes is only those instances of true “interrogation”
which tend to interfere with the employees’ right to
organize.”). To interpret the Act otherwise risks expanding
Section 8(a)(1)’s prohibition beyond its constitutionally
permissible bounds. See 29 U.S.C. § 158(a)(1).
We thus must be “vigilant to see that the [Board] does
not read elements of interference, restraint or coercion into
speech that is in fact nonthreatening and that would not strike
a reasonable person as threatening.” Windemuller, 34 F.3d at
392. We need not determine here the precise contours of
prohibited “threat[s] of reprisal or force.” 29 U.S.C. § 158(c).
We merely observe that the Board must be careful to
distinguish “[w]hat is a threat . . . from what is constitutionally
protected speech.” Watts v. United States, 394 U.S. 705, 707
(1969) (per curiam). At the very least, any finding of a
9
The Supreme Court has made clear that speech restrictions
based on the speaker’s identity, Citizens United v. FEC, 558
U.S. 310, 340 (2010), the message’s content, Reed v. Town of
Gilbert, 576 U.S. 155, 163 (2015) (citations omitted), or the
speaker’s viewpoint, see R.A.V. v. City of St. Paul, 505 U.S.
377, 391–92, 395–96 (1992) must be narrowly-tailored to
avoid offending the First Amendment. Section 8 of the Act
arguably discriminates based on all these categories, placing
limits on speech by employers (but not employees) related to
labor organization (but not other topics) that would interfere,
restrain, or coerce (but not enable) employees’ exercise of their
statutory labor rights. See 29 U.S.C. § 158(a).
34
prohibited threat must be made by examining the employer’s
statement in its full context, with due consideration of the
audience and accompanying circumstances. Cf. id. at 707–08
(relying on the “context, . . . expressly conditional nature of the
statement and the reaction of the listeners,” who laughed, in
concluding the petitioner’s statement was “political hyperbole”
and not a criminally prohibited threat). The Board’s
acontextual analysis of Domenech’s tweet falls far short of this
standard.
* * *
The National Labor Relations Act grants the National
Labor Relations Board vast authority to investigate charges of
unfair labor practices, even when charges are filed by parties
who are not personally aggrieved by the alleged practice. But
the Board’s authority to find an unfair labor practice is not
unlimited. Here, the 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. We will accordingly grant FDRLST
Media’s petition, set aside the Board’s order, and deny the
Board’s petition for enforcement.
35
MATEY, Circuit Judge, concurring in the judgment.
I agree with the majority’s thoughtful analysis of the
threats to dialogue and debate, not to mention farce, in the
National Labor Relations Board’s decision. In its haste to join
the tedious chorus of disapproval against whatever disfavored
view has most recently appeared somewhere on the internet,
the Board shelved serious supervision of the protections for
America’s employees. Rightly, the majority concludes the
Board’s efforts to restrict speech cannot be squared with what
“the Founders recognized [as] an inalienable natural right to
express one’s thoughts, sometimes described as the ‘freedom
of opinion.’” Jud Campbell, Natural Rights and the First
Amendment, 127 Yale L.J. 246, 267 (2017).
But I see an earlier problem with the Board’s action. As
best understood, the National Labor Relations Act cabins
charging authority to those who suffered some adverse effect
in the workplace. Not, as here, someone who took offense to
something seen while scrolling Twitter. As the filer was not
aggrieved under the NLRA, the Board lacked jurisdiction to
launch this case. And because neither precedent nor deference
alters the best reading of the NLRA, I respectfully concur only
in the judgment.
I.
Understanding the scope of the NLRA requires that we
“proceed[] methodically” through the statute’s wording.
Badgerow v. Walters, 142 S. Ct. 1310, 1317 (2022). The goal,
as always, is to find the text’s “ordinary meaning . . . at the
time Congress enacted the statute,” Perrin v. United States,
444 U.S. 37, 42 (1979), as that is a “fundamental canon of
statutory construction,” Wis. Cent. Ltd. v. United States, 138 S.
1
Ct. 2067, 2074 (2018) (quoting id.). Far from an open-ended
examination, we “begin and end our inquiry with the text,” Star
Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010
(2017), interpreting the language using all “the standard tools
of interpretation,” Kisor v. Wilkie, 139 S. Ct. 2400, 2414
(2019), to read the words “in their context and with a view to
their place in the overall statutory scheme,” Parker Drilling
Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1888 (2019)
(quoting Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 101
(2012)). And where “one interpretation far better accounts
for . . . [t]he best reading” of the text, we adopt that meaning.
See Duncan v. Muzyn, 885 F.3d 422, 425–26 (6th Cir. 2018).
Following those principles, I read the current Section 160(b) to
require an aggrieved charging party. While courts held that a
prior version did not, Congress changed the language, meaning
we cannot rely on cases interpreting the now obsolete
provision. See Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369, 381 (2004) (“An amendment to an existing statute is no
less an ‘Act of Congress’ than a new, stand-alone statute.”).
A. The NLRA
As first passed in 1935, Section 160(b) stated that
“[w]henever it is charged that any person has engaged in or is
engaging in any such unfair labor practice, the Board . . . shall
have power to issue and cause to be served upon such person a
complaint.” NLRA, Pub. L. No. 74-198, ch. 372, § 10(b), 49
Stat. 449, 453 (1935) (codified as amended at 29 U.S.C.
§ 160(b)). Then Congress amended Section 160(b) in 1947 to
add a qualifier:
2
Provided, That no complaint shall issue based
upon any unfair labor practice occurring more
than six months prior to the filing of the charge
with the Board and the service of a copy thereof
upon the person against whom such charge is
made, unless the person aggrieved thereby was
prevented from filing such charge by reason of
service in the armed forces, in which event the
six-month period shall be computed from the day
of his discharge.
29 U.S.C. § 160(b) (emphasis added).1 The NLRB, and the
majority, contend the new words “person aggrieved thereby”
make no difference, and that now, as then, anyone can file a
charge. Traditional tools of statutory interpretation show
otherwise.
1.
Start with the area of agreement. The first clause of
Section 160(b) is broadly phrased, and the natural
interpretation is that anyone, aggrieved or not, can file a
1
The amendments arrived in the Labor Management
Relations Act, better known as the Taft-Hartley Act, “the most
complex, extensive and detailed national legislation on the
subject of labor relations in the history of the country.” Willett
H. Parr, Jr., The Taft-Hartley Law, 23 Indiana Law J. 12, 12
(1947). Given the law’s scope, it was unclear “what the
interpretations of the Act will be in many of its departures from
the [NLRA].” Id. Section 160(b), of course, is one of those
departures.
3
charge. But we do not read clauses in the same sentence in a
vacuum. See Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 167 (Thompson/West 2012).
Rather, we must read them together and in context. Two
possibilities about the language added in 1947 emerge.
First, as argued by the NLRB, the qualifier could mean
that anyone can file a charge alleging an unfair labor practice,
but the Board can only respond if the alleged act occurred no
more than six months before the filing. Unless, the Board adds,
the filer is aggrieved and in the military, in which case they get
six months after discharge. Second, as argued by FDRLST, the
statute gives all aggrieved persons six months to file a charge
and extends that limitation for servicemembers by starting the
clock at their discharge. Both, perhaps, are reasonable. But
ours is not to balance these competing claims, only to
determine the best ordinary meaning of all parts of the statute.
FDRLST offers the best reading because the statute,
read as a whole, contemplates a class of people who may file a
charge—those “aggrieved”—and then gives a carveout for a
particular subset of the aggrieved, those prevented from filing
“by reason of service in the armed forces.” The text refers to
“the person aggrieved thereby.” So who is “the” person? They
cannot be the charged party (as the charged party is not
aggrieved). Instead, they must be the charging party. See
Nielsen v. Preap, 139 S. Ct. 954, 965 (2019) (“Congress’s use
of the definite article . . . ‘indicat[es] that a following noun . . .
is definite or has been previously specified by context.’”
(quoting Merriam-Webster’s Collegiate Dictionary 1294 (11th
ed. 2005))). And the Distributive Phrasing Canon tells us that
the words “thereby” and “such” link “the person aggrieved”
back to “unfair labor practice.” See Scalia & Garner, supra, at
4
214 (“Distributive phrasing applies each expression to its
appropriate referent.”). “Whenever it is charged” that a person
has engaged in “any such unfair labor practice,” then the Board
may issue a complaint, when “the person aggrieved thereby . . .
file[s] such charge.” The words “such” and “thereby” point
back to “unfair labor practice.” Therefore, “the person
aggrieved” by the “unfair labor practice” must be the same
person that “file[s] such charge.”
The NLRB responds that using the phrase “person
aggrieved” instead of “charging party” avoids endless
uncertainty, as “the amendment would have exposed
employers and unions to charges for an indefinite period from
anyone leaving the armed forces.” (Response Br. at 41.) Not
so. If Congress wanted to let anyone file a charge and give
aggrieved servicemen six months from the date of discharge, it
could have spoken clearly: “unless an aggrieved charging party
was prevented from filing such charge by reason of service in
the armed forces.” Ours, of course, is not to rewrite the statute
or suggest more artful alternatives. But neither can the NLRB
ignore the natural reading of Section 160(b) by claiming
Congress had to draft the language as it did.
2.
More evidence arrives in Section 160(l), stating that “no
temporary restraining order shall be issued without notice
unless a petition alleges that substantial and irreparable injury
to the charging party will be unavoidable.” 29 U.S.C. § 160(l).
Again, Congress chose a definite article, “the charging party,”
not an indefinite article that “implies that the thing referred to
is nonspecific.” Indefinite Article, New Oxford American
Dictionary (3d ed. 2010) (quoted in United States v. Johnman,
5
948 F.3d 612, 618 (3d Cir. 2020)). So who is the charging party
given protection from substantial and irreparable injury? The
natural, logical answer is one aggrieved by the charged unfair
labor practice. The interpretation urged by the NLRB means
Section 160(l) would illogically forbid district courts from
issuing an order to protect aggrieved, non-charging parties. A
reading that, while possible, cannot be considered best.2
3.
Some final tools in our box round out the best reading:
the Presumption of Consistent Usage and the Whole-Text
Canon. See Scalia & Garner, supra, at 172 (“The presumption
of consistent usage applies also when different sections of an
act or code are at issue.”). Section 160(f) of the NLRA also
2
Take this case for example. Assume, as the NLRB
argues, that the charging party need not be aggrieved by the
unfair practice alleged. But then assume a slightly different
charge (and, for all reading, this is intentional satire): that
FDRLST threatened its employees with involuntary servitude
and cooked up plans (posted on the internet) to roll out the
diabolical scheme immediately. Too bad, says the NLRB’s
reading. Because the charging party is not threatened with any
harm, let alone irreparable injury, Section 160(l) offers no aid
to the now indentured FDRLST employees. Such results are
avoided by reading “the charging party” to be aggrieved, and
so eligible for injunctive relief, under Section 160(l). And
because we read statutes in harmony, that reading provides
more evidence that Congress contemplated only those
aggrieved could file a charge under Section 160(b).
6
contains the term “person aggrieved,”3 and we have interpreted
that phrase to mean that the person “must suffer ‘an adverse
effect in fact,’ to be ‘aggrieved’ under the NLRA.” Quick v.
NLRB, 245 F.3d 231, 251–52 (3d Cir. 2001) (quoting Retail
Clerks Union 1059 v. NLRB, 348 F.2d 369, 370 (D.C. Cir.
1965). Consistent Usage helps show that “aggrieved” does
more in Section 160(b) than merely clarify a charging party
from a charged party; it puts a requirement on all charging
parties. While the sections of the NLRA refer to different
events (filing a charge versus receiving an adverse ruling from
the Board), that is often true of different sections of an act or
code. The Presumption still applies in favor of reading the
statute to require an “adverse effect in fact.”
Consider another consequence of the NLRB’s reading.
All agree Section 160(b) serves a gatekeeping function,
because the NLRB can only investigate charges, and cannot
launch an investigation on its own.4 Reading Section 160(b) to
allow any person to file a charge, and thus trigger the Board’s
otherwise dormant authority, retires the keeper from gate-
watching duty. Indeed, if anyone, anywhere can file a charge
about anything, why require a charge to be filed at all? The
Board’s reading comes close to rendering some of the text
3
29 U.S.C. § 160(f) says: “Any person aggrieved by a
final order of the Board . . . may obtain a review of such order.”
4
A point that seems to distinguish the majority’s
comparison of a charging party to a witness to a crime. True,
any person can report a crime whether or not they are a victim.
But ordinarily such a report is not needed to trigger law
enforcement’s investigative authority. The NLRB does need
that prompt, so the meaning of the charging requirement is
necessarily part of the statute’s best meaning.
7
inoperative, a direction courts should avoid where possible.
See Scalia & Garner, supra, at 174 (The Surplusage Canon).
Interpreting Section 160(b) to reach only aggrieved persons
keeps the gates intact, consistent with Congress’s plan for the
1947 amendments to “prescribe the legitimate rights of both
employees and employers” to facilitate “orderly and peaceful
procedures for preventing the interference by either with the
legitimate rights of the other.” 29 U.S.C. § 141(b).
B. The Proper Place for Caselaw
The NLRB, and the majority, heavily weigh prior
judicial interpretations of Section 160(b). Ordinarily, that is the
proper course. But here caselaw avoids, rather than answers,
the interpretive question presented: what is the best meaning of
Section 160(b) following the 1947 amendments? As that
question has not been addressed, we should follow the
language of Congress, not the courts.
1.
The NLRB stakes its claim on a single Supreme Court
decision suggesting that a charging party under Section 160(b)
can be a “stranger to the labor contract.” NLRB v. Indiana &
Michigan Elec. Co., 318 U.S. 9, 17–18 (1943). That it does.
But Indiana does not apply here. Indiana considered whether
evidence of illegal conduct might disqualify a local union from
making an unfair labor practice charge against a Company. Id.
at 17. The Court determined that the NLRA “requires a charge
before the Board may issue a complaint, but omits any
requirement that the charge be filed by a labor organization or
an employee.” Id. That reading was informed by portions of
legislative history. See id. (“Senator Wagner, sponsor of the
8
Bill, strongly objected to a limitation on the classes of persons
who could lodge complaints with the Board.”). But more
importantly, Indiana interpreted the 1943 version of Section
160(b) lacking the “person aggrieved” language. Nearly eight
decades later, the Court has not had occasion to revisit Indiana
and Congress’s amendments.
2.
But our Circuit has, and the Board says those cases must
control. That is not correct because those decisions simply
apply Indiana without noting, let alone discussing, the changes
to Section 160(b). Take NLRB v. Television & Radio Broadcast
Studio Employees, Local 804, 315 F.2d 398, 400–01 (3d Cir.
1963), where a union argued that only an employee could file
a charge with the Board. We explained the union did not
“seriously press” that point, and that, in any event, the
argument was foreclosed by Indiana. Id. at 401. That is hardly
sufficient to control this decision. So too with our decision in
NLRB v. Local No. 42, International Association of Heat &
Frost Insulators & Asbestos Workers, 469 F.2d 163, 165 (3d
Cir. 1972) (per curiam). There, the union argued that only an
aggrieved party could file a charge. In a single sentence, we
simply cited Television & Radio Broadcast Studio Employees,
Local 804, without more, as binding. Id.
Indiana cannot carry that much weight this far into the
future. And our prior cases simply cite Indiana.5 Applying
5
As do the other decisions cited by the Board. None
undertake a textual analysis of Section 160(b), usually because
the charging parties are also aggrieved parties. The Second
9
those decisions to the amendments passed in 1947 necessarily
extends, rather than follows, precedent. And when faced with
the choice of broadening decisions that fight, not follow, the
best reading of the text, our obligation is clear. See Williams v.
Taylor Seidenbach, Inc., 958 F.3d 341, 350 (5th Cir. 2020) (en
banc) (Ho, J., concurring) (judges should follow legal texts “to
the maximum extent that Supreme Court precedent permits”);
Preterm-Cleveland v. McCloud, 994 F.3d 512, 543 (6th Cir.
2021) (en banc) (Bush, J., concurring) (same); Edmo v.
Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J.,
dissenting from denial of rehearing en banc) (same); see also
Circuit’s decision in Elec. Contractors, Inc. v. NLRB, 245 F.3d
109 (2d Cir. 2001) is a good example. There, the charging party
was a union alleging that a vendor tried to prevent its
employees from joining. The vendor argued the Board lacked
jurisdiction because the charging party was a labor
organization. Relying solely on Indiana, the court disagreed.
Id. at 121. But, of course, the union might have been an
aggrieved, interested party. The cases cited by the Board, and
the majority, all follow that theme: interested parties filing
unfair labor practice charges, and courts offering passing
reference to either Indiana, the Board’s any-person regulation,
or both. NLRB v. Chauffeurs, Teamsters & Helpers, Loc. No.
364, 274 F.2d 19, 24–25 (7th Cir. 1960) (citing Indiana to
reject the argument that a party “engaged in the labor dispute”
could not file a charge); S. Furniture Mfg. Co. v. NLRB, 194
F.2d 59, 60–61 (5th Cir. 1952) (citing Indiana to reject the
argument that one aggrieved party may not file a charge on
behalf of a class of aggrieved parties); NLRB v. Gen. Shoe
Corp., 192 F.2d 504, 505 (6th Cir. 1951) (citing Indiana to
reject the argument that a labor union must have a member
employed by the charged party to file a charge).
10
United States v. Johnson, 921 F.3d 991, 1010 (11th Cir. 2019)
(en banc) (Jordan, J., dissenting) (when it comes to precedent
with a “shaky originalist foundation . . . there is always the
option of declining to broaden it—of refusing to extend it one
inch beyond its previous contours” (cleaned up)).6
Despite the Board’s insistence that this is well-settled
law, no court has held what we hold today: that even under the
post-1947 NLRA, a stranger may file a charge with the NLRB,
despite Section 160(b)’s “person aggrieved” language. That
leaves little work for the “aggrieved party” limitation to do. A
limitation that, once read out of the statute, gives the Board
near plenary jurisdiction to roam unfettered around the nation
investigating the perceived threats to labor posed by a tweet
here, a post there, a comment somewhere. Respectfully, that is
not the best reading of the statute.
II.
Finally, the Board turns to deference, urging us to put
aside the statute because it has “consistently reaffirmed”
Indiana in its regulations. (Response Br. at 36–37.) But just as
the Board cannot transform day into night, it cannot import
Indiana’s pre-1947 statutory analysis into the post-1947
NLRA. A point made clear by the Supreme Court’s repeated
6
The Board’s attempt to rely on the legislative history
referenced in Indiana as evidence of “Congress’s choice to
allow any person to file charges” is unavailing. (Response Br.
at 39.) As explained, Indiana interpreted a different statute.
And, of course, “[w]e are governed by laws, not by the
intentions of legislators.” Conroy v. Aniskoff, 507 U.S. 511,
519 (1993) (Scalia, J., concurring).
11
instructions on the limited deference given to agency statutory
interpretations. Under the familiar framework of Chevron, a
court must first determine whether the statute is “ambiguous.”
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 843 (1984). A phrase that, while once shrouded in
mystery,7 is now understood to turn not on possible meanings,
but ordinary understanding. See Kisor, 139 S. Ct. at 2415
(courts must “empty” the “legal toolkit”); City of Arlington v.
FCC, 569 U.S. 290, 296 (2013) (“First, applying the ordinary
tools of statutory construction, the court must determine
whether Congress has directly spoken to the precise question
at issue.” (quotations omitted)). Finding ambiguity where none
exists is, as Chevron itself states, contrary to the judicial duty
to act as “the final authority on issues of statutory
construction.” 467 U.S. at 843 n.9; see also Gun Owners of
America, Inc. v. Garland, 19 F.4th 890, 926 (6th Cir. 2021) (en
banc) (Murphy, J., dissenting) (“A finding of ambiguity can
occur only at the end of our usual interpretative process . . . .
[A] court must give the relevant words their ordinary
meaning.”); Forrest Gen. Hosp. v. Azar, 926 F.3d 221, 228 (5th
Cir. 2019) (“Chevron deference must be reflective, not
reflexive.”); Arangure v. Whitaker, 911 F.3d 333, 338 (6th Cir.
2018); Voices for Int’l Bus. & Educ., Inc. v. NLRB, 905 F.3d
770, 780–81 (5th Cir. 2018) (Ho, J., concurring) (“Finding
ambiguity where it does not exist . . . misuse[s]
7
See Brett Kavanaugh, Two Challenges for the Judge
as Umpire: Statutory Ambiguity and Constitutional
Exceptions, 92 Notre Dame L. Rev. 1907, 1912–13 (2017)
(“[J]udges should strive to find the best reading of the statute,
based on the words, context, and appropriate semantic canons
of construction” to avoid a “culture of ambiguity [instead of] a
culture of law.”).
12
. . . Chevron.”).8 In short, deference arises in the rare case when
no superior statutory reading can be found, not when an
inferior construction competes with a best reading.
And as explained, the best reading of the NLRA grants
charging power only to those aggrieved. With our tools
unpacked, the NLRB’s plea for deference is unwarranted.
8
FDRLST notes that Chevron deference is
constitutionally suspect, a practice that requires courts to “bow
to the nation’s most powerful litigant, the government, for no
reason other than that it is the government.” Egan v. Delaware
River Port Auth., 851 F.3d 263, 278 (3d Cir. 2017) (Jordan, J.,
concurring). That suspicion is decreased with a searching
application of the statutory text, after which a “court will
almost always reach a conclusion about the best
interpretation,” leaving “no need to adopt or defer to an
agency’s contrary interpretation.” Kisor, 129 S. Ct. at 2448
(Kavanaugh, J., concurring). “In other words,” the
interpretation requirement of Chevron, “taken seriously, means
that courts will have no reason or basis to put a thumb on the
scale in favor of an agency.” Id.; see also Pauley v. BethEnergy
Mines, Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting)
(“Chevron is a recognition that the ambiguities in statutes are
to be resolved by the agencies charged with implementing
them, not a declaration that, when statutory construction
becomes difficult, we will throw up our hands and let
regulatory agencies do it for us.”).
13
III.
If we needed to reach whether Domenech’s words
constituted an unfair labor practice, the majority’s reasoned
holding is correct. But we need not, because the best reading
of the NLRA trims the NLRB’s jurisdiction and prevents
unaffiliated parties from searching the internet for wisecracks
to transform into workplace violations that unleash the
NLRB’s sweeping power. Precedent does not require today’s
jurisdictional holding, and the NLRA’s text marshals against
it. For those reasons, I respectfully concur only in the
judgment.
14