In a recent decision, FDRLST Media, LLC v. National Labor Relations Board (No. 20-3434 & 3492 3rd Cir. May 20, 2022), the United States Court of Appeals for the Third Circuit (“Court”) denied enforcement of an order of the National Labor Relations Board (“NLRB” or “Board”) and held that an employer’s tweet to employees during a union election campaign did not constitute an unfair labor practice.
In the Court’s view, the Board had failed to consider the employer’s tweet in context. The Court emphasized that Section 8(c) of the National Labor Relations Act (“NLRA” or “Act”) protects employer speech, so long as the employer’s expression “contains no threat of reprisal or force or promise of benefit.” Citing the Supreme Court decision in Knox v Service Employees, 567 U.S.567 (2012), the Court reminds us that 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.’”
It is well to note that, in addition to the protected employer speech issue, the Court’s decision in this case is important for another reason. The Court reaffirms and explains the well-established principle that “any person” may file a charge with the NLRB, alleging that any person has engaged in or is engaging in any unfair labor practice.
The employer argued that, in issuing the complaint, the Board had exceeded its authority because the charge had not been filed by an “aggrieved party.” The Court rejected the employer’s argument and reaffirmed that the Act does not require the party filing the charge to show that it was aggrieved by the alleged unfair labor practice.
Agreeing with long-established Board law, the Court noted that “[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.” General Furniture Mfg., 26 NLRB 74, 76 n. 3 (1940). The charge merely sets in motion the NLRB machinery of an inquiry.
In sum, the Court’s decision is a good and timely reminder to employers that their speech during union election campaigns is protected by the Act, so long as it does not contain threats of reprisals or force or promises of benefits, and that there is no requirement that the filing of unfair labor practice charges with the NLRB be limited to parties aggrieved by the alleged unfair labor practices.
