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‘Anyone’ can file an unfair labor practice complaint with the NLRB | Snell and Wilmer

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 failed to consider the employer’s tweet in context. The Court noted that Section 8(c) of the National Labor Relations Act (“NLRA” or “Act”) protects the employer’s speech, so long as the employer’s speech “does not contain no threat of retaliation, force or promise of benefits”. Citing the Supreme Court decision in Knox vs Service Employees567 US567 (2012), the Court reminds us that Section 8(c) “reinforces the open market created by the First Amendment” in which divergent ideas on political, economic and social issues can compete freely for acceptance public without inappropriate government interference.'”

It is worth noting that in addition to the issue of the protection of the employer’s speech, 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 complaint with the NLRB, alleging that any person has engaged or is engaging in an unfair labor practice.

The employer argued that in filing the complaint, the Commission exceeded its authority because the charge was not 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 they have been harmed by the alleged unfair labor practice.

In accordance with the Commission’s long-established law, the Court noted that “[a] the charge is merely the means by which an action by the Commission is brought and is not a formal pleading filed by a party to the proceeding. » General furniture manufacturing, 26 NLRB 74, 76 n. 3 (1940). The prosecution only triggers the NLRB’s investigative mechanism.

In sum, the Court’s decision is a good and timely reminder to employers that their speech during union election campaigns is protected by law, as long as it does not contain threats of reprisal 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 harmed by the alleged unfair labor practices.