We’ve all been there: It’s late in the afternoon, and you’ve spent the last few hours banging out a brief. You need a brain breather. So you pick up your phone and open Twitter. You scroll for a few minutes and, sure as the sun does rise, you stumble across an offensive tweet. You scoff, you fume, and in your less measured moments, you even fire off your own acerbic missive. But there’s not much else you can do—is there?
Well, according to a recent decision from the Third Circuit, you can do at least one thing: file an unfair-labor-practice charge. If the offending tweet has at least some hook to a workplace, you can file a charge even if you have no connection to the workplace in question. In fact, you can file one even if you’re doing it only to harass the person who wrote the tweet. Anyone—literally anyone—can file a charge against anyone, at any time, for any reason. In other words, in the Third Circuit’s view, we’ve gotten Twitter all wrong. Twitter isn’t the new public square; it’s the new Wild West.
The Third Circuit’s decision started with a tweet by Ben Domenech, an executive officer of the Federalist, a right-leaning publication. In the summer of 2019, writers at a different publication, Vox, were embroiled in a difficult union-contract negotiation. To protest a lack of progress, they walked off the job. Domenech, as a publisher in the same field, was naturally following the story. He had thoughts. And so, as many of us do in such moments, he took to Twitter. Tagging the Federalist’s official account, he wrote, “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”
None of the Federalist’s writers complained; it’s not even clear that any of them saw the tweet. But a certain Joel Flemming did. And Flemming—a private citizen with no connection to the Federalist—was offended. So offended, in fact, that he filed a charge with the National Labor Relations Board alleging that the tweet was an illegal threat.
Over the Federalist’s objections, the Board held that Flemming had standing to file the charge. It also agreed that the tweet was a threat. It ordered Domenech to notify his employees that he’d violated the law and to delete the offending tweet. The Third Circuit, however, refused to enforce the Board’s order. It likewise concluded that Flemming had standing, but it disagreed on the merits. The tweet, it reasoned, was obviously a joke.
The court’s opinion has drawn more attention than your average labor-law case. Most of the coverage has focused on the substantive holding—that Domenech was joking. But more troubling was the holding on standing. To agree with the Board on standing, the court had to accept the Board’s “any person” rule. That rule says that anyone—literally anyone—can file a charge. And that’s a position the court never should have accepted. The Board’s rule not only gets the text and history wrong, but it also threatens to distort labor law far into the future.
Let’s start with the textual problem. Section 10(b) of the NLRA dictates how the Board’s General Counsel starts an investigation. The General Counsel can’t start one on her own. Instead, she has to wait for a charge. Once the charge is filed, she takes over the case; she, not the charging party, decides whether and how it goes forward. But the charge is still key. Without one, the General Counsel can’t do anything.
That limitation raises the question: Who files the charge? Here’s what section 10(b) says:
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 . . . 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 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.
Note two things. First, the opening sentence is stated in the passive voice. It says a charge is made; it doesn’t say who does the charging. Second, the person filing the charge doesn’t show up until the proviso. The proviso imposes a six-month statute of limitations. But if “the person aggrieved” by an unfair labor practice is prevented from filing a charge by military service, the limitations period is tolled.
Broadly speaking, there are two ways to read this language. First, you could read the opening sentence and the proviso together. The opening sentence doesn’t say who files the charge, but the proviso does—a “person aggrieved.” So we have our answer. The person filing the charge is the person aggrieved by the unfair labor practice.
Second, you could read the opening sentence and the proviso separately. The opening sentence, with its passive construction, puts no limit on who can file a charge. So, you might conclude, there is no limit. The limit comes in only when we look at the proviso and the limitations period. That means if you’re a “person aggrieved,” you have to file your charge within six months, unless you were prevented from filing by military service.
The more you think about it, the less sense the second interpretation makes. For one thing, it violates the cardinal rule of statutory construction: read the text as a whole. It carves 10(b) into discrete chunks and forces us to read those chunks in a vacuum. From a statutory-interpretation standpoint, that’s entirely backward. The parts of a statute are supposed to inform one another’s meaning, not speak to entirely separate problems or situations.
Besides, the second interpretation makes little practical sense. It would mean that the limitations period applies only to aggrieved people. If a person isn’t aggrieved—if she has no concrete beef with anyone—she can file whenever you want. So people with no stake in a dispute would have a freer hand to file charges. And why would we want officious intermeddlers to have freer rein than people with real skin in the game? It makes no sense.
Yet as nonsensical as this interpretation is, the Board has followed it for decades. And worse, the courts have acquiesced in it. How is that possible?
To answer that question, we need to understand a bit of history. The NLRA was passed in 1935. At the time, section 10(b) included only the first sentence. That was when the Board, relying on the sentence’s passive language, adopted the any-person rule. And relying on the same language, the Supreme Court effectively blessed the Board’s approach. Then, in 1947, Congress amended the NLRA and added the proviso. The amended section referred to a “person aggrieved”—finally identifying the person who files the charge.
You would think, then, that the Board and the courts would revisit the any-person rule in light of the new language. But that didn’t happen. Instead, the Board hewed to the old rule; and the courts, relying reflexively on pre-1947 precedent, went along with it.
That’s a sloppy way to do law. And unsurprisingly, it leads to remarkably bad policy results. Consider first the effect it has on the volume of litigation. By allowing charges from random third parties, the Board multiplies its own docket. Charges are filed in cases where no one involved cared enough to complain. The Federalist case is a perfect example. Not a single Federalist employee felt threatened by Domenech’s tweet. But some unconnected stranger, offended by what he saw on Twitter, was able to turn an obvious joke into a federal case. The wasted time and resources are as saddening as they are predictable.
More fundamentally, the any-person rule undercuts the whole purpose of the charge requirement. The charge requirement is a gatekeeping mechanism. It prevents the General Counsel from launching investigations on her own. But if any person can file a charge, the metaphorical gate is wide open. The General Counsel herself is a “person”; she could file her own charge. Or she could instruct one of her investigators to file a charge. Or she could ask a friend to file one. And then, charge in hand, she could launch an investigation. The charge becomes an empty exercise—a paper wall not worth the paper it’s printed on.
That kind of blatant collusion might strike you as improbable. But it need not be so blatant to achieve the desired effect. For example, the General Counsel could publicly announce that she’s interested in receiving a certain kind of charge. She doesn’t have to tell anyone to file a charge; she could just say she’s open to one. Then, some ideological fellow traveler could oblige her. This person need not have any stake in the actual dispute; she only needs to agree with the General Counsel’s agenda.
Not only is this kind of indirect collusion possible, but it’s already happening. In late 2021, General Counsel Jennifer Abruzzo announced that she was interested in revisiting whether student athletes are employees under the NLRA. She also announced that she was interested in considering charges based on misclassification alone—that is, she wanted to consider whether a school violates the NLRA simply by classifying a student athlete as a nonemployee. And lo and behold, within months, just such a charge came in. This charge was filed not by a student, but by a newly formed advocacy group dedicated to reclassifying student athletes. The group had no direct stake in the dispute; in fact, it even admitted that it could find no student willing to file a charge. Instead, it simply agreed with Abruzzo and filed a charge to kick off an investigation.
If that strikes you as an awful way to conduct labor-law investigations, it’s because it is. It not only wastes time and resources, but also encourages collusive charges. No one would design an enforcement system this way from scratch. But fortunately, the law does not require us to perpetuate it. The amended text of section 10(b) says who can file a charge: a “person aggrieved.” Given that explicit limit, there is no good reason to continue following the any-person rule. The rule has been around for a long time, but that’s about all it has going for it. Courts should step up and force the Board to change it. Until they do, no tweet will be safe.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at firstname.lastname@example.org.