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A WLF-digested concurrence written by The Honorable Paul B. Matey, Judge, U.S. Court of Appeals for the Third Circuit.

Decided May 20, 2022

Opinion Topic: NLRB jurisdiction over complaint filed by non-“aggrieved” party

Introduction: After reading a tweet from FDRLST MEDIA’s Executive Officer stating that he’d send the first employee that “tries to unionize … back to the salt mine,” an individual with no relation to FDRLST MEDIA filed a claim with the NLRB. The NLRB issued an unfair labor complaint against the company. A Board ALJ found a violation of the National Labor Relations Act, the Board affirmed, and FDRLST filed a petition for review in the Third Circuit. The court, per Judge Haridman, disagreed with FDRLST’s argument that the NLRB lacked authority to issue a complaint based on the claim of a third party who was not “aggrieved” by the labor practice. However, the court held that the Board’s finding of an NLRA violation was not supported by substantial evidence.

Judge Matey joined the majority’s holding but wrote separately in agreement with FDRLST’s argument that the NLRB lacked authority over complaints filed by “someone [not in FDRLST’s employ] who took offense to something seen while scrolling Twitter.” Using traditional statutory-interpretation tools, Judge Matey concludes that a court need not look beyond the text of the NLRA to conclude that “person aggrieved thereby” does not include an individual unconnected to the workplace in question. Such a reading would strip that limiting term out of the NLRA, Judge Matey writes, giving “the Board plenary jurisdiction to roam unfettered around the nation investigating . . . perceived threats to labor.”

MATEY, Circuit Judge, concurring in the judgment.

*** 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. 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.”).


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:

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…

29 U.S.C. § 160(b) (emphasis added). 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 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 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, 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.

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 contains the term “person aggrieved,” 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. 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 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

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 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 Broadcasting 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 Broadcasting 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. Applying 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”) (quotations omitted).

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 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, 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 (quotations omitted). 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…