Why There Is No Standing Requirement for Filing NLRA Charges

Over the last 10 years or so, I have filed a number of high-profile unfair labor practice charges against coercive statements, with many of those statements being made on Twitter. I file those charges even though I am merely a bystander, not an employee or an aggrieved party.

Every time I do this, some individuals ask how I am able to file charges when I don’t have “standing” because I am not the one who is being injured by the coercive statements.

The short answer is that the National Labor Relations Act (NLRA) has no standing requirement.

Section 10(b) of the NLRA just says that:

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

The NLRB has also clarified in its regulations that this lack of an explicit standing requirement means that:

Any person may file a charge alleging that any person has engaged in or is engaging in any unfair labor practice affecting commerce.

The Supreme Court has also recognized that there is no NLRA standing requirement since 1943.

This may seem like a little statutory drafting quirk that has taken on a life of its own. But it was intentional.

During the the drafting of the NLRA, there was debate about whether to limit the right to file charges to affected individuals. Senator Wagner strongly opposed any such limitation and ultimately prevailed in ensuring that anyone can file a charge.

This is the key excerpt from this debate:

The Chairman: I agree with you that it would be unfortunate and improper for some outsider, some busybody, some social worker in the town, to claim that sanitary conditions were not proper in the factory and be able to make a complaint and call this Board’s attention to conditions that were satisfactory to the employees but were not satisfactory to outsiders. Of course, it does not seem that a sensible board would pay much attention to such complaints, but anyway I think the point is well made that provisions should be made to limit the issuing and making of complaints in labor disputes to persons who are connected with the plant. I think that is also Senator Wagner’s view of it.

Senator Wagner: I will not agree to that limitation. You are restricting the workers’ rights there.

The Chairman: We are talking about who shall lodge complaints.

Mr. Caldwell: Yes, sir.

The Chairman: Now, I have an industry, and I have employees. Now, you are raising the question of whether this language permits some outsider in the community — some minister or some other person or some woman’s organization, or some labor organization, other than the one in the establishment — can lodge a complaint.

Mr. Caldwell: Yes; if no employee in the plant participates. That is my limitation. I said, of course, that if even a very small group of men in the plant belongs to a labor union or have another connection, they have the right to make a complaint, regardless of how few they are, if they have a controversy with the employer, and the Board would certainly be entitled to hear the few as well as the many; but the question I am raising under this language is that whether — no employee being dissatisfied, no employee complaining — whether a third party could come in and say “I will create a controversy in this plant, whether there is one here or not.”

Senator Wagner: Of course, it comes back to the old question which is at the bottom of it. I do not say this of your representative plan, but of most representative plans, that you want to retain the economic advantage which you have — where an employee has any complaint to make, he is at once discharged, and rather than lose his job he is not going to make a complaint. Now, do you want to leave workers of that kind absolutely powerless to belong to an outside organization, and there is an individual who may lodge that complaint without running the risk. The complaint may be well founded, without the individual running the risk of being notified the next day that his job is at an end.

The reasoning here is very clear. Employees reasonably fear retaliation from their boss if they file charges. So we want to make it possible for people who cannot be retaliated against to do it instead.

The NLRA does of course contain a protection against retaliation for filing charges, but in reality, it is not hard for an employer to retaliate against employees in indetectable ways, including by deciding not to promote them or give them raises in the future. The drafters recognized this reality and so eliminated a standing requirement to provide another possible way to enforce the law without opening workers up to retaliation.