Who Counts as a “Reasonable Employee”? The Third Circuit’s Bungling of Section 8(a)(1) Violations

Abstract: The National Labor Relations Act (NLRA) protects private employees’ right to unionize and collectively bargain with their employers. Section 7 of the NLRA guarantees employees the right to self-organize labor unions, while section 8 outlines numerous unfair labor practices. Specifically, section 8(a)(1) bans employer interference, coercion, or restraint of any section 7 rights. In a 2022 case, FDRLST Media v. NLRB, the Third Circuit Court of Appeals reversed a National Labor Relations Board (NLRB) finding that FDRLST Media’s executive officer’s tweet constituted a section 8(a)(1) violation. This Comment examines the history of section 8(a)(1) violations, specifically discussing the widely adopted objective employee test. An analysis of the NLRA’s purpose, as well as the long adjudicatory history of section 8(a)(1) violations, makes clear that an objective test is the preferred method of the NLRB and every circuit court. This Comment next explores how the Third Circuit subtly shifted the standard in FDRLST Media, focusing on subjective factors that led it to reverse the NLRB. This Comment concludes by arguing that the Third Circuit’s decision is contrary to precedent and practicably unworkable.