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The NLRA Does Not Authorize Everyone on Twitter to Call the Labor Police<\/strong><\/p>\n Jared McClain & Kara Rollins<\/em>*[1]<\/a><\/p>\n \u00a0<\/em><\/p>\n When Vox Media employees walked out during a bargaining dispute in 2019, Twitter users tweeted along.[2]<\/a> Among the commentators was Ben Domenech, the publisher of the web magazine The Federalist<\/em>. He tweeted from his personal account, \u201cFYI @fdrlst first one of you tries to unionize I swear I\u2019ll send you back to the salt mine.\u201d[3]<\/a> Again, Twitter users reacted. A senior contributor at The<\/em> Federalist <\/em>replied that workers \u201cdemand to be paid in Ben-mixed cocktails.\u201d[4]<\/a> Another Twitter user joked that readers should take The Federalist<\/em>\u2019s views \u201cwith literally an entire mine of salt.\u201d[5]<\/a> And others responded with some variation of, \u201cHaha, it\u2019s funny because it\u2019s illegal.\u201d[6]<\/a> One Twitter user, though, made a federal case out of Domenech\u2019s tweet.<\/p>\n Joel Fleming, a Boston attorney\u2014and active Twitter user[7]<\/a>\u2014filed a charge with the National Labor Relations Board alleging that Domenech\u2019s tweet was an unfair labor practice. Fleming\u2019s charge was vital because NLRB does not have roving jurisdiction; it can investigate unfair labor practices only based on a filed charge.[8]<\/a> The National Labor Relations Act provides, in passive voice, that the Board shall have power \u201c[w]henever it is charged that any person has engaged in or is engaging in any such unfair labor practice.\u201d[9]<\/a> The next sentence tolls the statute of limitations for unfair-labor-practice charges when \u201cthe person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces[.]\u201d[10]<\/a> Whether a charging party must be aggrieved by the alleged practice became a threshold question in NLRB\u2019s case against FDRLST Media, LLC, the company that publishes The Federalist<\/em>.<\/p>\n The Board\u2019s view is that anyone can file a charge, just like anyone can call the police. That reading of the NLRA caused a comedy of jurisdictional and constitutional errors. Fleming, it turned out, knew so little about FDRLST that he filed his charge in NLRB\u2019s Region 2, which covers New York City, a forum with no connection to the case.[11]<\/a> NLRB rules require a charging party to file a charge in the region where the unfair labor practice occurred.[12]<\/a> These requirements are scarcely an issue since a charging party nearly always has a personal connection to the alleged conduct.[13]<\/a> But Fleming\u2019s lack of familiarity with FDRLST, and NRLB\u2019s willingness to ignore its own rules, created the issue of whether due process limits the ability of a federal agency\u2019s subdivision to assert personal jurisdiction over persons with no connection to that forum.<\/p>\n A stranger filing an unfair-labor-practice charge also created a third issue once the Board began to prosecute FDRLST. Because a charging party typically has some connection to an alleged unfair labor practice, important context is baked into the charge\u2014context which is critical to the First Amendment restrictions on NLRB\u2019s authority, including the existence of labor strife and how employees perceived the challenged speech. The First Amendment limits the Board\u2019s enforcement power by requiring NLRB to assess employer speech \u201cin the context of its labor relations setting.\u201d[14]<\/a> NLRB must investigate and prove how, given the surrounding circumstances, an objective employee at the charged company would feel threatened.[15]<\/a> But the prosecution of FDRLST revealed how little NLRB believes that the First Amendment applies to its enforcement actions.<\/p>\n NLRB\u2019s Case Against FDRLST<\/strong><\/p>\n Empowered by Fleming\u2019s charge, NLRB subpoenaed the testimony of four of FDRLST\u2019s six employees and demanded that the company produce an enormous trove of internal documents relating to its editorial <\/em>decisions.[16]<\/a> After the company objected, the Board\u2019s General Counsel stipulated to a sparse record that would constitute the agency\u2019s entire case in chief.<\/p>\n FDRLST moved to dismiss the case for lack of jurisdiction, based on two principal arguments: (1) NLRB can prosecute unfair labor practices only when an aggrieved<\/em> person has filed a charge and (2) NLRB Region 2 lacked personal jurisdiction over FDRLST because the company, the charging party, and the allegations lacked any relationship to New York. NLRB proceeded undeterred. Confining its legal analysis to a single paragraph, the Board ruled that \u201cthe clear and unambiguous weight of both Board and Supreme Court authority holds that any person may file an initial charge.\u201d[17]<\/a> And without further elaboration, the Board rejected the \u201cattacks on personal jurisdiction\u201d as \u201csimilarly inapposite.\u201d[18]<\/a><\/p>\n NLRB\u2019s General Counsel prosecuted the agency\u2019s case before an NLRB employee, Administrative Law Judge Kenneth W. Chu. Despite having subpoenaed two-thirds of FDRLST\u2019s employees, the NLRB General Counsel called no witnesses. Two FDRLST employees, however, submitted sworn affidavits through independent counsel explaining that they took Domenech\u2019s tweet as a joke and did not feel threatened.[19]<\/a> Domenech also submitted an affidavit explaining that his tweet was a joke. The agency\u2019s only evidence was the tweet itself and those articles from The Federalist<\/em>, which the General Counsel used to show an \u201canti-union editorial position.\u201d[20]<\/a> In ALJ Chu\u2019s view, this evidence was enough to satisfy the agency\u2019s burden of proving that Domenech\u2019s tweet threatened or coerced FDRLST employees. The Board affirmed the ALJ\u2019s decision, almost entirely.[21]<\/a><\/p>\n FDRLST petitioned for review in the U.S. Court of Appeals for the Third Circuit, asserting its two jurisdictional arguments and that NLRB\u2019s enforcement violated the First Amendment because the agency failed to consider any contextual evidence.[22]<\/a><\/p>\n Subject-Matter Jurisdiction<\/strong><\/p>\n The primary issue on appeal is whether NLRB had subject-matter jurisdiction (i.e.<\/em>, statutory authorization) to prosecute FDRLST. As mentioned above, Congress used passive voice in the relevant statutory provision, empowering NLRB to investigate and prosecute \u201c[w]henever it is charged that any person has engaged in \u2026 any such unfair labor practice[.]\u201d But charged by whom?<\/p>\n FDRLST maintained that passive voice does not render a law\u2019s subject unknowable or ambiguous. Relying on traditional tools of interpretation, courts will look to a statute\u2019s structure, purpose, surrounding text and provisions to identify a particular actor. Chief Justice Marshall relied on the constitutional provisions surrounding the Fifth Amendment to determine that the actor prohibited from taking private property for public use was the federal government, not the states.[23]<\/a> The same approach prevails today. Writing for a unanimous court in 2019, Justice Ginsburg discerned the subject of a passive-voice provision in the Copyright Act from surrounding sections and context.[24]<\/a> And most pertinent to FDRLST\u2019s case, the Burger Court held that surrounding context showed that Congress intended for \u201caggrieved persons\u201d to be the subject of a passive-voice provision that authorized suit under \u00a7\u00a0810 of Title VIII.[25]<\/a><\/p>\n In line with this precedent, FDRLST cited several canons of statutory interpretation to support its conclusion that only \u201caggrieved persons\u201d can file a charge. The phrasing \u201cunless the person aggrieved thereby<\/em> was prevented from filing such <\/em>charge by reason of service in the armed forces\u201d indicates that Congress expected that only aggrieved persons would file such unfair-labor-practice charges. In other words, aggrieved persons may file a charge, but the limitation period will toll for only those aggrieved persons prevented from filing by their services in the armed forces. If just anyone could file a charge, it would negate the charging limitation Congress placed on NLRB and give the agency roving investigative authority that the legislature withheld.<\/p>\n But NLRB reads the statute to permit anyone <\/em>to file a charge and that the aggrievement requirement applies solely to the tolling provision. According to NLRB, Congress created two requirements for the tolling provision\u2014a charging party must file within six months unless they (1) are aggrieved and (2) prevented from filing by service in the armed forces. NLRB says this reading reflects Congress\u2019s desire to promote stability and finality in labor disputes through a very narrow statute of limitations. The problem, though, is that Congress did not write Section 10(b) as if it created two tolling requirements. On the contrary, the legislative history shows that Congress did not think it was changing anything at all about who could file a charge; the legislature, in the wake of World War II, was merely protecting the right of servicemembers to file a charge.[26]<\/a><\/p>\n Barely bothering with statutory interpretation, the Board relied almost exclusively on a throwaway line in a Supreme Court decision that predates the statute\u2019s aggrievement language. In Indiana & Michigan<\/em>, the issue was whether a union\u2019s improper motives prevented it from being a charging party.[27]<\/a> The Court ruled that a charging party\u2019s motivation is irrelevant to the Board\u2019s authority to investigate an unfair labor practice.[28]<\/a> Notwithstanding the limited question at issue, the Court said in dicta that even a stranger to a labor contract could file a charge.[29]<\/a> Elevating this dictum into binding regulation, the Board\u2019s rules allow any person to file a charge\u2014presumably even the NLRB General Counsel or any other Board employee.[30]<\/a><\/p>\n The problem for NLRB is that Section 10(b) would still limit who can file a charge even if it didn\u2019t impose an aggrieved-person requirement. Originating in cases interpreting aggrieved-person provisions, the Supreme Court developed the \u201czone of interest\u201d inquiry. The basic idea is that a statute applies to only the group of persons that Congress intended to protect. The Court has refined this inquiry over the years, articulating that a zone of interest does not extend as far as Article III standing.[31]<\/a> And then, in Lexmark<\/em>, the Court offered another important clarification: the zone-of-interest inquiry is a mode of statutory interpretation\u2014not a standing analysis.[32]<\/a> Lexmark<\/em> held that, despite statutory language permitting \u201cany person\u201d to file a Lanham Act claim, the \u201czones-of-interests test\u201d requires courts to presume \u201cthat a statutory cause of action extends only to plaintiffs whose interests \u2018fall within the zone of interests protected by the law invoked.\u201d[33]<\/a><\/p>\n The Third Circuit will have to decide whether to interpret Section 10(b)\u2019s charging requirement with traditional and modern tools of statutory interpretation or, instead, rely on a single sentence of dictum that predates the statute\u2019s aggrievement language.<\/p>\n Personal Jurisdiction<\/strong><\/p>\n NLRB\u2019s decision to accept Joel Fleming\u2019s charge, and prosecute its case, in Region 2 injected a novel issue of personal jurisdiction into the case. A region\u2019s personal jurisdiction over a charged party is scarcely an issue because NLRB rules require a charging party to file a charge \u201cwith the Regional Director in which the alleged unfair labor practice has occurred or is occurring.\u201d[34]<\/a> But the Board\u2019s willingness to flout its own rules to prosecute FDRLST created an extra constitutional issue.<\/p>\n NLRB has delegated its authority to regional directors across 32 regions with distinct geographic jurisdictions.[35]<\/a> FDRLST challenged Region 2\u2019s authority to hale the company into a tribunal without any connection to the case. The Board\u2019s sole response was that it has nationwide jurisdiction and is not bound by Article III.<\/p>\n Personal jurisdiction, however, is a matter of individual liberty that derives from the Due Process Clause\u2014not from Article III.[36]<\/a> Over the centuries, the Supreme Court has adhered to a \u201cgeneral principle\u201d[37]<\/a> that a sovereign\u2019s decision to divide its authority amongst districts \u201cnecessarily confines\u201d[38]<\/a> a local tribunal\u2019s jurisdiction to its regional boundaries. As Justice Joseph Story explained, regional limitations on a tribunal\u2019s exercise of personal are not an issue of sovereignty:<\/p>\n It matters not, whether it be a kingdom, a state, a county, or a city, or other local district.\u00a0 If it be the former, it is necessarily bounded and limited by the sovereignty of the government itself, which cannot be extraterritorial; if the latter, then the judicial interpretation is, that the sovereign has chosen to assign this special limit, short of his general authority.[39]<\/a><\/p>\n As administrative agencies proliferated, Justice Louis Brandeis reaffirmed the \u201cdefault rule from common law,\u201d from which courts should not \u201clightly assume[] that Congress chose to depart.\u201d[40]<\/a> In Robertson v. Railroad Labor Board<\/em>, Justice Brandeis rejected the government\u2019s attempt to ignore regional boundaries when issuing an administrative subpoena.[41]<\/a> He said that this \u201cgeneral rule\u201d was \u201cin accordance with the practice at the common law,\u201d and that courts should not \u201clikely \u2026 assume[] that Congress intended to depart from a long-established policy.\u201d[42]<\/a><\/p>\n Like NLRB, the Railroad Labor Board had nationwide jurisdiction and could \u201chold hearings at any place within the United States.\u201d[43]<\/a> But the Court saw \u201cno reason \u2026 why Congress should have wished to compel every person summoned either to obey the Board\u2019s administrative order without question, or to litigate his right to refuse to do so in such district, however remote from his home or temporary residence, as the Board might select.\u201d[44]<\/a> \u201cIt would be an extraordinary thing,\u201d the Court concluded, \u201cif, while guarding so carefully all departure from the general rule, Congress had conferred the exceptional power here invoked upon a board whose functions are purely advisory.\u201d[45]<\/a> More recently, the Court has again reiterated that \u201cspecific legislative authorization of extraterritorial service of summons was required for a court to exercise personal jurisdiction over a person outside the district.\u201d[46]<\/a><\/p>\n In FDRLST\u2019s case, NLRB has failed to identify any specific legislative authorization for its regions to exercise personal jurisdiction beyond their boundaries.[47]<\/a> That the Board \u201cchose[] to assign\u201d a \u201cspecial limit, short of [its] general authority,\u201d and that the Board\u2019s own rules didn\u2019t even allow the case to proceed in Region 2, severely undermines that region\u2019s exercise of jurisdiction over FDRLST. The case is all set up for the Third Circuit to be the first court to address the due-process limitations on a federal agency\u2019s extraterritorial exercise of jurisdiction.<\/p>\n First Amendment<\/strong><\/p>\n Over 50 years ago, the Supreme Court considered how the First Amendment restricts NLRB\u2019s ability to prosecute employer speech. Gissel Packing<\/em> explained that the NLRA \u201cmerely implements the First Amendment by requiring that the expression of \u2018any views, argument, or opinion\u2019 shall not be \u2018evidence of an unfair labor practice,\u2019 so long as such expression contains \u2018no threat of reprisal or force or promise of a benefit[.]\u2019\u201d[48]<\/a> To avoid infringing the First Amendment, NLRB must <\/em>consider the context of the particular labor relationship.[49]<\/a> The Court also emphasized that NLRB\u2019s policies at the time imposed a \u201cduty to focus on the question: \u2018What did the speaker intend and the listener understand?\u2019\u201d[50]<\/a> Many courts of appeals, however, have ignored that last portion about employer intent, and upheld NLRB\u2019s whittling away of Gissel Packing<\/em>.[51]<\/a> Because the test is whether an objective employee would feel threatened, those courts have held that an employer\u2019s subjective intent is irrelevant.[52]<\/a> But even those courts still require NLRB to consider contextual evidence.[53]<\/a><\/p>\n FDRLST\u2019s Third Circuit case asks just how much context NLRB must consider to avoid violating the First Amendment. As mentioned, the General Counsel withdrew its subpoenas of FDRLST employees and put forward no evidence other than Domenech\u2019s tweet and some articles to show that The Federalist <\/em>has an anti-union viewpoint. On appeal, the Board declined to consider the articles (as well as the employee affidavits saying the tweet was an obvious joke), leaving Domenech\u2019s tweet as the only evidence.<\/p>\n In FDRLST\u2019s view, the Board\u2019s refusal to consider any context of the employment relationship at issue, or how a FDRLST employee would have perceived the tweet, violated the First Amendment standard established in Gissel Packing<\/em>. Relying only on a dictionary of idioms, the Board insisted that Domenech\u2019s joke about sending employees \u201cback to the salt mine\u201d cannot possibly be read as anything other than a threat.[54]<\/a><\/p>\n At oral argument before the Third Circuit, Judge Thomas Hardiman pressed the Board on whether it has ever before found an employer\u2019s speech threatening based on so little contextual evidence: \u201cwhere is the evidence in this record that the ALJ or the Board considered the context in which this tweet was issued? All the facts and circumstances surrounding the tweet including when it was made, how many people worked at the company, all that sort of thing. It seems like a pretty thin record as to whether \u2026 the tweet was contextualized. \u2026 I\u2019m asking, where? Please point to the ALJ\u2019s opinion, the Board\u2019s opinion, to give us some confidence that this tweet was contextualized and not viewed in a vacuum.\u201d[55]<\/a> Judge Hardiman also expressed concern that employer speech on social media presented new challenges and questioned whether this case would just be \u201ca one off.\u201d[56]<\/a> But this case is not a one off. In fact, this isn\u2019t even the only charge Joel Fleming has filed\u2014he charged another conservative publication as well.[57]<\/a><\/p>\n For his part, Judge Paul Matey identified the link between NLRB allowing a stranger to file a charge and the lack of contextual evidence. Judge Matey saw how these two points would combine to broaden NLRB\u2019s powers in future investigations based on \u201ca very creative and novel interpretation\u201d of the Board\u2019s power\u2014\u201c[o]ne that extends to expressions that are clearly understood by reasonable speakers of English as humor, because they might have the potential to influence those employee relationships that as we said were not really employer relationships \u2018cause they were brought by [a] third party.\u201d[58]<\/a><\/p>\n It seemed from oral argument that the panel appreciated that NLRB\u2019s prosecution of FDRLST\u2014based solely on a stranger\u2019s charge and the face of a tweet\u2014was an expansion of the agency\u2019s enforcement authority. With so many dispositive issues at play, though, it\u2019s anyone\u2019s guess how the panel might decide the case.<\/p>\n <\/p>\n <\/p>\n [1]<\/a>* The authors represent FDRLST Media, LLC, in its case against NLRB.\u00a0 They would like to specially acknowledge Aditya Dynar for his work on this case during his time at the New Civil Liberties Alliance.<\/p>\n [2]<\/a> Twitter Event, Vox Media employees stage walkout during contract efforts, Twitter (June 6, 2019), https:\/\/bit.ly\/3IBB5xq.<\/p>\n [3]<\/a> Ben Domenech (@bdomenech), Twitter (June 6, 2019, 11:39 PM), https:\/\/bit.ly\/3yIKRcx.<\/p>\n [4]<\/a> Inez Feltscher Stepman (@InezFeltscher), Twitter (June 7, 2019, 9:30 AM), https:\/\/bit.ly\/3J47xsh; Inez Feltscher Stepman, The Federalist, https:\/\/bit.ly\/3J3VqLZ (last visited Dec. 17, 2021).<\/p>\n [5]<\/a> Judy Berman (@judyberman), Twitter (June 7, 2019, 1:50 PM), https:\/\/bit.ly\/33N13xW.<\/p>\n [6]<\/a> Samer (@Samer), Twitter (June 7, 2019, 12:13 PM), https:\/\/bit.ly\/32f1KPZ.<\/p>\n [7]<\/a> At the time of publication, Joel Fleming\u2019s Twitter bio was, \u201cA Bernie-supporting class action lawyer in Massachusetts with no ties to The Federalist or anyone who works there.\u201d Joel Fleming (@jfleming2870), Twitter, https:\/\/bit.ly\/3pbX2LM (last visited Dec. 17, 2021). Fleming has made a thing of filing charges against Bens who have different views than him. \u00a0In 2020, he accused Ben Shapiro of violating the NLRA, before ultimately withdrawing the charge. Jerry Lambe, Federal Labor Agency Dismisses \u2018Frivolous Charges\u2019 Against Ben Shapiro and <\/em>The Daily Wire, Law & Crime Blog (May 17, 2021, 5:34 PM), https:\/\/bit.ly\/3E930kI.<\/p>\n [8]<\/a> 29 U.S.C. \u00a7\u00a0160(a).<\/p>\n [9]<\/a> Id. <\/em><\/p>\n [10]<\/a> Id.\u00a0 <\/em><\/p>\n [11]<\/a> Fleming also attempted to serve FDRLST at some address in Chicago, another location with no connection to the company.<\/p>\n [12]<\/a> 29 C.F.R. \u00a7\u00a0102.10.<\/p>\n [13]<\/a> As a former NLRB general counsel has said, the notion that somebody on the street could just file a charge was \u201ca joke at the board \u2026 but that rarely if ever happens\u201d and \u201c99.9999%\u201d of the charges filed were by people connected to the labor relationship. Braden Campbell, Federalist Faces Tall Task in Fighting NLRB\u2019s Tweet Ruling<\/em>, Law360 Emp\u2019t Auth. (Nov. 9, 2021, 11:15AM), https:\/\/bit.ly\/3pfo30K.<\/p>\n [14]<\/a> NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).<\/p>\n [15]<\/a> NLRB\u2019s current test ignores the type of company and the business it produces. By doings so, the Board\u2019s \u201cobjective\u201d test disfavors companies that publish content or advocate for policies that are critical of unions and, consequently, attract employees of like mind. In other words, the Board creates a fiction in which the objective FDRLST employee and the objective Vox Media employee engaged in labor negotiations would perceive an anti-union joke the same way.<\/p>\n [16]<\/a> The First Amendment protects editorial rights, making the Board\u2019s initial discovery demands particularly egregious. See<\/em>, e.g.<\/em>, Miami Herald Publ\u2019g Co. v. Tornillo, 418 U.S. 241 (1974); New York Times Co. v. Sullivan, 376 U.S. 254 (1964).<\/p>\n [17]<\/a> FDRLST Media, LLC and Joel Fleming, Case 02-CA-243109, Order at 1 (Feb. 7, 2020) available at<\/em> https:\/\/bit.ly\/3yOxvv9.<\/p>\n [18]<\/a> Id.<\/em> at 2.<\/p>\n [19]<\/a> See<\/em> FDRLST Media, LLC and Joel Fleming, Case 02-CA-243109, Affidavit of Madeline Osbourne (Feb. 7, 2020); FDRLST Media, LLC and Joel Fleming, Case 02-CA-243109, Affidavit of Emily Jashinsky (Feb. 8, 2020). These same employees also attempted to file an amici curiae<\/em> brief before the Board, but NLRB rejected their brief. The Third Circuit, however, permitted them to participate as amici curiae<\/em> on appeal.<\/p>\n [20]<\/a> FDRLST Media, LLC and Joel Fleming, Case 02-CA-243109, Decision at \u00b6 25 (Apr. 22, 2020) available at<\/em> https:\/\/bit.ly\/3GXlbf5.<\/p>\n [21]<\/a> FDRLST Media, LLC and Joel Fleming, 370 NLRB No. 49 (Nov. 24, 2020). The only exceptions the Board took with ALJ Chu\u2019s decision were that he was too easy on FDRLST: he shouldn\u2019t have let FDRLST employees submit affidavits, and he should have made FDRLST order Domenech to delete his tweet. Id.\u00a0 <\/em><\/p>\n [22]<\/a> The company also challenged the Board\u2019s remedy of requiring FDRLST to require Domenech to delete his tweet and argued that the Court owed no deference to NLRB.<\/p>\n [23]<\/a> Barron v. City of Balt., 32 U.S. 243, 248 (1833).<\/p>\n [24]<\/a> Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 888-89 (2019).<\/p>\n [25]<\/a> Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 101-05 (1979).<\/p>\n [26]<\/a> 93 Cong. Rec. 6494, 6505 (1947).<\/p>\n [27]<\/a> Nat\u2019l Labor Relations Board v. Indiana & Michigan Electric Co., 318 U.S. 9 (1943).<\/p>\n [28]<\/a> Id. <\/em>at 18.<\/p>\n [29]<\/a> Id.<\/em> at 17-18.<\/p>\n [30]<\/a> 29 C.F.R. \u00a7 102.9.<\/p>\n [31]<\/a> See, e.g.<\/em>, Thompson v. North American Stainless, LP, 562 U.S. 177 (2011).<\/p>\n [32]<\/a> Lexmark Int\u2019l, Inc. v. Static Ctrl. Components, Inc., 572 U.S. 118, 127 (2014).<\/p>\n [33]<\/a> Id. <\/em>at 129-30.<\/p>\n [34]<\/a> 29 C.F.R. \u00a7\u00a0102.10.<\/p>\n [35]<\/a> See <\/em>29 U.S.C. \u00a7\u00a0154(a) (authorizing the Board to delegate its authority to regional directors); 29 C.F.R. \u00a7\u00a0102.1(d) (\u201cRegion means that part of the United States or any territory thereof fixed by the Board as a particular region.\u201d); see also <\/em>1 NLRB Ann. Rep. at 4, 16 (1936) (\u201cThe [pre-NLRA] Board \u2026 established 20 regional boards \u2026 to adjust cases and hold hearings in the regions where the controversies arose, and thus expedite the cases and enable the parties to avoid the burden of coming to Washington.\u201d).<\/p>\n [36]<\/a> Ins. Corp. of Ire. v. Compagnie de Bauxites de Guinee, 456 U.S. 694, 702 (1982) (\u201cThe requirement that a court have personal jurisdiction flows not from Art. III, but from the Due Process Clause. \u2026 It represents a restriction on judicial power not as a matter of sovereignty but as a matter of individual liberty.\u201d). Because personal jurisdiction is a due-process requirement, it matters not whether the tribunal is part of a state or the federal government. See also <\/em>Mussat v. IQVIA, Inc., 953 F.3d 441, 446 (7th Cir. 2020) (\u201c[I]n federal court it is the First Amendment\u2019s Due Process Clause that is applicable, but the mention of the Fourteenth Amendment ma[kes] no different here.\u201d); cf.<\/em> Robertson v. R.R. Labor Bd., 268 U.S. at 623 (\u201cNo distinction has been drawn between the case where the plaintiff is the Government and where he is a private citizen.\u201d).<\/p>\n [37]<\/a> Picquet v. Swan, 19 F. Cas. 609, 611 (C.C. D. Mass 1828) (Story, J.).<\/p>\n [38]<\/a> Ex parte Graham, 10 F. Cas. 911, 912 (C.C. E.D. Pa. 1818) (Washington, J.).<\/p>\n [39]<\/a> Picquet, 19 F. Ca. at 611.<\/p>\n [40]<\/a> Robertson v. R.R. Labor Bd., 268 U.S. 619, 626 (1925).<\/p>\n [41]<\/a> Id.<\/em><\/p>\n [42]<\/a> Id. <\/em><\/p>\n [43]<\/a> Id. <\/em><\/p>\n [44]<\/a> Id. <\/em><\/p>\n [45]<\/a> Id. <\/em>at 627.<\/p>\n [46]<\/a> Omni Capital Int\u2019l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 109 (1987).<\/p>\n [47]<\/a> Section 10(e) limits the Board\u2019s authority to petition for judicial enforcement to \u201cwithin any circuit or district [court,] respectively, wherein the unfair labor practice in question occurred or wherein such person resides or transactions business[.]\u201d\u00a0 29 U.S.C. \u00a7\u00a0160(e); see also id. <\/em>\u00a7 161(2) (limiting the Board\u2019s enforcement of subpoenas to federal courts \u201cwithin the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person \u2026 is found or resides or transacts business\u201d).<\/p>\n [48]<\/a> NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).<\/p>\n [49]<\/a> Id. <\/em><\/p>\n [50]<\/a> Id.<\/em> at 619.<\/p>\n [51]<\/a> See, e.g.<\/em>, Stein Seal Co. v. NLRB, 605 F.2d 703, 706 (3d Cir. 1979) (\u201cThe relevant inquiry is not Dr. Stein\u2019s intent[.]\u201d).<\/p>\n [52]<\/a> See id. <\/em><\/p>\n [53]<\/a> See, e.g.<\/em>, Hedstrom Co. v. NLRB<\/em>, 629 F.2d 305, 314-15 (3d Cir. 1980) (\u201cThis exchange occurred during a discussion of the employee\u2019s union activities. Moreover, it took place in a context that included previous coercive interrogatories of employees regarding union activities and previous solicitations by company officials for the purpose of inducing employees to abandon such activities.\u201d); NLRB v. Garry Mfg. Co.<\/em>, 630 F.2d 934, 945 (3d Cir. 1980) (considering an employer\u2019s statements \u201c[i]n the context of the election campaign\u201d).<\/p>\n [54]<\/a> FDRLST Media, LLC and Joel Fleming, 370 NLRB No. 49, n.4 (Nov. 24, 2020).<\/p>\n [55]<\/a> Oral Argument at 23:05 \u2013 24:16, FDRLST Media v. NLRB, No. 20-3434 (3d Cir., argued Nov. 10, 2021), available at <\/em>https:\/\/bit.ly\/331HIIV.<\/p>\n [56]<\/a> Id. <\/em>at 32:40 \u2013 33:04.<\/p>\n