Expanding Mandatory Arbitration

Digging into the case reveals something even more surprising than run-of-the-mill hypocrisy from a progressive employer. In this proceeding, the ACLU is not merely attempting to have the case deferred to arbitration under existing board law. It is also trying to expand board law to force workers into arbitration in circumstances where they currently have a right to have their disputes heard by the NLRB.

To understand the stakes of this fight, it is useful to take a step back and explain what arbitration deferral is in the first place.

Some employer misconduct both violates the National Labor Relations Act (NLRA) and violates the terms of a collective-bargaining agreement (CBA) that the employer has with a union. In those circumstances, if the CBA has an arbitration process for contract disputes, the NLRB will generally direct the parties to use their arbitration process, not the NLRB process, to settle their dispute. If the arbitrator does a terrible job, the NLRB still reserves the right to pursue the case itself, but the arbitration process is typically able to resolve the misconduct in a way that complies with the NLRA and the parties’ CBA.

One crucial piece of this arrangement is that the arbitration agreement has to be part of a CBA with a union. Employers that have their individual workers sign individual arbitration agreements in order to work for them cannot use those agreements to prevent workers from bringing unfair labor practice charges (ULPs) to the NLRB.

The ACLU is trying to change this. It has now submitted one answer, two motions (I, II), one request for a special permission to appeal, and two replies (I, II) all arguing that the NLRB should, for the first time ever, require that victims of ULPs be forced into arbitration even if the arbitration agreement they are subject to is an individual one, not one that was collectively bargained.

Needless to say, if the ACLU is successful in establishing this precedent, it would strike a huge blow against workers’ rights across the country and make union organizing much more difficult. This is especially true in light of the recent Cemex decision, which expands the ability of the NLRB to require employers to recognize and bargain with a union when the employer engages in ULPs during the union election process (See GC 24-01).

Invalidating Everything the Biden Board Has Done

In addition to trying to expand the scope of mandatory arbitration, the ACLU is also arguing that the current general counsel (GC) of the NLRB, Jennifer Abruzzo, was appointed unconstitutionally because President Biden did not have the right to remove her predecessor, Peter Robb, before his four-year term as GC had ended. Biden fired Robb on the first day of his presidency and is the first president to ever fire an NLRB GC.

According to the ACLU’s answer, because Robb was unconstitutionally fired, Abruzzo was unconstitutionally appointed and therefore lacks the authority to prosecute the ACLU for unfair labor practices. If this argument prevails, then it could potentially invalidate everything the Biden board has done as it is all dependent, in one way or another, on the actions taken by GC Abruzzo.

Why Is the ACLU Doing This?

Given that the ACLU is a progressive organization that sits in a broader ecosystem that includes the labor movement, it is hard to understand why it is pursuing such aggressive and reckless legal theories at the NLRB. Its posture becomes even more puzzling after you read the details of the underlying dispute, which seems to have no real stakes for the practical operation of the organization and appears to just be the result of a diversity, equity, and inclusion (DEI)–crazed HR department.

The dispute centers around the termination of ACLU staffer Katherine Oh. According to the ACLU:

[Ms Oh was] terminated for violation of her obligation to maintain a workplace free of harassment, including in her engaging in repeated hurtful and inciteful conduct for colleagues that impugns their reputation and her demonstration of a pattern of hostility toward people of color, particularly black men, and her significant insubordination.

What exactly did Ms Oh, an Asian woman, do that is being characterized like this?

1. After the national political director, a manager that Ms Oh and her colleagues had submitted complaints against, left the organization, Ms Oh joked in a meeting announcing the departure that “the beatings will continue until morale improves.” The ACLU DEI officer said this comment was racist because the former national political director is a black man.
2. Ms Oh said in a phone meeting that she was “afraid to raise certain issues” with her direct supervisor. This was also described as racist because that supervisor is a black man.
3. Ms Oh claimed that another manager “lied to her when she identified the members of management who had ultimate responsibility over whether to proceed with a particular campaign.” This was also racist because that manager is a black woman.

If you think I am being selective or mischaracterizing the claims here, I welcome you to read the arbitration transcript attached as Exhibit 3 here.

The ACLU fired her for this behavior, which is a problem because complaining about supervisors in a concerted way is protected activity under Section 7 of the NLRA, something that has not changed just because certain HR departments have realized that, in the current DEI-inflected environment, they can lodge baseless racism accusations against outspoken workers to provide cover for firing them.

Thus, on the merits, this is an open and shut ULP case. Ms Oh engaged in protected complaints about workplace conditions. The ACLU fired her explicitly in retaliation for those complaints and thereby violated Section 8(a)(1) of the NLRA.

Instead of owning up to this, the ACLU has decided to pay a fortune to management-side lawyer Kenneth Margolis to advance boutique legal theories arguing, not that the ACLU’s conduct respected Ms Oh’s Section 7 rights, but rather that the NLRB, either because of the constitution or the ACLU’s arbitration policy, has no authority to enforce Ms Oh’s rights. In the unlikely scenario where these theories succeed, the ACLU will strike a blow, not just against Ms Oh, but every worker across the country and the labor movement more generally.

It’s hard to imagine that the individuals and foundations that donate to the ACLU want to see the organization use their money to undermine workers’ rights like this. If the ACLU comes to its senses on this, it can back out of the case at any time by simply providing Ms Oh with reinstatement and backpay.