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ACLU Joins Trader Joe’s, SpaceX in
Questioning NLRB’s Constitutionality
In a case stemming from the alleged wrongful termination of an
employee, the ACLU argues that the NLRB general counsel was
unconstitutionally appointed.
The National Labor Relations Board's top prosecutor, Jennifer Abruzzo, at
Washington on June 13, 2022. AP/Amanda Andrade-Rhoades
RUSSELL PAYNE
Tuesday, March 12, 2024
16:26:00 pm
Last year, the American Civil Liberties Union was accused of
wrongfully firing an employee, Katherine Oh. The civil rights
group then proceeded to argue that the past three years of
National Labor Relations Board changes should be undone,
saying that the board’s general counsel, Jennifer Abruzzo,
was unconstitutionally appointed.
The sweeping arguments about the constitutionality of the
agency mirror constitutional arguments that have been
leveled against the NLRB by companies like Amazon, Trader
Joe’s, and SpaceX and which have been made in the past by
conservative activists, marking an unusual turn for an
organization known for championing civil rights and other
liberal causes.
The ACLU’s claims about the constitutionality of Ms.
Abruzzo’s appointment could cause chaos at the agency if
adopted, according to lawyer Seth Goldstein, a partner at the
New York City law firm Julien, Mirer, Singla and Goldstein.
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“It’s very eerie in that it’s similar to what SpaceX is doing in
trying to disqualify the board on the basis of some
constitutional issue,” Mr. Goldstein says. “I find it to really be
strange because the ACLU was set up to defend workers after
World War I and now they’re making the same arguments
right-wing conservatives are.”
In an apparent concession of the weakness of the
constitutionality argument, the ACLU later amended their
answer in the case, dropping the constitutionality argument
entirely.
In 2023, Ms. Oh, who served as a senior policy counsel at the
ACLU, brought a wrongful termination complaint against the
ACLU, contending that she was fired for complaining about
management and working conditions, two protected
activities under the National Labor Relations Act. In the
resulting NLRB case, the nonprofit is now seeking to
dramatically reshape the NLRB’s arbitration policies.
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In the context of labor disputes, an arbitration agreement
refers to an arrangement between employees and employers
to settle disputes out of court. Voluntary arbitration refers to
when the two parties agree to settle a dispute out of court,
and mandatory arbitration refers to when an employment
contract requires employees to settle disputes out of court.
Sometimes these contracts are binding, even for former
employees.
Under current precedent, an arbitration agreement must be a
part of a collective bargaining agreement between the
company — in this case, the ACLU — and the labor union that
represents its employees, the ACLU Staff United.
Some companies, the ACLU included, have employees sign
individual arbitration agreements in their contracts.
However, these agreements have not historically been
allowed to be used to prevent employees from bringing a
complaint to the NLRB.
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The ACLU, however, is waging a legal campaign aimed at
requiring the NLRB to enforce these individual arbitration
agreements. Though the NLRB has so far denied the ACLU’s
attempts to send Ms. Oh’s case to arbitration, it could
dramatically reshape the power dynamics between
employees and employers if the ACLU is ultimately
successful.
The ACLU’s arguments around forced arbitration also stand
in stark contrast to some of the organization’s own purported
values. In May of 2011, the ACLU championed the Arbitration
Fairness Act, which, according to a letter signed by the ACLU,
amounts to an employee signing away their legal rights.
“This important legislation would end the predatory practice
of forcing non-union employees and consumers to sign away
their rights to legal protections and access to the courts,” the
letter reads. “Forced arbitration is proliferating in
employment and everyday consumer contracts.”
On top of attempting to set a new precedent around forced
arbitration, the ACLU arguments originally presented
around the the general counsel of the NLRB, Ms. Abruzzo,
and her authority echo other arguments brought by major
companies about the NLRB’s constitutionality.
Their reasoning goes that President Biden unconstitutionally
removed the previous general counsel, Peter Robb, and thus
could not have constitutionally appointed Ms. Abruzzo.
While the effects of a court agreeing with the NLRB would
depend on the specifics of the ruling, it’s possible that a win
from the ACLU could not only expand forced arbitration but
also roll back most of the Biden administration’s changes at
the NLRB.
The ACLU has justified the termination of Ms. Oh by citing
three allegedly racist comments made by her, an Asian
woman, regarding Black employees at the ACLU, including a
former supervisor as well as Ms. Oh’s reaction to attempts
from the human resources department to discipline her
before she was fired.
The union’s representative in the process, Rick Bialczak,
maintained in a filing that Ms. Oh’s comments “do not
constitute harassment, let alone racial harassment, and
cannot serve as just cause for termination.”
The ACLU’s claims around mandatory arbitration were shot
down by the board, and if history is any guide, are unlikely to
succeed even if appealed. Similar arguments have been
brought before Republican-appointed boards in the past and
were not adopted.
In a filing, attorneys for the ACLU write that for “all the
bluster expressed by the General Counsel and the Charging
Party over the fact that the parties have not yet negotiated a
full collective bargaining agreement, they fail to cite a single
case in which the Board declined to defer to a procedure such
as” the arbitration clause in Ms. Oh’s contract.
In response to a request for comment from the Sun, the
ACLU offered an observation from a co-counsel in the case
and a former chairman of the NLRB in the 1990s, William
Gould.
Mr. Gould maintained that “The employee involved in this
case, represented at every step of the way by her union and its
counsel, voluntarily elected to pursue that remedy and the
argument that the NLRB should defer to that process, in our
view, is an entirely reasonable application of NLRB
precedents.”
In the SpaceX case, the company has argued that the
administrative agency is unconstitutional and thus should
not be able to take enforcement actions against companies,
including SpaceX.
Attorneys have also moved to get the NLRB proceedings put
on pause while they take the constitutionality question to
court. If successful, this could also set the precedent of
appealing NLRB cases to courts before a resolution,
effectively rendering the agency toothless.
Other businesses like Amazon and Traders Joe’s have joined
SpaceX in arguing that the NLRB is unconstitutional. Now,
the ACLU appears to be the newest “progressive
organization” to “publicly mask themselves as defenders of
workers rights,” in Mr. Goldstein’s words.
“I find it extraordinary and disappointing that the ACLU is
taking this position and undermining the NLRB in a similar
fashion to what Amazon, SpaceX, and Starbucks is doing,” Mr.
Goldstein says.
ACLU Staff United did not immediately respond to a request
for comment from the Sun.
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