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.

AP/Amanda Andrade-Rhoades
The National Labor Relations Board's top prosecutor, Jennifer Abruzzo, at Washington on June 13, 2022. AP/Amanda Andrade-Rhoades

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.

“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.

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.

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.

The New York Sun

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