Back in 2024, I wrote about a curious case at the National Labor Relations Board (NLRB) in which the American Civil Liberties Union (ACLU) was pursuing exotic legal theories that would, if adopted by the NLRB or courts, curtail the rights of workers across the country.
This included the theory that the then–general counsel of the NLRB, Jennifer Abruzzo, was illegally appointed and the theory that the NLRB must defer to private arbitration proceedings even in the absence of a collective-bargaining agreement. The former theory would have invalidated a large amount of precedent established by General Counsel Abruzzo, while the latter theory would have allowed employers to limit the rights of workers to pursue unfair labor practice charges at the NLRB.
The ACLU was pursuing these theories as part of a scorched-earth effort to not provide back pay and reinstatement to one of its former employees, Katherine Oh. Oh, along with her coworkers, had criticized the way certain managers treated employees and the ACLU fired her in response to those criticisms. In firing her, the ACLU claimed that Oh, who is herself nonwhite, was being racist by criticizing her likewise nonwhite bosses even though her statements contained no racial content at all.
Both a private arbitrator and an NLRB administrative law judge (ALJ) have since ruled in favor of Oh and against the ACLU. The arbitrator ruled that, in firing Oh, the ACLU had violated its own just-cause termination policy, while the ALJ ruled that, in firing Oh, the ACLU had violated Section 8(a)(1) of the National Labor Relations Act. Despite losing in both forums, the ACLU still has not reinstated or compensated Oh. Instead, they have opted to keep litigating against their former employee by appealing decisions and contesting remedy calculations.
Earlier this month, as part of their appeal of the NLRB ALJ decision, the ACLU filed a troubling motion asking the NLRB to allow the ACLU to file a supplemental brief to the board….
Auteur: Matt Bruenig
