Audubon Society Argues NLRB Is Unconstitutional
More liberal non-profit madness.
Early last month, NLRB Region 2 issued a complaint against the Audubon Society, a lovable non-profit organization focused on the protection of birds. The complaint alleges that the Audubon Society repeatedly failed and refused to furnish information requested by the union representing its employees, unilaterally implemented changes to employee health insurance without bargaining, and discriminatorily provided a long list of new benefits only to its non-unionized staffers.
That the Audubon Society is allegedly treating its employees this way is troubling, but this is all fairly regular stuff that lots of bad employers do. Everything in the NLRB complaint is based on old, well-settled areas of Board law.
The Audubon Society’s answer to the complaint is wildly aggressive however. It contains six different arguments that the NLRB is acting unconstitutionally by trying to enforce the NLRA against the organization.
A couple of these arguments are the ones conservatives have already been pushing, including the argument that the NLRB’s Administrative Law Judges (ALJs) are unconstitutionally difficult to fire (see explanation here) and the argument that the NLRB process infringes on the constitutional right to a jury trial (see explanation here). Other arguments, such as the claim that the NLRB is violating the Audubon Society’s free speech rights are more novel, or, at minimum, not really the attack points the conservative legal movement are currently focused on.
When someone like Elon Musk does this kind of thing, it’s easy enough to understand why. He has conservative politics and would like to see labor rights rolled back. But, just like with the ACLU before, it is baffling why liberal non-profits pursue this kind of strategy. Does the Audubon Society really want to avoid cooperating with its staff union so much that it is willing to run a test case that, if successful, could destroy the labor rights of 100+ million people in the country? Do its crunchy environmentalist donors want them spending the organization’s budget on that legal project?
It’s truly insane behavior.
To be a fly on the wall in these attorney/client meetings... The initial proposal to include these paragraphs in the Answer is of course coming from the attorneys at Ogletree. The question is - how do they pitch it? To what extent is this just boilerplate language that big firms like Ogletree are plugging in all answers, just like "the complaint does not state a claim upon which relief can be granted" or do the attorneys make it clear to Audubon that these paragraphs in the Answer could fundamentally change the employment relationship at every private employer in the country? We'll never know exactly, but I'm sure some of this is being discussed at CLEs or conferences and panels for management attorneys.