NLRB Judge Found the ACLU Illegally Fired Worker for Criticizing Management

Workers have a right to complain about working conditions.

Since March, I have been following a case at the National Labor Relations Board (NLRB) involving the American Civil Liberties Union (ACLU) firing one of its employees for criticizing the way some of the organization’s management treated its workers (I, II, III). One of the remarkable things about the case was ACLU’s claim that the employee in question — Kate Oh — was acting in a racist manner because the bosses she criticized were black, which the organization argued gave it the right to fire her.

Yesterday, an administrative law judge (ALJ) at the NLRB decided in favor of Ms. Oh, finding that the ACLU both refused to transfer and then subsequently fired Ms. Oh for engaging in the protected activity of criticizing her working conditions. Interestingly, the 73-page decision does not merely conclude that the ACLU’s conduct violated the National Labor Relations Act (NLRA). It also makes it clear that Ms. Oh was not merely a habitual complainer, but actually had very legitimate grievances against her managers, grievances shared by many of her coworkers.

Under the longstanding Wright Line framework, to prove that an employer took an adverse action against an employee for engaging in protected activity, one must show that the worker engaged in such activity, that the employer had knowledge of such activity, and that the employer bore animus towards such activity. In this case all three elements were clearly present:

1. Ms. Oh engaged in a long series of protected complaints against management, many of which she presented to management after discussing them with coworkers and in the presence of coworkers. This included complaining that manager Ronnie Newman evinced an “overall pattern of abuse, bullying, active contempt, and other forms of random punching down . . . that [she had] not done anything to deserve.”
   

2. The ACLU clearly knew about these complaints as they were made directly to management, often in writing. The employer also knew that the complaints were not solely coming from Ms. Oh as she indicated, when making them, that they were group complaints resulting from conversations with coworkers.
   

3. The ACLU clearly bore animus towards Ms. Oh’s protected activity because, in its reasoning for discharging her, it specifically cited tweets Ms. Oh had made that her bosses were “incompetent/abusive,” tweets that two of her coworkers liked. These tweets were protected activity, meaning that the ACLU admitted that it directly discharged her for protected activity.

The ACLU’s claim that Ms. Oh’s criticism of management was driven by anti-black racial animus was dispatched by the ALJ by noting that Ms. Oh, who is Asian, had also criticized non-black management. The ALJ also applied the Board law on social media postings to reject the ACLU’s claim that Ms. Oh’s way of communicating her dissatisfaction was somehow so egregious that, even though it was done concertedly and about a protected topic, it lost protection under the NLRA.

The most remarkable part of the decision comes on page 65 where the ALJ, for the first time I have seen in following this case, actually outlines why Ms. Oh and her colleagues were so mad at management:

The General Counsel, on the other hand, presented an abundance of evidence demonstrating that Oh was treated disparately from Newman. Oh and other female employees in NPAD complained about Newman’s disrespectful, sexist, and misogynistic behaviors for over two years. An outside investigation produced a report that validated employee complaints about a toxic work culture under Newman. The MRW [Consulting Group International, LLC] Report ruled-out sexism and misogyny on Newman’s part because the investigator found that the complaints, although widespread throughout NPAD, were not limited to protected-class individuals. In any event, the report was a devastating evaluation of the workplace within NPAD under Newman. Yet, the Respondent did not take any steps to separate him from the organization until Vanity Fair Magazine inquired about the MRW Report.

So it wasn’t really that Ms. Oh was a quarrelsome, outspoken employee, prone to complaining and criticism. Nor is it that Ms. Oh is a covert racist who attacks all black bosses while carefully avoiding saying explicitly racist language. It’s that the ACLU manager in question, Ronnie Newman, actually was mistreating people, not just according to Ms. Oh and her colleagues, but also according to an outside consulting group hired by the ACLU to investigate the matter.

It is hard to overstate how bad this all reflects on the ACLU. The free-speech organization fired a worker for engaging in protected speech as part of airing a legitimate grievance against management. They tried to cover for this straightforward retaliation by trumping up racism accusations against the employee and then spending probably in excess of $1 million of donor money paying a management-side lawyer to litigate the issue for over 2 years. And they may not even be done with it. In the aftermath of this decision, the ACLU still has the opportunity to waste even more money and even more time appealing this decision to the five-member Board and then to a circuit court. Hopefully they finally come to their senses on this, follow the ALJ’s recommended order to reinstate Ms. Oh with backpay, and stop pursuing these nakedly illegal tactics.