Regional Director Finds Merit in Recent Charge Against ACLU

AJ Hikes's Reaction to Oh Case Allegedly Violated NLRA.

The American Civil Liberties Union (ACLU) has been pursuing a bizarre legal strategy at the National Labor Relations Board (NLRB) against a former employee who filed an unfair labor practice (ULP) charge against the ACLU after the organization fired her for criticizing her supervisors (I, II, III). After the case started getting attention, AJ Hikes, the second-in-command at the ACLU, allegedly instructed staffers not to talk about the ULP charge pending against the organization, which resulted in another ULP charge being brought against the ACLU late last month.

On April 16, the NLRB attorney responsible for the case involving the former employee filed a motion with the administrative law judge (ALJ) that reveals the precise instruction given by Hikes to ACLU staff. According to the motion, Hikes made the following statements in a live chat:

Normally, we are not able to comment on personnel matters, but since this has been reported in the Times, it's a matter of quite public record, and so I just have one or two things I would like to say. This case is principally about a former employee who demonstrated a consistent pattern of anti-Blackness in this organization and I don't want this to get lost in the conversations that we have about this outside of this space. Over and over and over again, this person was counseled on that behavior. And so I don't want it to be seen through a myopic lens as it's been represented here as somebody who's deeply involved in it. And we will not tolerate treatment of employees like that, certainly on my watch, at this organization, at all. I'm not going to get into a back-and-forth with folks, especially non-Black folks frankly, about what anti-Blackness is and is not, but I will say very clearly that is what's at the heart of this case.

. . .

The tone in this chat is all the way out of pocket. Y'all got me on the right day today. I understand frustration. I understand the need to advocate. I understand that. And we are your colleagues. We are your colleagues. Please, please, please, please try to come at your colleagues with some sense. That is all I have to say. Laugh all you want. But baby, I'm not the one or the two or the three. Please, please, please, please try to get this together, y'all. Office hours is a very important space for us to be able to connect, for us to be able to answer questions, for us to be able to engage around each other's work. We are not coming here to harass people, to humiliate people, to drag people, to act a fool. Please, please, please try to treat each other a little bit better than this.

Before getting into the problem with saying this kind of thing to workers, it is worth recalling that the “anti-blackness” Hikes is referring to was former employee Katherine Oh engaging in the following conduct:

1. After the national political director, a manager that Ms. Oh and her colleagues had submitted complaints against, left the organization, Ms. Oh stated that, even after his departure, “the beatings will continue until morale improves.”

2. Ms. Oh said in a phone meeting that she was “afraid to raise certain issues” with her direct supervisor.

3. Ms. Oh claimed that another manager “lied to her when she identified the members of management who had ultimate responsibility over whether to proceed with a particular campaign.”

ACLU acknowledges that there is no racial content to any of these criticisms, but Hikes apparently believes that, because the supervisors being criticized are black, that makes the criticisms anti-black. The ACLU also appears to believe that it has a right to fire Ms. Oh for making these complaints despite the fact that criticizing working conditions is protected activity under the National Labor Relations Act (NLRA).

The bolded phrase “I'm not the one or the two or the three” is apparently a reference to a Nicki Minaj song where Minaj is engaged in braggadocio about being the best:

I'm on a whole 'nother level, these bitches is out of they league

These bitches ain't battin' like me

You bitches ain't badder than me

You bitches don't count and these bitches can't count, I am not the one, two, or the three

You bitches look up to me

You said you look up to her, but really you look up to me

The problem with the new statements made by Hikes is, as noted in the motion, that they threaten employees with unspecified reprisals for raising concerns about working conditions and constitute an unlawful overly broad directive to employees not to raise concerns about working conditions to management.

In addition to likely being separate unfair labor practices, Hikes’s coercive statements here also could cause problems for ACLU’s already very weak case against Ms. Oh as they reveal a pattern of hostility to protected activity and specifically the kind of protected activity that Ms. Oh engaged in, which is raising issues about working conditions to supervisors.

Beyond the legal implications of this, Hikes’s statements here appear to confirm that ACLU’s management — and Hikes in particular — has (or at least pretends to have) a peculiar view about anti-blackness that leads them to think they can crack down on workers in ways that are actually illegal.

As an outsider looking in, it is becoming increasingly hard to understand what the ACLU is doing in this dispute and why the top management of the organization is not being reigned in by the board of directors and donors. The longer this whole thing goes on, the more discredited ACLU becomes.