The ACLU Is Attacking Free Speech at the NLRB

The NLRA created speech rights that the ACLU is attempting to undermine.

In my coverage (I, II) of the American Civil Liberties Union (ACLU) case at the National Labor Relations Board (NLRB), I have not really said anything about the free-speech implications of what the ACLU is doing. Despite this, in the many emails the organization has sent out to donors and journalists about me, the ACLU frequently insists that it is not trampling on free speech in this proceeding.

Here are snippets from three different ACLU emails I have seen about my coverage:

In this matter currently before the NLRB, the former employee’s right to free speech and her termination for cause should not be conflated. 

The ACLU is a free speech organization, at heart. We wholeheartedly support labor unions, the right to organize, the right to free speech, and with it – the right of workers to criticize the organization. It only makes the organization stronger.

For over a century, the ACLU has been a fierce advocate for free speech and expression, including in the workplace. Yet, we also know that free expression does not extend to creating hostile work environments based on race or any other protected characteristics. And that’s the case in this matter currently before the NLRB.

In reality, what the ACLU is doing in this NLRB proceeding is an attack on free-speech rights. This is true both as a matter of principle and as a matter of law.

Protected Speech Under the NLRA

Section 7 of the National Labor Relations Act (NLRA) gives employees the right to, among other things, “engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” This includes the right to criticize the behavior of supervisors provided that criticism is done in a concerted way. Criticism of supervisors is considered concerted in a variety of circumstances, including when an individual’s criticism expresses truly group concerns or is the logical outgrowth of concerns discussed with coworkers, as in Mitsubishi Hitachi Power Systems Americas.

Here, according to the ACLU’s own lawyers, former employee Katherine Oh made three concerted criticisms of her supervisors:

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.”

The ACLU admits that it fired Ms. Oh for making these criticisms. It is now trying to defend this firing by saying that, by making these criticisms, Ms. Oh was creating a racially hostile work environment.

As a general matter, it is possible for someone’s precise way of criticizing a supervisor to be so racist that, even though it may express a group concern about working conditions, it will not be protected by Section 7 of the NLRA. In Board law, where that line is remains somewhat fuzzy.

On the permissive side of things, in Arthur Young and Company (1988), the Board decided that two employees that used racial slurs when criticizing working conditions were nevertheless engaged in protected activity. On the less permissive side of things, in Google, Inc. (2018), the general counsel released an advice memo citing three cases where otherwise protected remarks were deemed unprotected because they included racial, sexist, or homophobic content, including one where a worker called their supervisor a “Klansmen,” another where a worker made sexually harassing remarks to a female strikebreaker, and a third where a worker directed an employee to “come out of the closet” in a newsletter criticizing working conditions.

Ms. Oh’s criticisms of her supervisors don’t contain any racial content in them at all. The ACLU’s reasoning for why they “create a hostile work environment” is solely that the supervisors she is making them against are black. If this were deemed a sufficient basis for finding that these criticisms are not protected by the NLRA, then that would clearly reduce the speech rights of workers. Specifically, it would severely curtail the rights of workers to criticize their bosses whenever those bosses belong to a protected class. This could include nonwhite bosses, female bosses, gay bosses, old bosses, and disabled bosses, among others.

But here’s the thing: the ACLU knows that this is, legally speaking, nonsense. Regardless of what they may say to journalists and donors who email them about it, their actual strategy in the NLRB proceeding is not to argue that these statements are unprotected in the same way that the statements discussed in Google, Inc. were. Instead, they have focused their efforts almost entirely on their theory that the NLRB should require Ms. Oh to have her case heard by a private arbitrator rather than the NLRB. This would also limit employees’ free-speech rights — or at least limit the ways in which they can vindicate them — because it would limit all of the rights employees have under the NLRA.

No matter how you cut it, the ACLU’s actions in this case are straightforwardly an attack on the speech rights of workers. This is a shame because, as the ACLU notes on its website:

While the First Amendment applies only to state action, the values that animate our right to free speech and free association apply to all of us, regardless of where we work. The marketplace of ideas works only if we are all free to speak vigorously and without fear about the issues of the day. This often happens in the workplace, so employee speech and privacy must be protected.

The ACLU-as-employer should listen to the ACLU-as-advocate and stop pursuing this ridiculous case.