The ACLU Is Attempting to Limit the Speech Rights of All Private Sector Workers

ACLU wants the Trump NLRB to reverse speech-protecting rulings.

Back in 2024, I wrote about a curious case at the NLRB in which the American Civil Liberties Union 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-current 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 GC 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 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 NLRA. 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. In this short motion, the ACLU makes it clear that it wishes to submit a brief arguing that the Trump NLRB should overturn current NLRB precedent that expansively protects workers’ rights to complain about their working conditions in favor of narrower legal constructions that make it much easier for employers to fire workers for speaking up.

In so doing, the ACLU is targeting two discrete legal doctrines: (1) Board law pertaining to when speaking out in front of colleagues is considered protected activity and, (2) Board law pertaining to when an employer has the power to fire someone solely because they disapprove of the way an employee chose to speak out.

Meyers II

Historically, the first issue has been governed by Meyers II (1986), which held that the definition of protected concerted activity in the NLRA “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” This would include things like speaking out about working conditions in a staff meeting as an attempt to induce group action about those conditions. This rule was narrowed during the first Trump administration in Alstate Maintenance (2019) but was reinstated during the Biden administration in Miller Plastic Products (2023). In its motion, the ACLU is indicating its intent to argue that the Board should go back to the Alstate standard and rule that under Alstate, Oh’s conduct did not constitute protected concerted activity.

Atlantic Steel

The second issue was historically governed by Atlantic Steel (1979), which established a four-part test for determining when otherwise protected activity is done in such an “opprobrious” way that it ceases to be protected:

(1) the place of the discussion;

(2) the subject matter of the discussion;

(3) the nature of the employee’s outburst;

(4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

This test was applied fairly permissively so as to ensure that, outside of very extreme examples, workers were free to express themselves in whatever way they wished when raising issues about their working conditions.

The first Trump administration overruled this in General Motors (2020) and established a new rule stating employers were free to fire workers engaged in protected activity provided that the way they expressed themselves is something the employer would have fired them for regardless of whether they were talking about working conditions or some other topic. Under this new rule, so long as an employer generally prohibits impolite speech, it can legally fire someone for complaining about their working conditions in an impolite way.

The Biden administration reinstated the historical approach in Lion Elastomers (2023). The ACLU is indicating its intent to argue that the Board should go back to the General Motors rule and conclude that the ACLU could legally fire Oh for her protected activity because of the way Oh engaged in it. Under this sort of reasoning, because the ACLU claims to have very bizarre standards for what constitutes egregious speech — which apparently includes any speech that criticizes a nonwhite person — they could claim that, under General Motors, they are free to apply those bizarre standards to fire people who engage in protected activity.

Terrible for American Workers

Needless to say, if the ACLU succeeds in having the Board use this case as a vehicle for overturning Lion Elastomers and Miller Plastic Products, it will strike a huge blow against the speech rights of all private-sector employees. The range of things workers will be allowed to say to the public and to their bosses without risking termination will be significantly narrowed. This clearly flies in the face of what the ACLU claims to stand for as an institution, but apparently it is more than willing to torch the speech rights of tens of millions of Americans if doing so allows it to avoid reinstating a single worker that both an arbitrator and an NLRB ALJ have concluded they fired illegally.

Of course, it’s not too late for the ACLU to avoid being used by the Trump administration in this way. All it has to do is provide the relief that two different legal forums have already ordered them to provide and thereby end this case.