The ACLU's Push to Expand Arbitration Deferral Needs to Stop

ACLU's management needs to wake up or be woken up.

Last week, I wrote a piece about a strange case the American Civil Liberties Union (ACLU) is litigating at the National Labor Relations Board (NLRB). The most troubling part of the case is that the ACLU is advancing a novel legal theory that, if accepted, would reduce the rights of workers across the country to bring unfair labor practice (ULP) charges to the NLRB. My prior piece included a high-level explanation of what the ACLU is doing. Here, I get more into the details.

Normal Arbitration Deferral

Section 10(a) of the National Labor Relations Act (NLRA) states that:

The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.

What’s important about this section is that it establishes that the NLRB is not required by law to defer the adjudication of unfair labor practice charges to private arbitration. The NLRB has discretionarily established that, in certain scenarios, it will defer ULP charges to arbitration. But it does not have to do that and, crucially, the NLRB alone gets to decide what scenarios it thinks are appropriate for deferral and what scenarios it thinks are not.

There are presently two scenarios in which the Board will defer a ULP charge to a private arbitration process. One is called Collyer deferral and the other is called Dubo deferral.

To determine whether Collyer deferral is appropriate, the Board looks at the six factors established in United Technologies:

(1) Whether the dispute arose within the confines of a long and productive collective-bargaining relationship;

(2) whether there was no claim of employer animosity to the employees' exercise of protected rights;

(3) whether the parties' contract provided for arbitration in a very broad range of disputes;

4) whether the arbitration clause clearly encompassed the dispute at issue;

(5) whether the employer had asserted its willingness to utilize arbitration, to resolve the dispute;

(6) and whether the dispute was eminently well suited to resolution by arbitration.

If Collyer deferral is not appropriate, then the Board may still defer the ULP charge to arbitration under Dubo deferral. Dubo deferral is appropriate where the victim of an alleged ULP has elected to use a grievance-arbitration process in a collective-bargaining agreement (CBA) to settle its ULP dispute. In the Dubo decision, the Board explained its rationale for deferring to arbitration in these kinds of cases:

The Board policy is to effectuate, wherever possible, the intent of Congress expressed in Section 203(d) of the 1947 Labor Management Relations Act, namely, "Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement."

Both Collyer and Dubo deferral specifically pertain to arbitration procedures established in CBAs. In all of its voluminous briefing in the case, the ACLU has not produced a single case where a ULP charge has been deferred to arbitration outside the confines of a CBA. In its initial two-page decision on the ACLU’s request for review, the Board cited two cases where the Board declined to defer to dispute resolution processes that were not established via CBAs.

The general counsel, administrative law judge Michael Rosas, and the Board itself have all indicated at this point that they do not believe that arbitration deferral is appropriate outside the confines of a CBA.

What Is the ACLU Doing Exactly?

The ACLU has produced a truly crazy amount of briefing in this case, but its first reply in support of deferral contains the simplest articulation of its main arguments, which are:

1. The Board has previously declined to defer to dispute resolution processes that were not established via CBAs, but the ACLU’s dispute resolution process is different because it features a “neutral, mutually selected arbitrator tasked with issuing a ‘final and binding’ determination.”

2. There are no cases where the Board has ever deferred to an arbitration provision outside of a CBA but that’s just because they are rare.

Put differently, the ACLU’s unilaterally-imposed arbitration process is so good and so similar to what you would normally see in a collective-bargaining agreement that it should be deferred to in the same way, especially since the victim in this case has availed herself of it (though she has only availed herself of it to adjudicate whether she was terminated for “just cause” not to adjudicate the ULP issue and the arbitrator has specifically said (p. 10) he will not rule on the ULP issue).

In digesting this argument, it is important to emphasize again that this is not a situation where there is some statutory or case law authority requiring the NLRB to defer to arbitration thereby forcing us to litigate the question of what that requirement precisely means. The Board has discretionarily established arbitration deferral as a matter of policy. The precise contours of that policy are up to the Board and the Board has currently decided that the policy only pertains to arbitration as part of a CBA.

The Board could, if it wanted to, change the current policy so that it also covers unilaterally-imposed arbitration clauses like the one ACLU has. This is effectively what the ACLU is asking the Board to do, but the crucial question the ACLU should be asking itself here is: why do they want the Board to broaden its arbitration deferral policy and thereby reduce the ability of workers to bring unfair labor practice charges to the NLRB?

It’s not because the ACLU has some kind of principled position in favor of arbitration and against access to the courts and administrative adjudication. In fact, it has consistently taken the opposite position, i.e. that mandatory arbitration for workers and consumers is bad and that we must preserve access to public processes.

The only plausible explanation for the ACLU’s behavior here is that it screwed up when it fired its employee Katherine Oh for making certain protected statements, that it cannot actually defend what it did on the merits, and so it is trying to push the NLRB to adopt a new policy that certain kinds of unilaterally-imposed arbitration agreements should be deferred to by the agency as an end-around the mess it has made for itself.

This is insane behavior from an organization like the ACLU whose whole existence is based on carefully setting and defending certain legal precedents. Keeping Ms. Oh from returning to work at the ACLU is clearly not worth setting a precedent that would diminish the labor rights of every private-sector non-supervisory employee in the country.

Does the ACLU really want a future where there is Collyer, Dubo, and ACLU deferral? That would be the name of this new third kind of arbitration deferral. ACLU deferral. Among other things, it doesn’t seem good for the brand.

If ACLU’s management cannot figure this out on its own and settle the case, then the ACLU’s board of directors and supporters should step in to help them figure it out. The heads of major labor organizations — including the AFL-CIO’s Liz Shuler, SEIU’s Mary Kay Henry, and UAW’s Shawn Fain — should also share their opinions about the case with ACLU’s leadership.