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The ACLU does a lot of great, even essential work. That said, no organization gets to use its good works to avoid accountability for its bad.
There’s a lot of turmoil over at the ACLU. An executive got fired and staff haven’t been too shy in sharing that they thought that was the right move. Accounts cite bullying tactics and inappropriate treatment of employees.
Two moments from early 2020 stood out as examples. On both occasions, employees were raising concerns to Newman that the department was hardly doing any advocacy for AMEMSA communities. In one instance, Newman dismissed those concerns with a joke, several people recalled — something along the lines of, “You got me! I hate Muslims.” Weeks later, at a large meeting between Newman, his staff and HR — this one concerning NPAD’s attrition problem — a young woman many times his junior recalled how his joke had made her feel like shit. Newman responded not by apologizing, but by picking apart her recollection in front of her horrified colleagues.
The moment was classic Newman, people said. Yes, it was his prerogative to pick and choose campaigns — but he didn’t need to embarrass the woman.
Newman’s replacement announced his support for the terminated predecessor and there’s a grievance over his firing an Asian-American woman who raised complaints about working conditions. The replacement claims the woman racially discriminated against him as a Black man.
That all landed before the NLRB and is beyond the scope of this article to untangle.
But there’s a deeply troubling nugget in the affirmative defenses at the end of its Answer:
FIFTH – The Complaint must be dismissed because the General Counsel lacked the authority to prosecute the Complaint in that the President could not remove the predecessor General Counsel without cause during the four-year term to which he was appointed.
As a refresher, this argument draws on a nutty GOP talking point that President Biden improperly dismissed the Trump-appointed NLRB general counsel, Peter Robb after Robb refused to resign. Robb, an anti-union stalwart dating back to his carefree days helping crush the air traffic controllers, got fired before the conclusion of his stated 4-year term and replaced by NLRB veteran and former CWA attorney Jennifer Abruzzo.
Republicans have whined incessantly that Biden lacked the authority to fire Robb, somehow without any sense of irony after they championed Trump’s decision to fire FBI Director James Comey in the midst of Comey’s TEN-year term. Which was a more problematic move since the FBI director has a term in part because the agency is supposed to have the flexibility to investigate crimes that a president might hope to cover up. Shielding the director from getting pink slipped for looking in on a White House playing footsie with the Russians is exactly why that term exists. The NLRB GC gig doesn’t really have the same potential to end up crosswise with the Oval Office.
In any event, the ACLU floats this argument in a bid to dispatch the NLRB charge.
It’s a significant and dangerous argument for the ACLU to pursue. If they prevail on this point, the organization committed to civil rights and civil liberties would junk all manner of labor rights initiatives. If Abruzzo is erased from history as the Board’s GC, there goes all the initiatives to improve the rights of immigrants seeking a fair deal on the job and efforts to shield employees from getting fired for protesting police brutality on their own time and bids to protect people’s livelihoods from draconian non-compete clauses.
And the fact that ACLU is comfortable with tearing down all that work is an embarrassment. It’s one thing to zealously advance every fringe legal theory in a client’s defense, and a whole other thing to threaten harming innocent third-parties because the client worries that it can’t prevail in a heads up defense of its practices.
We kicked this off by noting that the ACLU does a lot of great, even essential work. Maybe we should tweak that. The employees at the ACLU do a lot of great, even essential work. Hopefully management can get back to doing the same.
Inside The ACLU’s Post-Trump Reckoning [Huffington Post]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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