According to a spate of recent headlines, the ACLU has joined other private employers in arguing that the National Labor Relations Board is unconstitutional. But those headlines were more than a little misleading. While the ACLU did raise a quasi-constitutional argument in a Board case, it never questioned the Board’s status overall (just the status of its general counsel). And in any case, the ACLU now says it has scrapped this argument. Yet that doesn’t mean the ACLU is left with only vanilla arguments. More radically, it also argued that the Board should defer to private arbitration agreements. That argument is expansive: if accepted, it could affect thousands of cases and millions of workers. It is also deeply ironic, coming from the mouth of one of arbitration’s most vocal critics.

As with so many Board proceedings, the underlying case stemmed from a discharge. The ACLU fired an employee for bad behavior; the employee allegedly violated the organization’s anti-harassment policies. The employee responded by filing a charge with the Board. She said that her comments were aimed at sparking group action against the ACLU’s employment practices. In other words, she said she was engaging in “concerted” activity protected by the National Labor Relations Act. And that would mean the ACLU violated the Act when it fired her.

In its answer, the ACLU raised two eye-catching defenses. The first defense dealt with President Biden’s decision to fire the Board’s former general counsel, Peter Robb. Shortly after Biden took office, he removed Robb and replaced him with an acting official, Peter Sung Ohr. He then appointed the current general counsel, Jennifer Abruzzo, for the permanent job. In its answer, the ACLU argued that everything Ohr and Abruzzo had done was unlawful because Biden had no authority to remove Robb in the first place. It said that the NLRA gives the general counsel a four-year term, and the president has no authority to cut that term short.

That’s an adventurous argument. If it succeeded, it would effectively curtail the president’s power to remove executive officers. And it would do so with no explicit statutory limit. The NLRA says that the general counsel will serve a four-year term. But it says nothing about whether the term can be cut short. So to find a limit on the president’s removal power, you have to infer one. Several courts have already declined to do that, and so has the Board itself. And even if a court accepted the argument, it would only affect the general counsel’s tenure in office. It wouldn’t affect the Board’s overall constitutionality—which is what you’d think if you only read the headlines.

Getting less attention is the ACLU’s second defense, which focused on deferral to arbitration. This lack of attention is somewhat understandable. Deferral doesn’t exactly make the heart race: it speaks more to procedure than fundamental rights. It is, however, arguably the more important of the two issues. To be sure, the removal issue is significant: it could invalidate much of what the general counsel has done in the last three years. The deferral issue, however, could do even more: it could affect hundreds of cases and millions of workers well into the future.

To see why, you have to understand the deferral doctrine as it stands today. In effect, it is a prophylactic Board policy. It says that the Board will not process an unfair labor practice charge when the charge overlaps with certain private dispute-resolution procedures. These procedures, of course, must meet certain criteria, and the criteria tend to shift from administration to administration. But the basic idea has been the same for years. If a party raises issues that can be resolved in a private dispute-resolution procedure, and the procedure is sufficiently trustworthy, the Board will stand down.

But until now, that policy hasn’t applied to just any arbitration agreement. It has applied only to agreements negotiated between an employer and a union. The reason for that limit is fairly simple. The Board developed the deferral policy to promote collective bargaining. It thought that if it let parties negotiate their own dispute-resolution procedures, they would more often reach solutions themselves. And private agreements, after all, were what the NLRA was designed to promote. So to advance the statute’s goals, the Board announced that it would (usually) defer to collectively bargained arbitration procedures.

But none of that rationale applies to individual arbitration. Say what you want about the virtues of individual arbitration agreements, but the one thing they are not is collectively bargained. They’re bargained instead between one employer and one employee. So it’s hard to see how deferral to individual arbitration advances collective bargaining. And it’s even harder to see why the Board would accept the argument.

Still, for argument’s sake, let’s imagine that the Board did accept it. That decision could transform the way unfair labor practices are processed. By some estimates, sixty million employees in the United States have private arbitration agreements. And under the ACLU’s theory, those agreements would all be eligible for deferral. So in effect, more than half of private-sector employees would be blocked from pursuing charges with the Board. They would have to instead process their claims through private arbitration—just as unionized employees have to process theirs through their collective-bargaining agreements.

That result might be good policy. It would at least promote parity between union and nonunion employees. But even so, it’s an odd argument to hear from the ACLU. Perhaps more than any other organization, the ACLU has viciously opposed individual arbitration. It has called arbitration coercive, lopsided, and even “predatory.” It has argued that arbitration agreements are not really bargained or negotiated; they are instead imposed unilaterally by employers. And it has criticized these employers for using arbitration to shield themselves from liability and erode statutory rights. So it is surprising, to say the least, to hear the ACLU arguing that individual arbitration plays a “fundamental role” in protecting labor rights.

In the end, the ACLU’s argument will probably fail. The Board has typically deferred only to collectively bargained agreements. And there is no obvious reason for it to change tack now. But if it did, its decision would be deeply ironic. It would mean that the ACLU, one of arbitration’s most vocal critics, would have been responsible for one of arbitration’s biggest expansions.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].