The staff union and management are locked in a battle over who can be included in the union.

Aunion fight that is playing out in Illinois highlights how progressive organizations can use technical objections to the scope of a proposed union to effectively pursue union-busting while maintaining plausible deniability that they are doing so. This effort to have it both ways makes sense when you consider where this labor battle is happening: at the ACLU. 

The past two years has been a landmark one for unionization at the ACLU, part of the broader, ongoing wave of nonprofit organizing. As the pandemic raged in 2020, workers at several ACLU state branches unionized–including in Kansas, where the staff faced a corporate-style anti-union campaign. In January of 2021 about 300 staffers nationwide formed the civil liberties group’s largest staff union, called ACLU Staff United. In subsequent months, more state ACLU staffs across the country have successfully unionized, and ACLU staff union drives are underway in other states, like Virginia and Illinois*. Workers have vowed to continue until they have successfully unionized every state office. 

Though common sense might tell you that an organization that proudly declares that it “has championed the right of workers to organize unions since its inception more than 90 years ago” would be an easy place to unionize, that has not been completely true. While most of the union drives at the ACLU have secured voluntary recognition from management—a necessary baseline for any employer to be considered pro-union—that has not been the case in Illinois. In late June, workers there asked management to recognize their staff union, part of the National Organization of Legal Services Workers. More than five months later, they are still waiting. 

An ACLU of Illinois employee who is a member of the proposed staff union, and who asked for anonymity in fear of workplace retaliation, said that organizing there started in late 2020, after internal efforts to improve the workplace fell short. Employees were particularly upset after an internal staff committee aimed at improving diversity, equity and inclusion was disbanded, even as the organization lost staff members of color year after year. In June, 20 staffers signed an open letter to management requesting recognition for a union covering 27 people. 

“We expected the ACLU to live up to their values” and voluntarily recognize the union, as other state ACLUs had done, the employee said. “But instead we had a strange reaction.” Middle managers were told to keep quiet about the union, and workers were told that they could not use a Zoom background that advertised their union, according to the employee. 

For months now, management and the union have been locked in a stalemate over the issue of how many workers will be allowed to be members of the unit. Restricting the size of a proposed unit is a common tactic by employers, who often seek to assert that as many employees as possible are managers or supervisors, and are therefore not eligible to be union members. These sorts of negotiations, though cloaked in legalistic language, are usually more about power than about law—how fiercely management chooses to argue over vague job descriptions comes down to whether they are comfortable working with a staff union, or whether they see it as a priority to make the union as small and weak as possible from the very beginning. 

Fed up with the delays, the ACLU of IL Staff United finally filed a petition with the National Labor Relations Board in early October, seeking a resolution. The union had a two-day hearing at the NLRB that concluded on November 1. Though the timeline is not certain, the union expects to get a ruling on the size of its unit soon, and then it can proceed to a formal vote for certification.

“We were fed up, and decided if they weren’t going to be good faith partners,” going to the labor board was the only option, the employee says. “We’re deeply disappointed that the ACLU forced us to spend time and resources going before the NLRB. It’s not a good use of anyone’s time. We’d rather be doing the civil rights work everyone is here to do.”

The ACLU of Illinois said that executive director Colleen Connell was unavailable for an interview. Instead, the organization sent a statement attributed to Connell, which said that she has always been willing to extend voluntary recognition to “an appropriately defined bargaining unit of ACLU employees.” 

“To date, we have not been able to extend voluntary recognition because the Union’s proposed definition of the bargaining unit includes a number of positions that are supervisory, managerial, or confidential in nature and cannot, therefore, be lawfully included. We discussed these issues at length with the Union’s organizer prior to the Union filing its representation petition,” the statement says. It goes on to portray the dispute as one in which management is actually trying to protect employees, saying “our objections are not driven by a desire to defeat the Union’s representational objective. Just the opposite. NLRB law and policy makes clear that unionizing employees’ rights are frustrated by the inclusion in a bargaining unit of supervisors, managerial employees, and confidential employees.” 

That assertion of concern for “employees’ rights” is sharply at odds with what employees themselves say they want. Eleven positions in the proposed bargaining unit are in dispute, representing 40% of the total proposed union. The staff union filed a 50-page brief with the NLRB arguing that management has “taken dramatically expansive definitions” of who should be excluded from the unit, and that these “overbroad” arguments are inconsistent with labor law. 

The workers in Illinois are receiving vocal support from their colleagues across the country. “We’re disappointed that ACLU of Illinois leadership continues to drag out the union recognition process by failing to agree to a fair and inclusive unit,” said ACLU Staff United, the organization’s national union, in a statement. “It seems so easy for management to forget that the ACLU was founded over 100 years ago with a commitment to protecting workers’ rights. Staff at ACLU affiliates across the country and at the national organization have unionized to create a better ACLU and address pay inequities, lack of workplace diversity, remote work policies, and organizational transparency.”

There is no question that the ACLU of Illinois will eventually have some sort of staff union, covering at least some of its employees. But the outcome of its dispute will be significant. If successful in drastically restricting the size of the unit, management will have demonstrated a successful playbook for kneecapping a union’s power while insisting that you are pro-union, in line with your organization’s stated values. 

For workers at the ACLU of Illinois, the process has been eye opening—and has left them “surprised, disappointed, and disheartened.” 

“We came to work at the ACLU because we believe in civil rights,” the employee says. “And that includes labor rights.” 

This blog originally appeared at In These Times on November 15, 2021. Reprinted with permission.

About the Author: Hamilton Nolan is a labor reporter for In These Times. He has spent the past decade writing about labor and politics for Gawker, Splinter, The Guardian, and elsewhere. You can reach him at Hamilton@InTheseTimes.com.