A Google engineer was fired last week after circulating a 3,000 word memorandum, among other things, criticizing the tech giant’s approach to diversity issues and questioning the root causes of the industry’s gender gaps. He has filed an unfair labor practice charge with the National Labor Relations Board alleging that the company violated Section 8(a)(1) of the National Labor Relations Act:
…by threatening employees because of their protected concerted activities and by making threats of unspecified reprisals against employees because of their protected concerted activities.
Presumably, his termination for drafting and circulating the memo among his co-workers will be central to his proffer of evidence.
One article on the charge filed by James Damore, explained the authors’ skepticism thus:
Damore could argue to the labor board that by firing him for his memo, Google violated the federal law that protects collective action by employees, said Wilma Liebman, who chaired the National Labor Relations Board under President Barack Obama.
To prevail, he’d have to show that his letter was related to workplace conditions, that it was designed to instigate collective action among his co-workers, and that it wasn’t so defamatory or offensive as to forfeit legal protection. “I think it’s an open question,” Liebman said. “It’s not a slam dunk either way.”
Yet it is the extreme expansion of NLRA Section 7’s protections by former Chair Liebman and her philosophical disciples on President Obama’s NLRB that have paved the way for this case. As I mentioned in a conversation with Bloomberg BNA, while much of the manifesto may well be characterized as political, philosophical and/or scientific debate, there are clearly portions where the author sought to make common cause with his co-workers regarding working conditions. For example, in an effort to address the various pay and promotion issues identified by the memo, the “Suggestions” section recommends, among other things, that the employer:
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“[s]top restricting programs and classes to certain genders or races”;
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discontinue “microaggression training”;
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make “Unconscious Bias” training mandatory for promotion committee members; and
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implement other adjustments to surveys used in pursuit of diversity within certain “org levels.”
It is hard to argue that these specific recommendations do not pertain at all to the working conditions of the memo author and his co-workers at the company. It may be slightly more complicated to question whether his circulation of this memo to numerous co-workers, including, by some reports, via internal employee bulletin board postings, was “designed to instigate collective action.”
As for whether the memorandum’s contents were so “defamatory or offensive” so as to forfeit the protection of the NLRA, that question seems ironic the same week that the Circuit Court of Appeals for the Eighth Circuit issued its decision in Cooper Tire & Rubber Co. v. NLRB, No. 16-2721 (8th Cir., Aug. 8, 2017). In that case, the Court upheld an earlier decision of the Board protecting the “right” of a striker to yell vile, racist epithets at African-American workers from the picket line.
It may be interesting to follow the investigation of this charge as it winds through the Regional Office and makes its way to the General Counsel’s office. The current General Counsel, Richard Griffin, has largely been a philosophical ally of former Chair Liebman. But his term expires in November of this year. His replacement is yet to be nominated by President Trump, although observers expect that nomination soon after Congress returns from the Summer Recess. Timing and personnel issues may well play into the resolution of this intriguing case.
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