In August of last year, I wrote that the new Republican-led NLRB would reject James Damore’s unfair labor practice charge. I argued that they would do so, not because long-standing NLRB law requires them to, but rather because the management-side attorneys that lead Republican NLRB administrations want to give management as much discretion as possible to fire people. We learned today that this is precisely what ended up happening.
The NLRB General Counsel wrote a memo advising NLRB Region 32 not to pursue the case. The memo concedes that the Damore communications that led to him being fired were mostly protected by the NLRA, but then goes on to say that those protected communications were mixed in with statements about women that were so over the top that he lost protection under the NLRA.
Here’s the money shot:
In furtherance of these legitimate interests, employers must be permitted to “nip in the bud” the kinds of employee conduct that could lead to a “hostile workplace,” rather than waiting until an actionable hostile workplace has been created before taking action.
You get that? It does not say that Damore’s conduct was bad enough to constitute a hostile workplace. Under prevailing interpretations of the Civil Rights Act, it probably wasn’t. But it says instead that employers can fire someone for otherwise protected activity if it decides that the protected activity involves conduct that could lead to a hostile workplace. In support of this proposition, the memo cites only examples from other cases decided by GOP NLRBs, including one where the GOP NLRB upheld the termination of a union activist who said her foreman was a Klansmen.
There is almost no chance that a Democratic-controlled NLRB would have reached the same conclusion. As proof of this, consider the Cooper Tire picketing case decided under the Obama Board. In that case, picketers yelled out clearly racist statements at replacement workers and were fired for doing so. The NLRB said the termination was unlawful because the statements occurred in the context of protected activity (picketing) and the 8th Circuit ultimately affirmed the NLRB’s decision in that case. Picketing is a somewhat different legal situation than memos spread by email lists or whatnot, but the case nonetheless provides a good sense of how much Democratic boards are willing to tolerate in order to reduce the ability of employers to fire people who are engaged in otherwise protected activity.
None of this analysis is to say that the Republican position on this is necessarily wrong. The interaction of the Civil Rights Act and the National Labor Relations Act is obviously very tricky on the edges and it may make sense to lean more in the direction of the CRA where the two come into collision. But the Republican calculation here is not based on their love of the CRA. It’s based on their love of management discretion.
As I noted in my August post, cases like these are a good test for what Republicans actually care about. One might think that the Trumpian Republican party would do everything they can to defend Damore because of his self-styled bucking of “political correctness.” But one would be wrong. Republicans stay focused on the nuts and bolts of shaping an economic regime that is most favorable to bosses. And if they need to sell out culture warriors to do so, they will every time.