Trump NLRB Smashed Google Guy

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.

The Legal Situation of DNAinfo and Gothamist

A week after DNAinfo and Goathamist unionized, its owner put the two publications out of business entirely. A lot of people have contacted me to ask whether this is legal. I don’t know all the details involved, but it probably is legal.

The key case here is Darlington Mfg. In that case, the NLRB had initially ruled that you cannot shut down a business in retaliation for union activity, but then the Supreme Court overturned that decision:

We hold that so far as the Labor Relations Act is concerned, an employer has the absolute right to terminate his entire business for any reason he pleases…

This rule holds only for completely closing down a business. It is a different story when an employer does a partial closing, a temporary closing, or moves the business elsewhere. In those cases, if the actions are done for retaliatory reasons, they may be illegal. But if a boss just ends the existence of a business altogether, there is no recourse.

You Prevent Private Coercion With Labor Market Regulation

McArdle has joined the ranks of conservatives suddenly concerned about private coercion. In a prior post, I discussed Dougherty’s entry into that discussion and so here I want to also address McArdle’s.

Overall McArdle’s piece mostly mirrors the ones that came before it: mass outrage at someone’s opinions or statements can destroy their ability to get employment, something they need to survive. This is not entirely unlike the way a state might kill you or throw you in prison for your opinions or statements. McArdle makes sure to say private sanctions are not as bad as state sanctions, but it seems like they certainly could be as bad. After all, a private sanction that fully eliminates your ability to get income is a death sentence. You literally starve without income.

Like the other writers working in this genre, McArdle struggles to understand that there exist institutions perfectly capable of stopping this kind of thing, albeit institutions that conservatives loathe.

Mass private coercion, which even if not quite as bad, still needs to have safeguards put in place to protect individual liberty. But we have no legal or social framework for those.

The legal framework that provides safeguards to protect individuals from private coercion is called labor and employment law. Through that framework we create rules that forbid employers from terminating people for certain reasons. These reasons include discrimination on the basis of race, gender, religion, and some other categories. They include retaliation against certain worker conduct: self-organization, whistleblowing, and filing complaints with government agencies. The list goes on.

In the case of conservatives being worried that major corporations no longer share their social worldview and are thus prepared to oust them for expressing it, one very obvious solution to that problem would be to amend the Civil Rights Act to include political opinions and statements as one of the things employers cannot discriminate against.

Such a rule already exists in Denmark’s equivalent of the Civil Rights Act:

The Anti-discrimination Act prohibits direct and indirect discrimination on the labour market on grounds of:

  • Race, colour or ethnic origin
  • Religion or belief
  • Sexual orientation
  • National or social origin
  • Political opinions
  • Age
  • Disability

Or, if you want to be more comprehensive about it, you could pass a law that forbids terminations carried out for reasons other than incompetence or economic redundancy. By whitelisting the kinds of things you can fire people for, you get out ahead of having to constantly add to the blacklist of things that you cannot be fired for.

As I pointed out in my Dougherty post, these kinds of protections do more than directly block the application of coercion. Once they are well-established, they should stop efforts to apply the coercion in the first place. People try to get businesses to fire people, get web hosts to drop content, and get payment networks to cancel payment services because these entities actually have the power to do these things. Once the power is removed, it will become futile to try this stuff and so people will stop trying it. If you don’t believe me, ask yourself why nobody thinks to call the local sheriff to have the people whose opinions they don’t like arrested?

Ultimately, conservatives will never come around on the utility of basic labor market regulation, even as they somewhat comically grasp in the dark towards that obvious conclusion. This is because a major constituency of the conservative coalition is very affluent people whose interests are best served by ensuring managers have as much discretion to hire and fire as possible.