The Trump NLRB Will Smash the Google Guy

The Google Guy who wrote the memo about Google’s diversity efforts has provided great fodder for the take-makers. Was he doing free speech? Was Google doing political correctness? Can a non-government actor hurt free speech? These and other profound questions about the nature of liberalism are all at stake.

Curiously enough, nearly every person’s opinion about the correct application of underlying speech principles in this case can be predicted by their substantive political orientation rather than their views on liberalism per se. The same of course was true in the Kaepernick case before this one, or the Duck Dynasty case before that, or the Dixie Chicks case before that. If you were inclined towards cynicism, you might even conclude that nobody actually cares at all about abstract procedural liberalism, that society is simply an unending power game, and that nobody is actually motivated by the arguments they write for publication.

Thankfully, we don’t even have to consider any of that here because this post is not about that. It is about the Google Guy’s chances at the NLRB, a topic I have been urged to write about by multiple people.

I said on Twitter and still believe that, under current NLRB law, the Google Guy has a good chance of being reinstated for the following reasons:

  1. The Google Guy complained about working conditions to other employees, which is generally protected activity under Section 7 of the NLRA.
  2. Although the Google Guy used corporate email to communicate with other employees, the NLRB ruled in Purple Communications that you can do that.
  3. Although the Google Guy’s comments were offensive to many, they probably are not so offensive that they lose protection of the NRLA under the NLRB’s Atlantic Steel test. For example, this statement from Pier Sixty, LLC is not so offensive as to lose protection: “Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
  4. Although the NLRB has never directly confronted the issue of what to do where the way someone has engaged in protected activity could also be a violation under Title VII of the Civil Rights Act, the Administrative Law Judge in Arthur Young & Co. dismissed an employer’s attempt to use Title VII to defend its termination. The judge rejected the defense in a short footnote, saying the employer’s assertion that there may have been a Title VII violation was implausible. My best guess is that the claim this email represents a Title VII violation is similarly flimsy and thus a defense that said “we had to fire him because we needed to protect ourselves from a Title VII lawsuit” would be similarly rejected by the current members of the NLRB.

But this analysis will all change once Trump’s appointees to the NLRB come in:

  1. The Trump NLRB will want to overturn Purple Communications, which was decided in 2014 and reversed prior NLRB precedent on the question of the use of corporate email. The pre-2014 rule favored by conservatives says that corporate email systems are company property and so employees have no right to use them in ways not sanctioned by the boss.
  2. The Trump NLRB will also want to give employers as much latitude as possible in firing someone for offensive remarks, and so may even be willing to interpret Atlantic Steel to permit termination in this case. By lowering the bar for what counts as too offensive to be protected, they will make it easier for employers to find ways to get rid of union activists.
  3. Since the Title VII argument has not been directly confronted by the NLRB before, it is also conceivable that the Trump NLRB would rule that employers have the right to terminate employees engaged in protected activity where there is any colorable Title VII claim resulting from the way that activity was conducted.

In basically all cases, a conservative NLRB will want to reduce the ways workers can coordinate with one another, and increase employer discretion to terminate employees. When I raised this point on Twitter, someone said that this might be different under Trump because wouldn’t such a ruling feed into the political correctness and whatnot that he hates. And to that I can only laugh: at the end of the day, what conservatives want to do is shift power to bosses over workers, and they are really good at keeping their eyes on the prize.

21 thoughts on “The Trump NLRB Will Smash the Google Guy”

  1. I can’t speak to myself as a counter-example to “no one”. But I personally don’t think my opinion has changed in regards to either the Kaepernick or Google incident.

    I’m against what Google did, but even before arguments about Kaepernick entered the picture, I was more than willing to entertain arguments that, if Google fired the memo-writer to avoid losing money, then it was a fair message. In my opinion, Google probably didn’t, especially since the CEO’s statement says nothing of the sort, but it’s possible that they need to pretend to be sincere to ensure they don’t lose money. Also, they have to factor in the risks of not firing this guy in regards to some of the civil rights cases they are dealing with, vis-a-vis gender pay discrimination, age discrimination, and probably some others I haven’t heard about. If that’s the reason, fine.

    The Kaepernick thing has been pretty well established to have been a disaster for revenue, and if you really want I can go get sources. But the bottom line is that it doesn’t seem like he was shunned for ideological reasons; if anything, a lot of NFL players seem to agree with him, since they did similar protests, and I haven’t heard about any of them getting “punished” for it. That signals to me that he is at the center of a political storm which has made him the symbol of the protests, which means there are a lot of people willing to boycott him – or even just turned off by the very idea of watching him.

    By the way, it’s worth noting that he may have been offered a job as a backup and turned it down – the current controversy seems to be that the Ravens won’t offer him a job, but they’re saying that they did and that he demanded more money. But even if that’s not the case, unless someone can provide me with significant proof that this is a political blacklist and not a financial one, I’m not going to be outraged at the NFL owners. The boycotters? That’s another story, but I’m no story-teller.

    Anyways, don’t see any other comments here. Hope you’ll read this and respond.

  2. Count me as a might skeptical that Kap, all by himself caused the decline in NFL ratings…there were a number of factors…one big one was the Trump factor and the presidential election…two… the games with all the penalties and ridiculous amounts of commercials have made tuning in almost unbearable. The product sucks like never before…

    PS: we’ve been season ticket holders of the 49ers for 40 years…they were unwatchable last season for obvious reasons…Oh and Kap sucks…but I had no problem with his silent protest. I had a problem with his lousy play.

  3. “Count me as a might skeptical that Kap, all by himself caused the decline in NFL ratings”

    Well, a lot of viewers felt strongly enough about the flag protests to stop watching, and Kaepernick is definitely the most recognizable participant in those protests. But does that carry over to the 49ers?

    Hmm, sure seems to. Anyways, it’s hard to get your hands on this data, especially since the NFL seems pretty determined to avoid talking about it, but the bottom line is that there is a clear drop in revenues, which also means a reverse of a steady upwards trend. From 2010 to 2016, NFL revenues increased by 50%, which means an average growth rate of 8.5% a year; even after the election was over, ratings were still down 1%, which is an effective 9.5% drop in revenues. (I’d also note that the flag protests happened at the start of the year, and people probably cared less about that as time passed, so that number could be even higher.) Any team owner who declines to take this risk is making a smart move, both for his own team’s revenue, and the revenue of the league as a whole. That’s especially true since Kap is a backup QB, and a known quality at that; in all of NFL history, 7 backup QBs have won Super Bowls, and this was either because the team around them was rock solid or they were stars in their own right. Considering the current QB-centric playstyle, I don’t know if this can happen anymore (last happened in 2001 with Brady, of all people), but if it does it’ll be because the team was good enough to win with a different backup QB, so why risk screwing yourself out of revenue and hurting the league?

    (Once again: if Google has a convincing case for a similar effect, then fine. I don’t think they do, though.)

  4. Did you read this in the ESPN story:

    “J.D. Power noted that only 12 percent of the fans it surveyed said they watched fewer NFL games last season, with 27 percent of people saying they watched more and 62 percent saying they watched just as much as they had the season before.”

  5. You’re seriously discounting the fact that the match-up was a horrible one…the 49ers and Rams were coming into the season with terrible expectations. Both teams suck…not exactly a marque game.

  6. I did! But unfortunately for you, I also read this:

    “NFL game viewership on networks that broadcast games was down an average of 8 percent for the 2016 regular season versus the season before.”

    So that’s that. And by the way, like I said, I’m not going to go out of my way to find more evidence of the obvious. A 25% drop in ratings doesn’t happen just because of a bad matchup…especially considering that Kap was already getting booed by the crowd. Skepticism is good, but if I were you I’d pair it with a little more personal research.

  7. Absolutely! My original comment addressed that point:

    “From 2010 to 2016, NFL revenues increased by 50%, which means an average growth rate of 8.5% a year; even after the election was over, ratings were still down 1%, which is an effective 9.5% drop in revenues.”

    So yeah, uh…tell me how my ass tastes 😉

  8. Well, thanks for proving my point for me!

    So in 2015, revenue was $13 billion. In 2016, revenue was $14 billion. In other words…revenue grew less than 9.5%, didn’t it? Oh, and from your other comment, we have this gem:

    “Ad revenue hit a record $3.5 billion, up 3% over 2015,”

    In other words, the NFL continued growing, because it is the NFL. But it saw a decline in viewership, which is undeniably an issue, as shown by the fact that it didn’t grow as much as it could have.

    I think this is where this conversation ends – you clearly have an agenda and you’re incapable of carrying on a civil dialogue. The numbers don’t lie, sorry to tell you – Kaepernick and the flag protests were a net drain on NFL revenues. The fact that they made money despite this is impressive, but changes little.

  9. There’s a factual mistake here which I think may be legally relevant: the memo was not emailed, but rather, posted on an internal google forum (internal web site), which was explicitly set up for discussion of such matters as google’s corporate policy, strategy, etc.. So if the memo had outlined opposite ideas (e.g., if it had advanced arguments in favor of gender quotas instead of against) it would have been wholly within the ordinary to post it there.

    Thus it seems to me unlikely that Google could claim that the use of the forum was unauthorized or that Purple Communications applies.

  10. Also, aren’t you contradicting yourself?

    “nearly every person’s opinion about the correct application of
    underlying speech principles in this case can be predicted by their
    substantive political orientation rather than their views on liberalism
    per se”

    …because you’re saying that the Trump administration will stay consistently in the GOP’s “weaken labor, strengthen capital” position rather than side with Damore?

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