From Littler Insight:
NLRB Creates Right to Use Corporate E-Mail to Organize and to Complain About Work: Ten Key Implications for EmployersAs far as I know, Damore didn’t email his essay, he posted it on one of Google’s multitudinous discussion groups. But it’s hard to see a difference.
BY PHILIP GORDON AND NOAH LIPSCHULTZ ON DECEMBER 15, 2014
In a precedent-setting ruling, the National Labor Relations Board (NLRB or the “Board”) held last week in Purple Communications that Section 7 of the National Labor Relations Act (NLRA) requires employers, except in very limited circumstances, to open their corporate e-mail systems to union organizing by employees and to group discussions among employees about the terms and conditions of employment during non-work time.
Matt Bruenig writes:
… under current NLRB law, the Google Guy has a good chance of being reinstated for the following reasons:On the other hand, this angry Pier Sixty employee did not cite studies purporting to find biological differences between males and females, so at least he showed respect for the eternal verities.
The Google Guy complained about working conditions to other employees, which is generally protected activity under Section 7 of the NLRA.
Although the Google Guy used corporate email to communicate with other employees, the NLRB ruled in Purple Communications that you can do that.
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 #$%$#@ don’t know how to talk to people!!!!!! *%^@ his mother and his entire &*$%$#@ family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
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.Because union activists are the ultimate enemy.
But this analysis will all change once Trump’s appointees to the NLRB come in:
The Trump NLRB will want to overturn Purple Communications …
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.