media is rejoicing at a ruling by the National Labor Review Board (NLRB)
which claims that
Google was within its rights to fire its former software engineer, James
Damore, for questioning company diversity policies. Except there’s one
snag: the NLRB “ruling” wasn’t a ruling at all – it’s an internal advice
memo with no effect on Damore’s current legal claims.
most remarkable thing about the NLRB’s internal memo on Damore’s dispute
with Google is that they had no case to rule on. James Damore had
withdrawn his NLRB case over a month before the memo was released
publicly, to focus on his class-action lawsuit against Google.
attorney in the lawsuit, Harmeet Dhillon commented, “the NLRB normally
is supposed to handle a firing case quickly, within weeks, not months,
because the NLRB’s mandate is to get redress for the employee quickly if
possible, including rehiring and back pay.”
managed to drag out the process by months through delays and refusal to
provide documents to the agency, and as we later learned, through other
tactics. As we came up to five months after the termination with no
action by the NLRB for James or for the other people affected by
Google’s illegal conduct, we went ahead and filed the class action
lawsuit in January, and then withdrew James Damore’s NLRB charge. At the
time we became aware of this memo last week, he no longer had a case
pending before the NLRB.”
there was no case before the NLRB relating to James Damore, the agency
had no reason to release an opinion on Damore and Google. So why did
they do it?
internal advice memo’s release is a gesture favoring Google. The tone
and content of the memo are openly hostile to Damore. It was written
without the benefit of any hearing having taken place, or any sworn
testimony received, and it appears to accept as truth many
representations that Google has presented to the NLRB.
lies behind the timing and release of the memo given the procedural
posture of a now-withdrawn charge? There are three possible
explanations: classic D.C. swamp machinations, partisan politics
infecting the institutions of government, or a mix of both.
NLRB memo states that James Damore’s claim that there is a biological
basis for gender disparities in STEM industries was somehow a
“discriminatory” statement which made Google’s decision to fire him
justified. The memo puts the term “scientific” in quotations in such a
way as to disparage the numerous studies Damore cited to support his
position that Google’s gender gap may be attributable to factors other
the claim that biology affects the group career preferences and talents
of men and women is no longer controversial. Liberal academics including
Steven Pinker and Simon Baron-Cohen have made the same claim, supported
by considerable scientific research. It is the opposite view, that there
is no biological basis for differences between men and women, that is
now widely seen as a relic of 1970s thinking, even by left-wing, liberal
they had a strong vested interest in defending Google (entirely
possible) the only type of person who would disagree with the reality of
biological gender differences to the extent of penning a media-oriented
hit piece masquerading as an “internal memo,” would be a partisan
leftist. Is the author of the NLRB memo, Jayme L. Sophir, such a
what we know: Sophir was appointed to lead the NLRB’s division of advice
in July 2017, in one of the last acts of outgoing general counsel
Richard F. Griffin Jr. Griffin Jr., in turn, was appointed general
counsel in 2013, by President Obama. His replacement, Trump-appointed
Peter R. Robb, took office after Damore filed his original claim with
the NLRB in August, 2017 — on the very day he was fired by Google. For
months, a team of Obama appointees and officials managed the internal
discussions about the case at NLRB headquarters.
is entirely possible that Robb simply let Sophir take the lead on the
case — it was, after all, her area of responsibility to advise the
California NLRB on the case. If Sophir were a partisan, she could have
used her broad authority to do as she pleased on the Damore case – even
to the extent of overturning the formal decision of the local NLRB
office to proceed with his case, a decision that had taken place in 2017
after reviewing evidence submitted by both sides.
have reached out to the office of Peter R. Robb to find out if the memo
has his stamp of approval as well. His office has yet to respond.
the NLRB has defended far more dubious employee behavior in the past.
For example, in 2001 they ruled that
an industrial union representative was not being racially prejudiced
when he used the N-word. The recent memo, even though it isn’t an
official ruling, represents a significant break with precedent. The NLRB
has often been accused of being a weapon of trade unions and employees
against corporations. But in Damore’’ case, it is being used by Obama
holdovers as a weapon for the wealthiest tech company in the world to
have its way with workers who challenge what they believe are illegal
Google spent more
lobbying money than any other company last year. According to a source
familiar with the matter, they also directly lobbied the national NLRB
headquarters regarding the Damore case and other cases involving Google
workers challenging repressive “work rules” or HR policies that
allegedly chill Google employees from discussing their working
conditions with other employees.
is possibe that Google’s secretive lobbying efforts have paid off.
Although the work rules challenge is ongoing, we have learned that it
has been subjected to a series of visits to Sophir’s office over the
past several months. It’s possible that Sophir, the most anti-Damore and
pro-Google NLRB official involved in the case according to sources, is
simply a partisan leftist, and thus receptive to Google’s arguments on a
purely ideological basis – even to the extent of ignoring worker rights,
whose protection is the key mission of the NLRB.
bias towards Google at the NLRB may be more than a mere ideological
preference, though; Sophir was elevated by an Obama appointee, and the deep
links between Google and the Obama
administration are well-documented.
NLRB memo should raise alarm bells for more than one reason. The first
is the unusual step the NLRB took in releasing a memo on a charge that
had already been withdrawn, for seemingly no purpose beyond influencing
another case entirely beyond its jurisdiction — Damore’s class-action
second is the precedent this sets for other employees who bring their
complaints before the NLRB. They must now worry that the organization,
which is meant to protect labor interests, is now protecting certain
corporations instead, and on a purely political rather than a reasoned
and predictable basis. Google employees cheering James Damore’s
departure may one day find themselves wishing that the very labor
protections they expected would cover them, had not been lobbied out of
existence by their seemingly progressive employer’s efforts, with the
willing compliance of the last administration’s ideological agents.