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Google’s NLRB Case Creates Chance for New Rules on Worker Speech

Sept. 9, 2021, 10:56 PM

Google’s ongoing unfair labor practice case will likely provide the National Labor Relations Board an opportunity to overturn a Trump-era ruling reducing labor law protections for employees’ offensive speech or conduct during workplace activism.

The Alphabet Inc. unit is in the third week of trial before an administrative law judge in San Francisco for alleged labor law violations, including that it fired workers for protesting the company’s relationship with federal immigration enforcers and for creating software to inform co-workers of their labor rights.

A lawyer from the NLRB general counsel’s office, which is prosecuting the case against Google LLC, announced Wednesday that the board’s 2020 ruling in General Motors, which Google says applies to the case, should be struck down. The office will make its argument to overturn that decision in a forthcoming brief, attorney Richard McPalmer said.

While the judge now hearing the case is bound by the board’s existing precedents, any ruling she makes is likely to be appealed by one of the parties, at which point NLRB members in Washington can weigh the general counsel’s argument for establishing a different standard to govern firings of activists. Democrats secured a majority on the five-member board in August.

Following a decision from the judge, the Google case will add to the supply in the agency’s pipeline that the NLRB’s new Democratic majority can choose from to recast board precedent in favor of workers and unions after the pro-employer tilt during the Trump administration.

The GM Decision

When Republican board members still held the majority last year, they used a case involving a Black General Motors employee’s provocative comments about racism to establish a new standard making it easier for companies to punish employees who say or do offensive things while exercising their legal rights to workplace collective action.

The NLRB’s General Motors decision struck down precedents that protected conduct or speech during encounters with management, on picket lines, and on social media.

Ditching those context-dependent standards, which took into account different norms in different situations, the ruling said employers can discipline workers for offensive speech or conduct as long as they weren’t motivated by the workers’ union activity or other actions protected by federal labor law.

The decision displaced the context-dependent standards in favor of using the Wright Line test, the board’s longtime framework for deciding whether employer actions were motivated by anti-union animus, to assess whether the discipline was lawful.

Which Standard Applies?

During opening arguments at the Google trial on Aug. 24, the company’s lawyer, Al Latham of Paul Hastings LLP, said that “under current board law, which is General Motors, the Wright Line test applies.” He added: “Even if you applied another test,” Google still didn’t break the law.

McPalmer, the lawyer from the NLRB general counsel’s office, said Google should lose even under the General Motors precedent. But that precedent should change, he said.

“The general counsel will be arguing to overrule General Motors to the extent that it would be found to apply here to these facts,” McPalmer said.

The case is Google, N.L.R.B. A.L.J., Case 20-CA-252802, Trial proceedings 9/8/21.

To contact the reporters on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; Josh Eidelson in Palo Alto, California at jeidelson@bloomberg.net

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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