The Register recently became aware of four complaints filed against the Oakland-based company with the US National Labor Relations Board (NLRB). Three were filed at the beginning of April, and the fourth was filed last Thursday, amid layoffs at the business.
The complaints allege the following labor law violations: "8(a)(1) Concerted Activities (Retaliation, Discharge, Discipline) and 8(a)(3) Discharge (Including Layoff and Refusal to Hire (not salting))." Salting refers to a union member seeking a job at a non-union site in an effort to form a union there; so "not salting" refers to the absence of external motive.
In a phone interview with The Register last week, Wendy Musell, a partner at the employment law firm Stewart & Musell, said the charges pertain to Section 7 of the National Labor Relations Act, which covers the right of employees to join unions, to bargain collectively and to engage in concerted activity for mutual aid or protection.
"What the charges say to me is that there was either some concerted activity to protect worker rights or a union drive was being considered or started," Musell said.
A source familiar with the situation at NPM confirmed being told about a unionization effort after the layoffs were initially disclosed and added that not everyone involved in that discussion was dismissed. Another source familiar with the company said there's been general support for the idea of unionization among employees for many months, even among some of the executive staff.
Documents provided to The Register on Monday by the NLRB in response to a Freedom of Information Act request indicate that an attempt to unionize was underway. Though the federal agency denied our request for files, in part to protect information relevant to an open investigatory file, it provided a summary of the charges.
The NLRB forms provided reveal three claims against NPM; the fourth, filed after our FOIA request, was not included. Each of the three claims lists three employees, names redacted, and alleges that the company discharged them because:
The apparent interest in unionizing follows the company's decision to hire a new CEO last summer, Bryan Bogensberger, who was bought on board to help the code package biz become profitable.
Steve Swirsky, an attorney and board member of Epstein Becker Green and co-chair of the firm's labor management relations practice group, told The Register in a phone interview cautioned that its difficult to tell what's going on from the outside.
"The more complex question here is what the evidence is and how do you establish it," he said, noting that the employer may say firings had nothing to do with unionization but rather reflected performance problems or the need for a different skill set.
Swirsky said the next step will be an investigation by the appropriate regional office of the NLRB and if the investigation produces evidence that suggests a violation, the board will issue a complaint and notice of hearing. The remedy sought by the board, he said, is typically reinstatement with back pay.
Just over a week ago, NPM apologized for its handling of the layoffs, saying, "The way that we undertook the process, unfortunately, made the terminations more painful than they needed to be, which we deeply regret, and we are sorry."
The Register asked NPM to explain whether the terminations had anything to do with an attempt to unionize or bargain collectively, but the company declined to comment.
Despite the scarcity of unions in Silicon Valley companies and union membership at the lowest level since the US Labor Department began keeping track in 1983, there have been a variety of collective actions at high-profile companies in response to social and economic issues.
In January 2017, about 2,000 Google workers protested the Trump administration's travel ban on people from seven Muslim-majority countries. That same month, workers from Facebook, Google, Intel, Cisco and Stripe showed up to protest Palantir's provision of surveillance tech to the federal government.
In November 2018, thousands of Google workers staged a coordinated walkout to protest sexism. Later that month, hundreds of Googlers protested Dragonfly, a now supposedly abandoned project to develop a censor-friendly search engine for China.
Meanwhile, sparky car maker Tesla faces ongoing unionization efforts as does warehouse overlord Amazon. Employees at crowdfunding biz Kickstarter have decided to unionize, as have BuzzFeed and Ars Technica journalists and Gimlet Media, a podcasting startup recently bought by Spotify. Even Instagram meme makers have made a show of unionizing, seriously, they insist. ®