Do you think if he had kept his original memo to those acceptable points(the hostile attitude toward conservative views), that they might have gone forward with it? Or would it have still been too difficult to prove with the case?
It's a little fuzzy because the Advice Memo asserts up front that it's assuming arguendo that the memo, in both its protected and unprotected components, constituted protected concerted action. So it's possible that NLRB never really reached the question of whether this kind of organizing truly constitutes organizing for "mutual aid and protection" under the definitions of the NLRA; it didn't have to, because whether or not you're organizing under the NLRA, the memo says there's pretty extensive case history saying you can't do it to work against federal anti-discrimination law.
The NLRA does not eliminate employment at-will! You can get fired for all sorts of dumb superficial reasons. You just can't be fired for exercising your specific rights to concerted action for improved workplace conditions under the NLRA.
But before you go flex this particular right --- and really people should start doing this, like, a lot --- go talk to a labor lawyer and dot your 't's.
This turns out to be pretty easy to do: you can just contact @michelleimiller at Coworker.org, who facilitates this kind of stuff.
It's important I think to understand that the NLRB isn't saying that it's unlawful to write the Damore memo. They're not even saying that Damore's IQ and psychology claims violate EEO law. Instead, what they're saying is that they're close enough to the underlying issue of anti-discrimination compliance that the NLRB isn't going to second-guess Google's decision to terminate.
Well, they did call what Damore wrote "sexual harassment" and "discriminatory", and sexual harassment is illegal and violates EEO, so that is basically saying that what he wrote is unlawful:
"The Charging Party’s use of stereotypes based on purported biological differences between women and men should not be treated differently than the types of conduct the Board found unprotected in these cases. [His] statements about immutable traits linked to sex—such as women’s heightened neuroticism and men’s prevalence at the top of the IQ distribution—were discriminatory and constituted sexual harassment, notwithstanding [his] effort to cloak comments with “scientific” references and analysis, and notwithstanding “not all women” disclaimers."
I'm having trouble finding it on nlrb.gov's site or Google w/ `site:www.nrlb.gov`.
It looks like it may be this [0][1]. But, that case doesn't mention Damore as a participant, though it does list his lawyer: Dhillon Law Group, Inc.
[0] NRLB Case: https://www.nlrb.gov/case/32-CA-205351
[1] Advice Memo (PDF): http://apps.nlrb.gov/link/document.aspx/09031d45826e6391