Investors Nudge eBay To Conduct Values Assessment As TCGPlayer M&A Scrutiny Heats Up
UPDATE 11-25-24
eBay has completed their "Living Our Values" assessment, with Davis Wright Tremaine LLP finding the company operates in line with their published Human Rights Policy and other values statements - will it be enough to assuage investor concerns about labor relations?
Liz Morton
eBay taps Davis Wright Tremaine LLP to conduct an investor recommended, independent Values Assessment as legal and regulatory scrutiny of TCGPlayer acquisition heats up.
The announcement posted yesterday bears both the eBay and TCGPlayer logos and promises the assessment will "[take] a close look at our workplace practices, policies, culture, and [hear] directly from our employees and external stakeholders" with a specific focus on the Human Rights Policy Statement, including the United Nations Principles on Business and Human Rights and the ILO Declaration of Fundamental Principles and Rights at Work.
Curiously, the statement says the assessment will not cover topics related to employees' working conditions, pay or benefits - all of which could be critical measures of whether or not eBay is living up to their Human Rights Policies as a whole and specifically in regard to unionized workers at TCGPlayer.
eBay acquired TCGPlayer in October 2022 in a ~$295 Million deal which initially left founding CEO Chedy Hampson and other key management in place, despite a history of strained labor relations which led to a previous unsuccessful union drive in March 2020 that received national media attention and public support from Senator Bernie Sanders.
Those previous unionization efforts and ongoing labor issues raised questions about due diligence and disclosure in the TCGPlayer acquisition and what the implications could be for eBay's other labor centric operations, leading both Hampson and eBay Chief Accounting Officer Brian Doerger to step down from their positions.
Liz Morton
eBay promoted GM Canada Rob Bigler to take the helm at TCGPlayer, but the change in leadership did not resolve ongoing labor tensions as more complaints were filed with the NLRB and eBay continued trying to block the certification of the successful union vote in March 2023.
At the time, eBay's Human Rights policy page had a section that said: "eBay also respects workers’ rights to unionize, and commits to bargain in good faith with any relevant associations or labor unions."
It was easy for the company to proclaim a supposed commitment to respect workers' rights when they had never faced any significant real world tests, but when workers at TCGPlayer tried to take them up on that commitment, eBay's actions sent a very different message.
eBay was finally forced to acknowledge TCGUnion-CWA in August 2023 after a final NLRB decision rejected their attempts to overturn the vote, but strangely, they quietly removed that previous language committing to bargain in good faith from the Human Rights Policy around the same time.
As eBay dragged their feet for months to stall coming to the bargaining table, New York City Comptroller Brad Lander and New York State Comptroller Thomas P. DiNapoli chastised eBay for the Human Rights Policy reversal in a letter to the Board of Directors in November 2023.
Liz Morton
Little progress had been made on either the bargaining front or the Human Rights Policy until eBay and TCGUnion-CWA announced a surprising settlement in March 2024 which included compensation for fired pro-union workers and other concessions in return for dropping all NLRB complaints that were still open at that time.
Liz Morton
That agreement also included changes to the Human Rights Policy - but notably it didn't go back to the exact wording that had been previously used, instead couching the wording about unions in more carefully crafted terms that now reads:
We respect the rights of our employees to choose to support, or not support, representation by a labor union, works council or other employee organization.
We are committed to bargaining in good faith with any such representative body established under applicable laws.
The new wording also says, "these fundamental human rights include but are not limited to those regarding wages, working hours, health and safety..." so again it is very strange that eBay has arbitrarily excluded employees' working conditions, pay or benefits from the Values Assessment, considering those topics are directly addressed within the Human Rights Policy that is supposedly being assessed.
TCGUnion-CWA had been hopeful that negotiations would begin to move forward more productively after that settlement and Human Rights Policy update, but they say eBay is still stalling contract negotiations after hiring a new Head of Labor Relations from Nestle.
The union has since filed additional NLRB complaints alleging the company has escalated union-busting activities targeting women, disabled and pro-union workers with illegal surveillance and changes to family leave benefits and rallying in support of TCGplayer receiving generalist, Megan Wheeler, who the union says has been penalized by management for issues related to her pregnancy.
This Values Assessment also comes at a time when eBay is facing increasing regulatory scrutiny and legal action on multiple fronts including a historic $59 Million settlement with the DEA and EPA lawsuit seeking to hold the company accountable for items sold on their site, as well as a deferred prosecution agreement in connection to the 2019 cyberstalking of journalists Ina and David Steiner of EcommerceBytes with $3 Million fine and enhanced compliance monitoring that includes a specific focus on Mergers and Acquisitions.
Liz Morton
Amanda Lewis, Co-Founder of the Responsible Online Commerce Coalition, has filed also a petition with the Federal Trade Commission calling for an investigation into eBay's acquisition of TCGplayer for alleged violations of the FTC Act and federal antitrust law.
Liz Morton
The petition on behalf of ROCC member DJ Johnson and other 3rd party sellers cites “serious concerns about eBay/TCGplayer’s apparently deceptive and anticompetitive conduct” including illegal monopoly maintenance, anticompetitive rollups, and overcharging sellers and consumers through unfair and deceptive “junk fees.”
ROCC also called out eBay for directly selling on their own platform under the TCGPlayer name with no disclosure to consumers or the third party sellers the company is now competing directly against - a conflict of interest that could seriously jeopardize one of eBay's main defenses in the EPA lawsuit.
Beyond the labor issues at TCGPlayer, hopefully this independent assessment will also be looking at Ethics and Compliance section of the Human Rights policy - especially in light of recent developments in the criminal and civil cyberstalking cases.
Liz Morton
If eBay is truly concerned about rehabilitating their ethical image, they may want to reconsider operating an on-campus pub serving free beer and wine to employees at daily happy hours in light of the role the pub and alleged "alcohol-soaked corporate culture" played in the cyberstalking events.
Liz Morton
Buyers and sellers may also be interested in what the Human Rights Policy has to say about eBay's obligations and responsibilities to users as well.
Is eBay is living up to the values expressed in their publicly posted Human Rights Policy and should this assessment include topics related to employees' working conditions, pay or benefits? Let us know what you think in the comments below!
