A judge has ordered Google to turn over hundreds of internal documents — many related to its efforts to quash an employee union — as part of a National Labor Relations Board case over the tech giant’s firing of former employees.
In 2019, a group of workers who had recently been fired from Google (GOOGL GOOGLE) filed unfair labor practice charges with the NLRB, claiming they had been fired for speaking out about the company’s practices, such as signing controversial government contracts, and for engaging in protected labor organizing. Google (GOOGL GOOGLE) has maintained that the employees were let go for repeated violations of its policies. But in 2020, the NLRB filed a complaint alleging Google (GOOGL GOOGLE) had violated labor laws with two of the firings, claiming it had unlawfully targeted and surveilled employees engaged in organizing activities.
This latest ruling by administrative judge Paul Bogas, issued on Friday, marks a blow to Google in defending against the labor claims. It also comes as a larger battle heats up between big tech companies and their employees. Employees at Google and its parent, Alphabet, announced the launch of the Alphabet Workers Union, a minority union affiliated with the Communications Workers of America, last January, marking an historic step for the tech industry.
In his ruling, Bogas said Google had wrongfully claimed that the documents, which were subpoenaed as part of the former employees’ case, were subject to attorney-client privilege or work product privilege, calling the company’s arguments “not persuasive” and “an overreach.”
In a statement to CNN Business, Google spokesperson Jennifer Rodstrom said the company disagrees with the characterization of the documents.
“The underlying case here has nothing to do with unionization, it’s about employees breaching clear security protocols to access confidential information and systems inappropriately,” the statement reads.
Many of the nearly 200 documents relate to Google’s “Project Vivian,” the company’s “campaign to discourage employees from unionizing,” and its hiring of consulting firm IRI Consultants to help carry out the campaign, according to Bogas’ ruling. They include a document in which Google Director of Employment Law Michael Pfyl “describes Project Vivian as ‘the initiative to engage employees more positively and convince them that unions suck,’” and one in which it is proposed that Google attorney Christina Latta find a “respected voice to publish an OpEd outlining what a unionized tech workplace would look like” to discourage workers from Google, Facebook, Microsoft and Amazon from pursuing unionization, according to the filing, the ruling states.
“As we’ve stated, our teams engage with dozens of outside consultants and law firms to provide us with advice on a wide range of topics, including employer obligations and employee engagement,” Google’s Rodstrom said in the statement. “This included IRI Consultants for a short period. However, we made a decision in 2019 not to use the materials or ideas explored during this engagement, and we still feel that was the right decision.”
Bogas took issue with Google’s claims that documents were subject to attorney-client privilege — something that can shield information from becoming public in court proceedings — simply because a lawyer had been cc’ed on the email, even if the message did not seek legal advice.
“A company cannot cloak a document in privilege merely by providing a copy to counsel,” Bogas said in the ruling, adding that Google also waived attorney-client privilege with respect to many of the documents when it included IRI, a third party hired to help with campaign messaging, on the communications.
The judge also denied Google’s claim that the documents were subject to attorney work product privilege — which can keep secret documents created by an attorney in anticipation of or preparation for litigation — arguing that there was not a clear threat of litigation at the time when Google’s Project Vivian campaign was created.
“The Respondent cannot spin the mere fact of a nascent organizing effort among employees into ‘litigation’ — like straw spun into gold — that entitles it to cloak in privilege every aspect of its antiunion campaign,” Bogas said.
Bogas ruled that Google must immediately turn over nearly all of the documents, save for a handful of exceptions wherein he found the claim of attorney-client privilege was valid, in response to the former employees’ subpoena. He also ordered a review of Google’s claims of privilege over another nearly 1,000 internal documents related to the case.