For years, Google has sought to end employee-led union efforts through an initiative codenamed Project Vivian. In the words of one senior manager, Project Vivian existed “to engage employees more positively and to convince them that unions suck”.
Project Vivian appears to be Google’s response to a surge in labor activism that began in 2018 when thousands of employees left the office in protest of the company’s response to complaints of sexual harassment. Months later, employees pushed for improved working conditions for Google contractors and the termination of contracts with US government agencies involved in deportations and family separations. Two employees who helped organize the 2018 strike later left the company, saying they had faced retaliation.
Ultimately, five employees were laid off and two were disciplined. They filed a complaint with the National Labor Relations Board alleging that Google had infringed their statutory rights to organize in the workplace. The NLRB agreed and filed a complaint against Google in December 2020. Google refused to settle and the matter went to the NLRB’s Administrative Court.
Revelations about the Vivian project were published in one ruling, published late last week by an NLRB administrative judge. In the damning order, Judge Paul Bogas asked Google to hand over hundreds of internal documents related to its anti-union efforts, its second such order.
Bogas had previously instructed Google to submit documents for review by a special master On the camera, a process that allows another judge to search them for confidential or sensitive information before it is made public. Many of the documents concern Google’s work with IRI Consultants, an anti-union firm that the tech giant shut down in late 2019. Google has so far refused to produce the documents because it claims they are protected by attorney or work product privilege.
Bogas didn’t have it. “That broad assertion is, to put it benevolently, an excess,” he wrote.
For such privileges to apply, Bogas said, there must be a case that is currently being litigated – or at least expected. Google “cannot turn the mere fact of an emerging organizing effort among employees into ‘litigation’ ‘- like straw spun into gold – that privileges it to hide every aspect of its anti-union campaign,” wrote Bogas.
Additionally, “the documents confirm that IRI did not provide legal advice, but rather was contracted to provide anti-union messaging and reinforcement strategies tailored to the respondent’s workforce and the news and social media environment,” wrote Bogas.
Many of the documents that Google claimed to be protected by attorney privilege or labor product privilege “were in fact communications between non-attorneys, with attorneys included only as ‘cc’d’ recipients and without, if at all. any statement calling for legal advice, ”he said. IRI, he stressed, “gave campaign messages, not legal advice”.
Bogas noted that Google’s own internal memos advocating the hiring of IRI don’t mention that the firm is mistaken for legal advice, but rather communication and messaging:
According to the document recommending retention of a consultant, the purpose of the consultant is: “[H]Help us understand the current opinion on union organization / formation efforts on Google; identify the current stakeholders, risk areas and efforts; and work with Google stakeholders to develop and activate a proactive strategy for positive employee engagement, training and response. We’re also looking for guidance on how to properly engage our executives, executives, managers and Google employees, provide them with the right information and facts, and be able to proactively participate in these matters. “
Other documents may have qualified for attorney and client privilege, but Google waived those rights when it shared them with IRI, a third party that Bogas said was outside of the privileged relationship. Google sent other documents for On the camera Revision already edited, so that it cannot be determined whether the requirements for legal confidentiality are met.
Bogas has directed Google to tell him how attorney-at-law might apply to the controversial documents, as he finds that all communications with IRI are outside of the attorney-client relationship. Google has until January 21st to respond.
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