New court documents reveal that Google attempted to keep details of its anti-union campaign confidential by claiming attorney-client privilege

Sebastian  Klovig Skelton

By

  • Sebastian Klovig Skelton ,
    Senior reporter

Published: 13 Jan 2022 13:56

A US labour judge has ordered Google to hand over dozens of documents related to an internal anti-union initiative, ruling that the company wrongly claimed attorney-client privilege to protect the documents from disclosure in a National Labor Relations Board (NLRB) case.

The initiative, dubbed Project Vivian, ran from late 2018 to early 2020 and, according to the judge’s ruling, which quoted from one of the previously unreleased documents, was described by Google’s director of employment law, Michael Pfyl, as a way to “engage employees more positively and convince them that unions suck”.

The 7 January 2022 ruling is the latest development in a case the NLRB brought against Google in December 2020, which alleged that the firm had illegally surveilled and fired two employees engaged in workplace activism, including efforts to form a union.  

Google claimed, and maintains, that it dismissed the employees for breaching security protocols.

In the eight-page ruling, administrative law judge Paul Bogas said that Google must “immediately” release about 180 documents pertaining to its hiring of IRI Consultants – a firm known for assisting employers with their anti-union campaigns – as part of Project Vivian.  

According to Bogas, Google’s attempt to withhold subpoenaed documents by claiming attorney-client privilege “is, to put it charitably, an overreach” because its communications with IRI did not amount to legal advice.

“Not only were these communications not shown to be seeking or providing legal advice, but they were not confidential communications between the company and its legal adviser – rather they were communications in which IRI – a third party outside the confidential client-lawyer relationship – participated,” wrote Bogas, adding that IRI was instead “retained to provide anti-union messaging and message amplification strategies tailored to [Google’s] workforce”.

On Google’s attempt to cast a potential union election as litigation, which would therefore allow it to apply attorney-client privilege, the judge said the company “cannot spin the mere fact of a nascent organising effort among employees into ‘litigation’ – like straw spun into gold – that entitles it to cloak in privilege every aspect of its anti-union campaign”.

Of the 200 documents reviewed by Bogas, only 20 were found to be covered by attorney-client privilege.

The judge also took issue with Google’s effort to keep documents confidential by copying in legal counsel to its emails with IRI, adding: “A company cannot cloak a document in privilege merely by providing a copy to counsel.”

Although the ruling does not go into detail on the vast majority of documents, which were reviewed “in camera” by Bogas, it does offer insight into the contents of some communications between Google and IRI.

For example, in one of the documents referenced by Bogas, a Google attorney proposed finding a “respected voice to publish an op-ed outlining what a unionised tech workplace would look like, and counselling employees of FB, MSFT, Amazon and Google not to do it”.

In response to the proposal, Google’s human resources director, Kara Silverstein, said she “likes the idea” but that it should be done with “no fingerprints and not Google specific”. Bogas stated that IRI eventually provided a draft op-ed to Google’s attorney.

“We’ve always worked hard to create a supportive and rewarding workplace for our workforce,” said a Google spokesperson. “Of course, our employees have protected labour rights that we support. But as we’ve always done, we’ll continue engaging directly with all our employees.

“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. This included IRI Consultants for a short period.”

On whether the op-ed was ever published, the spokesperson said: “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.”

Computer Weekly also contacted the Alphabet Workers Union, part of the Communication Workers Union of America, but had received no response by the time of publication. The union is not recognised by Google and currently has no collective bargaining rights.

Download a copy of the ruling provided to Computer Weekly by the NLRB here.

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