For years, Google has tried to kill employee-led organizing efforts under an initiative called “Project Vivian.” In the words of a senior executive, the Vivian project existed “to engage employees in a more positive way and convince them that unions suck.”
Project Vivian appears to be Google’s response to an increase in worker activism that began in 2018, when thousands of employees demonstrated to protest the company’s response to sexual harassment complaints. Months later, employees started pushing for better working conditions for Google contractors and the end of contracts with U.S. government agencies involved in the evictions and family separations. Two employees who helped organize the 2018 walkout later left the company, saying they risked retaliation.
In the end, five employees were made redundant and two were sanctioned. They filed a complaint with the National Labor Relations Board, alleging that Google had interfered with their legally protected rights to organize in the workplace. The NLRB agreed and filed a complaint against Google in December 2020. Google refused to settle the case and the case went to the NLRB Administrative Court.
Revelations about the Vivian project were made public in a decision, made public at the end of last week by an administrative judge of the NLRB. In the scathing order, Judge Paul Bogas asked Google to turn over hundreds of internal documents related to his anti-union efforts, his second such order.
Bogas previously ordered Google to turn over the documents for review by a special master in camera, a process that allows another judge to search for confidential or sensitive information before it is made public. Numerous documents implicate Google’s work with IRI Consultants, an anti-union firm the tech giant hired in late 2019. So far, Google has refused to produce the documents, claiming they are protected by attorney privilege. client or work product privilege.
Bogas didn’t have it. “This broad assertion is, to put it charitably, overbreadth,” he wrote.
For such privileges to apply, Bogas said, there must be a case that is currently under review – or at least that should be. Google “cannot turn the mere fact of an incipient organizational effort among employees into ‘litigation’ – like straw turned into gold – which allows it to mask all aspects of its anti-union campaign with privileges,” he said. writes Bogas.
Further, “the documents confirm that IRI did not provide legal advice but was instead retained to provide anti-union messaging and message amplification strategies tailored to the Respondent’s workforce and to the social media environment, ”Bogas wrote.
Many of the documents that Google claimed to be protected by solicitor-client privilege or solicitor-client privilege “were, in fact, non-legal communications, with lawyers being included, if at all, only as recipients.” in carbon copy, “and without any statement asking for legal advice,” he said. The IRI, he said, “gave campaign messages, not legal advice.”
Bogas noted that Google’s own internal memos that advocated hiring IRIs do not mention retention of the firm for legal advice, but rather for communications and messaging:
According to the document recommending the retention of a consultant, the consultant’s mission would be: “[H]help us understand the current sentiment regarding worker organizing / unionizing efforts at Google; map stakeholders, risk areas and current efforts; and working with Google stakeholders to create and activate a proactive strategy for positive employee engagement, training and response. We are also seeking advice on how to properly engage our executives, leaders, managers and Googlers, equip them with the right information and facts, and how to be able to proactively engage on these issues. “
Other documents could have benefited from attorney-client privilege, but Google waived those rights when it shared them with IRI, a third party that Bogas says is outside the privileged relationship. Google sent other documents for in camera review already completed, making it impossible to determine whether solicitor-client privilege requirements were met.
Bogas ordered Google to tell him how attorney-client privilege might apply to disputed documents in light of his finding that any communication with IRI falls outside of the attorney-client relationship. Google has until January 21 to respond.
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