Biden’s NLRB to Google: Not So Fast on the Union Busting, Bub

Thousands of employees walk out of Google offices in San Francisco to protest the company’s handling of sexual misconduct cases against execs in November 2018.
Thousands of employees walk out of Google offices in San Francisco to protest the company’s handling of sexual misconduct cases against execs in November 2018.
Photo: Eric Risberg (AP)

Google maintains it is “very confident” it will face no consequences for firing three workers involved in unionization efforts, despite the acting top counsel of the National Labor Relations Board’s opinion that the tech giant may have violated labor law.

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In late 2019, Google fired five different staffers known for workplace activism on issues like pay disparity, contracts with U.S. Customs and Border Protection and Immigration and Customs Enforcement, and Google’s hiring of union-busting firm IRI Consultants. Google claimed that four of the workers, Laurence Berland, Paul Duke, Rebecca Rivers, and Sophie Waldman, leaked internal information about the company. A fifth terminated employee, Kathryn Spiers, says she was never told how she violated company policy but did code a small pop-up that appeared on the Chrome browser on Google work machines that informed staff of their “right to participate in protected concerted activities.”

The NLRB already filed a complaint against Google for firing Berland and Spiers late last year. In an email seen and reported on by Bloomberg on Wednesday, however NLRB Acting General Counsel Peter Sung Ohr wrote that the company “arguably violated” federal laws by “unlawfully discharging” Duke, Rivers, and Waldman. Ohr told an NLRB regional director to amend the original complaint to add their names to the list.

The original NLRB complaint, filed in December 2019 by the Communications Workers of America (CWA), accused the company of using illegal tactics to discourage labor activism. Those included time-honored union-busting moves like interrogating activist workers, targeting them for punitive enforcement of company policies, and imposing rules that illegally prohibited protected organizing. Such labor complaints can take years to resolve and are often followed by appeals.

When the NLRB took up the complaint in December 2020, Berland told Gizmodo in an emailed statement that “This complaint makes clear that workers have the right to speak to issues of ethical business and the composition of management. This is a significant finding at a time when we’re seeing the power of a handful of tech billionaires consolidate control over our lives and our society.”

“Workers have the right to speak out about and organize, as the NLRB is affirming, but we also know that we should not, and cannot, cleave off ethical concerns about the role management wants to play in that society,” Berland added.

“Our thorough investigation found the individuals were involved in systematic searches for other employees’ materials and work, including distributing confidential business and client information,” a Google spokesperson told Bloomberg via email. “As the hearing on these matters moves forward, we’re very confident in our decision and legal position.”

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During Donald Trump’s administration, the Republican-stacked NLRB issued numerous decisions ruinous to labor organizers—such as a determination that work emails can’t be used for organizing activity. Laurie Burgess, an attorney for the five workers, told Bloomberg the NLRB’s advice division originally determined that Duke, Rivers, and Waldman shouldn’t have been added to the complaint because their activism opposing Google’s business contracts with U.S. Customs and Border Protection wasn’t protected speech. The NLRB did not immediately respond to Gizmodo’s request for comment and we’ll update when we recieve a reply.

The five-member NLRB board is still controlled by Republicans, but Joe Biden fired the Trump-appointed general counsel of the organization, Peter Robb, after the attorney refused to resign. Ohr, his acting replacement, promptly rolled back many Trump-era NLRB policies. According to Bloomberg, Biden’s permanent pick to replace Robb, Jennifer Abruzzo, works for CWA.

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Biden threw his weight behind a unionization drive at an Amazon facility in Alabama in March, warning the company to stop intimidating organizers. The union vote later failed, although the Retail, Wholesale and Department Store Union said that Amazon used illegal methods to subvert the election and is asking the NLRB overturn the results in a hearing scheduled for Friday.

While Biden’s support for the union effort was welcomed by labor activists, the real test of his presidency’s commitment to the labor union will center around the PRO Act, a massive bill that would overhaul federal labor laws to an extent not seen in decades. Biden has yet to mount an effort to push the bill through Congress, where it may face long odds. Tech firms rely on armies of contractors that would find it easier to unionize under the Pro ACT—such as gig apps like Uber, Lyft, Doordash, and Instacart—and the money men have only started to ramp up their lobbying efforts to kill or water down the bill. Companies like Amazon, Facebook, and Google also employ large numbers of contractors, in Google’s case outnumbering permanent staffers. That potentially sets the stage for tech firms to be key players in a looming fight over the bill.

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Tom covers tech, politics, online extremism, and oddities for Gizmodo. His work has appeared on Mic, Yahoo News, AOL, HuffPo, Business Insider, Snoop Dogg's Merry Jane, Wonkette and The Daily Banter.

DISCUSSION

Brianorca
Brianorca

I’m no lawyer, but doesn’t Google have a point, if these employees were sharing personal information (PII) about other employees with a third party? Or the other employee that added code to create a pop-up, that’s basically hacking. It’s certainly not just a email or instant message. I would sure hope unions don’t have carte blanche to break these kind of laws. (Assuming they acted as described. It’s entirely possible Google is exaggerating some portion of it.)