The Board charge focused on whether workers were retaliated against for communicating among themselves for using internal email and an internal calendar system. The dispute, however, has now morphed into a far larger issue concerning Google’s work for US Immigration and Customs Enforcement (ICE) and the reach of the NLRA. It takes place against a background of political transition at the NLRB and increasing Googler labor activism.
What happened at work today?
That’s a question that often kicks off a tangled story about illegal labor practices, politics and social justice. This is one of them. Buckle up.
In 2019, Paul Duke, Rebecca Rivers and Sophie Waldman claimed that Google fired them for protesting the company’s anti-immigrant work with Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). That summer, Duke, Rivers and Waldman wrote a petition calling on Google to commit not to support ICE and other related agencies. To organize co-workers, they used Google’s internal communications systems. Approximately 1,500 employees signed the document.
Duke, Rivers and Waldman were fired. Other employees complained that their electronic communications were spied upon. They charge that Google/Alphabet violated the NLRA by:
- Monitoring the protected, concerted activities of employees;
- Interrogating employees to extract information about their protected, concerted activities, including access to certain documents and calendars;
- Threatening employees with “unspecified reprisals” by requiring them to raise any workplace concerns only through official channels; and
- Creating new rules prohibiting employees from accessing their coworkers’ calendars “without a business purpose” or from creating calendar events with more than 100 invitees or using more than 10 rooms “without a business purpose.
Widening the lens
Investors, including shareholders of publicly traded companies, do this with some frequency. Divest from fossil fuels? Shed investments in Big Pharma? This advocacy happens all the time at shareholder meetings. On August 24, counsel for Google reportedly argued that he knows of no case in the Board’s history in which it found workers' organizing protections cover challenges to an employer's choice of customer.
But here’s the big question: Should the workers -- the talent at Google – have a say that is equal to the moneyed interests? Are they stakeholders?
A handful of European countries require worker representation on corporate boards. Some argue that it is time for the U.S. to do the same. When seen expansively, that is the question posed by Google LLC and Alphabet Inc., and it is challenging new territory.
Narrowing the lens
Google, on the other hand, appears to be hammering the narrower historical question: Have sections 7 and 8 of the NLRA previously been seen to protect workers’ rights to engage in political activism beyond the traditional issues of wages, hours and the right to organize? All of this takes place in the context of a fierce political struggle about the reach of the NLRA.
The political backdrop
The Board is an independent agency charged with safeguarding the rights of workers to organize and engage in collective bargaining. It and its General Counsel make decisions about which charges to pursue against employers. The General Counsel is the Board’s top prosecutor.
The Board has five members who are appointed by the President, subject to confirmation by the Senate, and who serve for a term of five years. By the end of the previous administration, the Board was composed of four members: three Trump appointees and one Democratic holdover. It is important to know that the Board may act with a quorum of three. The agency’s General Counsel, Peter Robb, also appointed by the previous administration, was a former management lawyer.
During those years, the NLRB was seen to have taken a restrictive view of workers’ rights under the NLRA.
House cleaning and power politics
In the first few days of the new administration, President Biden fired Robb. It appointed Peter Ohr as General Counsel on an interim basis. Jennifer Abruzzo assumed that role in July. She has outlined a list of priorities for the Board, seeking to undo the previous Board’s work to the extent that it was not consistent with pre-Trump administration precedent.
One existing member’s term expired at the end of August. President Biden has nominated two Democrats – one to replace the outgoing member and one to fill the vacant seat. Both nominees have deep ties to organized labor. When the dust has settled, that leaves three out of five worker-friendly Board members in addition to the General Counsel.
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Dismissed charges reinstated, challenging open questions
In his last days in office, Robb dismissed River’s, Duke’s and Waldman’s termination charges against Google, saying the NLRA did not protect their protest. That left only the other retaliation charges. In May, before Abruzzo took over, Ohr reinstated the termination charges. Now we see what happens.
Board changes, by themselves, do not guarantee success for the Googlers. Their ultimate claim may be anchored in a bigger issue. It does mean that the issue of the firings is back under consideration. Best guess is that the larger question of whether workers deserve a seat at the table in making decisions about corporate management may still have to wait – still the big question.