For years, Google has attempted to kill employee-led unionization efforts under an initiative codenamed “Project Vivian.” In the words of one senior manager, Project Vivian existed “to engage employees more positively and convince them that unions suck.”
Project Vivian appears to be Google’s response to a surge in worker activism that began in 2018, when thousands of employees walked out in protest of the company’s response to sexual harassment complaints. Months later, employees began pushing for improved working conditions for Google contractors and an end to contracts with US government agencies involved in deportations and family separations. Two employees who helped organize the 2018 walkout later left the company, saying they were facing retaliation.
Ultimately, five employees were fired, and two were disciplined. They filed a complaint with the National Labor Relations Board alleging that Google interfered with their law-protected rights to organize at 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 Project Vivian were made public in a ruling, released late last week, by an NLRB administrative law judge. In the scathing order, the judge, Paul Bogas, told Google to turn over hundreds of internal documents related to its anti-union efforts, his second such order.
Bogas had previously ordered Google to hand over documents for review by a special master in camera, a process that allows another judge to look through them for confidential or sensitive information before they’re made public. Many of the documents involve Google’s work with IRI Consultants, a union-busting firm that the tech giant hired in late 2019. Google has so far refused to produce the documents, claiming that they are protected by attorney-client privilege or work product privilege.
Bogas wasn’t having it. “This broad assertion is, to put it charitably, an overreach,” he wrote.
For such privileges to apply, Bogas said, there must be a case that’s being currently litigated—or at least expected to be litigated. Google “cannot spin the mere fact of a nascent organizing effort among employees into ‘litigation’—like straw spun into gold—that entitles it to cloak in privilege every aspect of its antiunion campaign,” Bogas wrote.
What’s more, “the documents confirm that IRI did not give legal advice but rather was retained to provide antiunion messaging and message amplification strategies tailored to the Respondent’s workforce and the news and social media environment,” Bogas wrote.
Many of the documents that Google claimed to be protected by attorney-client privilege or work product privilege “were, in fact, communications between non-lawyers, with attorneys included, if at all, only as ‘cc’d’ recipients, and without any statement seeking legal advice,” he said. IRI, he pointed out, “gave campaign messaging, not legal, advice.”
Bogas noted that Google’s own internal memos that advocated hiring IRI do not mention retaining the firm for legal advice but rather for communications and messaging:
According to the document recommending the retention of a consultant, the purpose of the consultant would be to: “[H]elp us understand the current sentiment around labor organizing/unionization efforts at Google; map out the current stakeholders, risk areas, and efforts; and work with Google stakeholders to create and activate a proactive strategy for positive employee engagement, education, and response. We are also looking for guidance on how to engage our executives, leaders, managers, and Googlers appropriately, arm them with the right information and facts, and be able to proactively engage on these matters.”
Other documents might have qualified for attorney-client privilege, but Google waived those rights when it shared them with IRI, a third party that Bogas said lies outside the privileged relationship. Google sent other documents for in camera review already redacted, making it impossible to determine whether the requirements for attorney-client privilege were met.
Bogas has ordered Google to tell him how attorney-client privilege might apply to the disputed documents in light of his finding that any communications with IRI fall outside the attorney-client relationship. Google has until January 21 to respond.