DC Circuit questions path forward in Google and YouTube Music employees' labor dispute

WASHINGTON (CN) — A D.C. Circuit appeals panel appeared skeptical Monday that it should intervene in a labor dispute between a group of now-terminated unionized YouTube Music editors and joint-employers Google and Cognizant.

Monday’s arguments centered on a challenge by former employees of the YouTube Music Content Operations team to a National Labor Relations Board decision ordering further bargaining between the parties rather than additional remedies for failing to recognize their representation by the Alphabet Workers Union.

The workers were primarily responsible for fixing mistakes or bugs in the YouTube Music platform, ranging from lyrical mistakes or those made by artificial intelligence tools employed by Google.

U.S. Circuit Judge Patricia Millett wondered if the case was moot due to the contract between Google and Cognizant employing the 41 workers having expired on Feb. 28, 2024, and thus none of the union members remained at the company.

Google’s attorney Matthew Silveira, of firm Jones Day, argued that the case is not moot as the NLRB still retained jurisdiction over the companies’ argument they should not be considered joint employers, which Silveira called a “live controversy.”

In October 2022, the Alphabet Workers Union filed a petition to the NLRB to be recognized as the representative of a unit of Music Generalist and Subject Matter Experts, jointly employed by Cognizant and Google, where workers are subcontracted by Cognizant.

Google contested the assertion that it was a joint employer of the employees, but the NLRB found that Google exerted control over employees’ benefits, hours, supervision and direction of work, and therefore acted as a joint employer with Cognizant.

Silveira said that the three-judge panel should vacate the NLRB’s joint-employer finding, in part because the decision was unfounded and upends NLRB precedent.

Millett, a Barack Obama appointee, was unconvinced, noting that Google and Cognizant knowingly decided in February 2024 not to extend the contract that employed the members of the union.

“The problem with vacatur is you’re having your cake and eating it too,” Millett said. “You chose not to do the extensions so that you wouldn’t be bound by the board’s decision. But then you also want to come here and say, ‘oh our ability to challenge that decision has been terminated through no action of our own.’”

On Feb. 29, 2024, Google informed the employees that they would be laid off as they were testifying before the Austin City Council for a resolution demanding Google bargain in good faith.

Millett said that the record before the court did not include the layoffs, noting that she and her colleagues — U.S. Circuit Judges Justin Walker, a Donald Trump appointee, and Karen Henderson, a George H.W. Bush appointee — had to learn about them through news reports.

She expressed concern that any ruling — outside of a remand to the NLRB for a fresh analysis — would amount to a “substantial upheaval.”

Representing the union, Karla Campbell of firm Stranch Jennings urged the panel to deny Google’s arguments and enforce the original order, regardless of their decision as to the additional remedies.

“We had eight or so months under which these employers had an obligation to bargain with their employees, and they still have an obligation to bargain over the effects of ending a contract, the effects of which were 50 people in the Austin area lost their jobs,” Campbell said.

She added that despite the end of her clients’ contracts, the issue and its impacts were not moot.

“It’s very real, because these are 50 individuals’ lives and livelihoods that they have one last shot at bargaining over,” Campbell said.

In April 2023, the workers unanimously voted to unionize under the Alphabet Workers Union-Communication Workers of America after they began a strike in February 2023 in response to Google’s return-to-work mandate, where workers faced “voluntary termination” if they did not physically show up to the office in Austin, Texas. The strike was the first ever against Alphabet.

Following the union election, both companies appealed to the NLRB, which denied review of the joint employer determination.

Google and Cognizant refused to bargain with the union for over a year, leading the union to file an unfair labor practice charge to the NLRB in September 2023. The union requested the NLRB impose a bargaining schedule, a notice reading, a posting detaining employees’ rights, mandatory training and monetary compensation.

On Jan. 3, 2024, the NLRB granted limited relief, ordering the companies to bargain with the union and post a notice in the Austin location, declining the additional requests while severing the issue of compensatory damages for future arguments.

The union filed an appeal to the D.C. Circuit, while the companies appealed to the Fifth Circuit Court of Appeals, before the petitions were ultimately consolidated before the D.C. Circuit.

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