04/24/2025: DC Circuit Rules That Google Joint Employer Case is Moot
The perils of delay.
Alphabet Workers Union-Communication Workers v. NLRB, 24-1003, (Circuit Court)
The D.C. Circuit Court of Appeals issued a decision on April 22, 2025, addressing multiple petitions for review related to a joint employer determination by the National Labor Relations Board (NLRB). The case involved Google LLC, Cognizant Technology Solutions U.S. Corporation, and the Alphabet Workers Union-Communication Workers of America, Local 9009 (AWU).
Background
Cognizant provided YouTube Music Content Operations services to Google under a contract that began July 1, 2019, and was extended multiple times before expiring in February 2024. In October 2022, AWU petitioned the NLRB to represent Cognizant employees working on Google's YouTube Music platform, naming both companies as joint employers. The Regional Director found that Google exercised "substantial direct and immediate control" over supervision, benefits, and hours, making it a joint employer under 29 C.F.R. § 103.40(a) (2020).
After employees voted unanimously to be represented by AWU, Google and Cognizant refused to bargain to challenge the union certification. The NLRB subsequently found this refusal violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act and ordered the companies to bargain with AWU.
Court's Analysis and Holdings
The court first addressed mootness, an issue it raised sua sponte. It determined that the expiration of the Google-Cognizant contract in February 2024 mooted both Google's and Cognizant's petitions challenging the joint-employer determination and the NLRB's cross-applications for enforcement. The court reasoned that without an ongoing contractual relationship, there could be no joint-employer relationship upon which the NLRB's order was premised.
The court considered whether any exceptions to mootness applied:
The "capable-of-repetition-yet-evading-review" exception did not apply because there was no reasonable expectation that the same complaining party would face the same action again. The joint-employer issue involved a unique factual context, and the companies could draft future contracts to avoid joint-employer status.
The "voluntary cessation" doctrine did not apply because the contract expired on its own terms, not through the parties' manipulation. Additionally, all parties opposed a finding of mootness, which mitigated concerns about jurisdictional manipulation.
The court vacated the NLRB's order, noting that vacatur is the established practice for moot cases, particularly when mootness results from circumstances not attributable to any party's attempt to manipulate the judicial process.
Regarding AWU's petition challenging the NLRB's remedies, the court:
Dismissed as jurisdictionally barred AWU's challenge to the Board's decision to sever the issue of a make-whole remedy for employees, because AWU failed to move for reconsideration of this decision before the Board as required by 29 U.S.C. § 160(e).
Dismissed as moot AWU's requests for additional prospective remedies because the contract had expired.
Denied AWU's request for retrospective compensatory relief (attorneys' fees and damages for reputational harm), finding the Board had not abused its discretion by ordering only the customary remedies for test-of-certification cases—bargaining, posting a notice of employee rights, and construing the certification period to begin when good-faith bargaining starts.
The court emphasized that the NLRB has broad discretion in fashioning remedies, and it need not explain its decision not to go beyond traditional relief in standard test-of-certification cases.
Significant Cases Cited
NLRB v. Raytheon Co., 398 U.S. 25 (1970): Established that compliance with an NLRB order does not render a case moot under the voluntary cessation doctrine.
U.S. Bancorp Mortg. Co. v. Bonner, 513 U.S. 18 (1994): Explained that the purpose of vacatur is to clear the path for future litigation when review was prevented through circumstances not attributable to the parties.
Boire v. Greyhound Corp., 376 U.S. 473 (1964): Established that employers can challenge NLRB certification decisions indirectly by refusing to bargain and raising objections in ensuing unfair labor practice proceedings.
UAW v. NLRB, 455 F.2d 1357 (D.C. Cir. 1971): Required the NLRB to provide reasoned explanations when denying unusual remedial requests, especially in cases with egregious violations.
NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416 (1947): Identified the "usual order" in test-of-certification cases as requiring bargaining and posting a notice.
Os-Db-Jv-2, LLC, JD-34-25, 12-CA-339997 (ALJ Decision)
This April 23, 2025 decision by Administrative Law Judge Michael P. Silverstein addresses allegations that OS-DB-JV-2, LLC violated Section 8(a)(5) of the National Labor Relations Act by refusing to furnish requested information to a union and unlawfully delaying the furnishing of additional information.
The case involves OS-DB-JV-2, LLC, a company providing maintenance and janitorial services at Veterans Administration hospitals in Puerto Rico, and Sindicato Puertorriqueño de Trabajadores y Trabajadoras, Local 1996, SEIU. The union was certified as the exclusive bargaining representative for maintenance and janitorial employees in October 2022, and the parties reached their first collective bargaining agreement effective June 23, 2023, through December 31, 2027.
On February 21, 2024, the union requested information regarding holiday pay, benefit days, pay records broken down by gender, payroll records, January 2024 pay raises, and work schedules. Despite multiple follow-up requests, the employer waited until April 17, 2024, to respond. Even then, the employer provided incomplete information, suggesting that some requests were no longer relevant because a collective bargaining agreement was now in place.
In his legal analysis, Judge Silverstein emphasized that Section 8(a)(5) imposes on employers a duty to supply requested information that enables unions to perform their representative duties. Information related to unit employees' terms and conditions of employment is presumptively relevant, and an employer must provide such information unless it rebuts the presumption of relevance or establishes an affirmative defense.
The judge rejected the employer's argument that previously relevant payroll information loses relevance once a new CBA is signed. He distinguished this case from an ALJ decision the employer relied on, noting that the union's information request was an exercise in due diligence to ensure proper administration of the new CBA, making baseline pay data from the preceding three-year period presumptively relevant.
Regarding the delay in answering about the January 2024 pay raises, Judge Silverstein found that the eight-week delay violated the Act. The duty to furnish information requires a reasonable, good-faith effort to respond as promptly as circumstances allow, and an unreasonable delay constitutes a violation just as much as a refusal.
Judge Silverstein ordered the employer to cease and desist from refusing to furnish requested information and delaying the furnishing of information. He also ordered the employer to post notices about the violations in both English and Spanish at its facilities and to electronically distribute these notices if the company customarily communicates with employees electronically.
Significant Cases Cited
Atlantic Veal & Lamb, LLC, 373 NLRB No. 19 (2024): Establishes the duty to supply information that enables a union to perform its representative duties.
Permanente Med. Group, Inc., 372 NLRB No. 51 (2023): Confirms employer's duty to provide requested information and identifies instances of unlawful delay.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Supreme Court case establishing the duty to provide information to enable union to perform its duties.
Murray American Energy, Inc., 370 NLRB No. 55 (2020): Establishes that employers must make reasonable, good-faith efforts to respond to information requests promptly.
Linwood Care Center, 367 NLRB No. 14 (2018): Found a six-week delay in providing wage information unreasonable when the information was not difficult to retrieve.