Did Google Violate the NLRA When It Fired 28 Workers Protesting Israel Contract?

Probably not.

Last week, Google reportedly fired 28 workers “for protesting the company's $1.2 billion contract to provide the Israeli government and military with cloud and artificial intelligence services.” NBC News reports:

The 28 firings come after nine employees were arrested Tuesday night following a sit-in at the company’s offices in Seattle, New York and Sunnyvale, California — including one at Google Cloud CEO Thomas Kurian’s office, according to the group that organized the demonstration, No Tech for Apartheid.

Based on this reporting, it sounds like nine employees engaged in the sit-in, but Google fired those nine employees and an additional nineteen employees who were not engaged in the sit-in. Though it may also be that all twenty-eight engaged in the sit-in but only nine stayed long enough to be arrested.

In this post, I will answer two questions raised by this story:

1. Is protesting an employer’s relationship with one of its clients a protected objective?

2. Assuming it is a protected objective, is a sit-in on the employer’s premises protected activity?

Protected Objectives

For question (1), the starting point is the Supreme Court’s decision in Eastex, which states generally that:

It is true, of course, that some concerted activity bears a less immediate relationship to employees' interests as employees than other such activity. We may assume that, at some point, the relationship becomes so attenuated that an activity cannot fairly be deemed to come within the "mutual aid or protection" clause.

The Supreme Court in Eastex makes it clear that there is some limit to what can be considered a protected objective, but it does not define that limit and instead states that drawing this line is a task for the Board.

In developing this part of Eastex, one of the lines that the Board has drawn, as articulated in Lutheran Social Services of Minnesota, is that “employee efforts to affect the ultimate direction and managerial policies of the business are beyond the scope of the clause.” For a recent administrative law judge case applying Lutheran Social Services, see Korean Resource Center.

In practice, what this all means is that if you are going to protest against business-management decisions, such as the decision of what clients your employer does business with, and have that protest deemed protected activity, you are going to need to be able to convincingly connect those business-management decisions to your own working conditions. Of course, in some sense, every business-management decision affects working conditions, but if the way in which it does so is too “attenuated,” it won’t get protection from the NLRA.

I have not seen what exactly the argument is for how significantly the Google-Israel contract affects the working conditions of Google employees or whether the workers involved in the protest have made an effort to consistently link the contract back to their own working conditions during their campaign. But I suspect that the link is probably too attenuated and that the protesters have almost entirely focused on Israeli atrocities as opposed to the way in which the contract relates back to their own working conditions.

Sit-Ins

The most favorable way to construe this sit-in is as an on-site work stoppage, the legality of which is governed by the 10-factor Quietflex test:

(1) the reason the employees have stopped working;

(2) whether the work stoppage was peaceful;

(3) whether the work stoppage interfered with production, or deprived the employer access to its property;

(4) whether employees had adequate opportunity to present grievances to management;

(5) whether employees were given any warning that they must leave the premises or face discharge;

(6) the duration of the work stoppage;

(7) whether employees were represented or had an established grievance procedure;

(8) whether employees remained on the premises beyond their shift;

(9) whether employees attempted to seize the employer’s property; and

(10) the reason for which employees were ultimately discharged.

In analyzing these 10 factors, the Board is supposed to focus on striking the appropriate balance between the right of workers to engage in work stoppages and the property rights of employers.

It can be hard to predict the outcome of these long, multi-factor tests and the news stories do not provide enough information to assess all of the factors. But one fact that is provided in the reporting is that the sit-in lasted for 9 hours. The on-site work stoppages that are found protected tend to be brief, with the line for what constitutes a reasonable duration being somewhere at or below 4 hours.

Based on the duration alone, it’s doubtful that this on-site work stoppage would be found protected even if protesting the Google-Israel contract was found to be a protected objective.