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Case number 24-1003 et al.

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Alphabet Workers Union Communication Workers of America Local 9009 Petitioner versus National Labor Relations Board.

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Ms.

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Campbell for Petitioner Alphabet Workers Union Communication Workers of America Local 9009.

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Mr. Silver for Petitioners Cognizant Technology Solutions U.S.

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Corporation and Google LLC.

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Mr. Heller for the respondent.

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Good morning.

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Good morning.

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And please the court.

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My name is Carla Campbell.

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I'm here on behalf of the Alphabet Workers Union petitioner and intervener in this case.

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The National Labor Relations Act makes the board responsible for remedying unfair labor practices.

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The board failed to do that in this case.

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Here, the employers failed to bargain with their employees chosen representative, my client, which is a clear violation of the act.

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The union does not challenge the board's choice of remedy, but rather that the board failed to engage in reasoned decision-making when choosing the appropriate remedy.

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The board denied the non-monetary remedies the union requested without explanation.

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The board severed the question of monetary remedies for resolution at some later unspecified time.

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Of course, the board has broad discretion to craft remedies.

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But it is an abuse of that discretion to simply refuse to award remedies without analysis or explanation.

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The award of what the board calls a traditional remedy, a bargaining order, does not excuse reasoned decision-making.

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Here, the board's rubber stamp award of a traditional remedy is an abdication of its duty to consider the requested remedies in light of the circumstances of this particular case

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What circumstances in this case make the traditional remedy inappropriate?

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Your honor, the complexity of this case with the joint employer question in particular makes some additional remedies appropriate.

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For example, what do you mean the complexity?

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This is a joint employer case.

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Sure, I can use the example of a bargaining schedule, which was one of the non-monetary remedies that the union requested in its own motion for summary judgment.

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The question will inevitably come up in bargaining sessions when we get to that point, whether both employers have to attend every session depending on what topic is discussed, whether it be wages or benefits or some

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term or condition that the employer might or might not have control over.

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And so a bargaining schedule would have aided the parties in setting bargaining by eliminating some of those issues.

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And that's, that's going to all depend on certification challenge as it would with any employer challenging certification.

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It sure any any bargaining order will itself will apply to any challenge of the certification and this is a test of certification.

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But the additional remedies for example, the schedule would not necessarily come into play in a single employer that doesn't have the complexity of.

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which employers have to be present for which bargaining session.

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That's an example.

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Do you have a view on whether the employer's petition here, employer's petition here is moot, given that the contract has ended?

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Thank you for that question.

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The court asked in its motion about mootness in two particular instances.

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The contract is one, the union does not, because the employers have

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not responded to the union's information requests in addition to the go hand in hand with the bargaining.

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We don't have direct knowledge of the status of the contract.

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However, the statement of work that's in the record was extended over a number of years.

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The original term was 2019 to 2020.

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It was extended through 2022.

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And my client's belief, although again not based on direct evidence, is that

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there is still a relationship between these two entities.

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But I will say, importantly, even if there was not, even if the contract had expired completely and Google is now contracting with some other labor supplier to perform this work on the YouTube music platform, that would still not make this case moot.

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Um, one of the reasons is that there are a number of pending ULP charges and for labor practice charges currently before the board.

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And contract ended at least putting the information we have so far, maybe we'll be corrected.

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The certification order was January, 2024 beginning of January, the contract ended.

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end of February.

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So it's only a two-month period, probably a little less, probably like seven or eight weeks, when the order was in effect to bargain and there still was a contractual relationship on which the certification order as to the joint employer issue was premised would have still been in effect.

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Because even if there was some other relationship, we don't have any idea what that relationship was or how it would back onto joint employer analysis.

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Sure.

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So I assume any of the claims for which you are seeking further remedies from the board would have to pertain.

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Let's assume, just for purposes of this question to you, that the relationship did end and their petitions moot.

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any of the extraordinary remedies you want would have to have been justified within that two month period.

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Is that correct?

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They would have to have been, they would have to have accrued between the certification period.

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January 3rd and February 29th.

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Correct.

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2024.

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But again, I'm happy to take that assumption and play it out.

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There's still a dispute that presently affects the rights of the parties.

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Because again, the board will inevitably face the joint employer question again if this court passes on it for the pending ULPs that happened during that period between certification and assuming the contract ended.

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The damages question.

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Do you have unfair labor practices in that two-month period?

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We have unfair labor practices that are pending after certification.

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after certification.

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Are the unfair labor practices targeted Cognizant or Google?

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Both.

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They rely on the same joint employer question in which the board is going to look to this court's decision on that.

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Even if the contract ended as we're making this hypothetical

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If the court were to uphold the joint employer finding of the board, then both Cognizant and Google would have to engage in effects bargaining for the effects of the end of the contract and how that would impact the bargaining unit.

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just the end of the contract doesn't absolve either party of its bargaining obligation.

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The board obviously had no ability to consider what remedies might be appropriate in the context of the contract ending at the time it made its decision awarding traditional remedies here.

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Correct.

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The remedies we've requested, some of them are retrospective and some of them are perspective.

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And so, for example, the cost of bargaining going prospectively, obviously that particular remedy would not apply if there was no longer a contract.

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But the retrospective remedies we've requested.

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Would an appeal still apply cognizant?

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Or does it just not apply to either one of them?

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I guess it would depend on the YouTube music platform still exists.

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I think we can analogize this to the public citizen case that the court mentioned in its order, a FERC case, where FERC decided not to build this particular power plan.

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So there was no live controversy between the parties anymore.

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the product, if you will, in this case, the YouTube music platform still exists.

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And so it's not moot in the sense that that product has gone away.

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There's some group of workers that are still doing the work to keep that site up and going and largely error-free.

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Again, I apologize to the court that I don't have the contract.

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But again, even if the contract ended and Google hired some other labor supplier, that work is still ongoing.

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And the charges that are before the board would still be a live controversy.

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I think I caught the answer to this early on in response to one of Judge Mollett's questions, but there are something like 60 cognizant employees at issue in this case, is that right?

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There were 41 that voted.

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I think there were closer to 50 in the actual bargaining unit.

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Let's take those 50.

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You don't know if those 50 cognizant employees are doing any work for Google.

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today?

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I do not.

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The other issue that the court raised, the rescission of the 2020 rule, I'll just mention that as my time expires, that my understanding is that the 2020 rule is actually still in effect.

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The 2020, the subsequent rule, it's called the 2023 rule, has been vacated by a federal court in any event

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course, the board engages in rulemaking to guide its own decision making.

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But ultimately, this court applies a common law standard.

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And so regardless of the rule that applies, then even if it had been rescinded, which I don't believe it has, it would not make the controversy moot.

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We'll give you a little time for rebuttal.

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Thank you.

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Morning, Your Honor.

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May it please the court, Matt Silvera for Google, and I also am presenting argument on behalf of Cognizant today.

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We're here today because the board misapplied a joint employer rule that they were actively seeking to replace.

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Let's start with Mootness to see if we're going to talk about joint employers.

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Sure.

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We thought about mootness when we filed our opening brief because the contract did expire in February.

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Why didn't you raise the issue and brief it other than just dropping a little tiny footnote?

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Because we don't think that the case is moot.

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You still have an obligation to help us understand the basis for our jurisdiction.

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I think just dropping a footnote saying the contract that is the basis for the entire ruling here.

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ended and not elaborating more.

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Sure.

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I'm happy to expand on now.

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I apologize for that.

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It's not moot because one, the board retained jurisdiction.

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Nobody gets to brief the other side of mootness.

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You're just developing it here now.

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Sure.

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So the board retained jurisdiction to issue a retrospective remedy.

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That's it severing the excello issue.

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And so there's still a live dispute because there's a joint employer ruling.

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that would be the premise for being able to issue that retrospective award if the court affirms the joint employer ruling.

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That issue is not before us.

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The separate issue is not part of the order on review.

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Sure, but this is still a live issue because, again, if the court were to affirm the joint employer ruling, then that exposes us to that retrospective remedy.

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So there still is that live dispute there.

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A little bit of rightness problem there.

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I don't think it's- Eminence problem.

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Well, no.

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And the other aspect of this, though- You can challenge that if and ever they rule on that.

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Well, but we wouldn't be able to challenge the joint employer ruling, because you would have ruled them the joint employer rule.

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And so if it's moving- What if they decide that there's no retrospective compensation due?

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You wouldn't challenge that decision, right?

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We wouldn't challenge that decision, but we would have lost the ability to challenge the joint employer ruling at that point.

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This is our only shot to challenge the joint employer ruling.

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We wouldn't be doing no work.

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What's that?

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The joint employer ruling will be doing no work.

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Well, the joint employer ruling has collateral consequences.

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As my opposing counsel noted, there are other ULPs that have been filed that are seeking to essentially leverage the joint employer finding here based, for instance, on the conclusion of the contract.

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So if it's all going to have to be redone, if it's all going to have to be

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redone to figure out, one, we don't know which unfair labor practices are targeted at which you or both of you at the same time, and whether they would still count as unfair labor practices if, in fact, certainly they pertain to a time period after the contract expired.

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So put aside these remedial questions.

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Put that aside.

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Sure.

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The contract has a contract expired.

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Yes, the contract expired in February twenty eight twenty twenty contractual relationship between the two of you.

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No, not whatsoever.

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Not as to the YouTube music platform.

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Google, I still believe any cognizant employees working in the YouTube music platform or have been any since February twenty ninth to twenty twenty.

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None in this bargaining unit.

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Certainly, I can make that representation.

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Okay, and so if we did not have them having preserved the excello issue, would this case be entirely moot?

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Again, so long as the court is to vacate the underlying joint employer ruling, per its usual practice, and SANS and, you know, under Monsignor, to allow re-litigation.

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Well, in SANS, VNLRB, this court has applied that same principle.

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Instead, as long as you're vacating the underlying decision,

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to allow relitigation of that issue, then that could work.

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But again, we do need that underlying joint employer ruling vacated.

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Otherwise, we're going to be stuck with it.

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we will have lost the ability to legally challenge.

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I thought you just said that you can get that, even if the case is moot.

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So long as the court vacates the underlying, yes, and understand the court can.

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Actually, that's not the picture, is if mootness isn't caused by the party appealing.

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And here, it's caused by the party appealing who ended the contract.

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I disagree.

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Why would you get the benefit of both?

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Yeah, I disagree.

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I don't believe that the mootness would be caused by the contract expiring.

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I don't think that's, that is not,

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the problem of the party.

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You have a contract that has a set term.

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And when the contract expires, that doesn't mean that we are the ones that rendered the issue moot.

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I mean, we do have these other remedy issues.

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But beyond that, it's a contract that expired of its own terms.

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That's different from terminating employees.

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You had a practice of extending it until the National Labor Relations Board sent you Google was a joint employer, and then it wasn't extended.

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I think there had been two or three extensions, right?

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But they were yearly.

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I mean, the way this contract was set up was to allow the parties to consider every year.

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I know, but the problem with vacature is you're having your cake and eating it too, right?

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You chose not to do the extension so that you wouldn't be bound by the board's decision.

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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.

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As I said, we're not advocating mootness, right?

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And we don't think that it is moot.

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But I'm saying if the court were to conclude that this case is moot,

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to saddle us.

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To be clear, your only basis for that is the Accelerate Reservation.

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The Accelerate Reservation and the collateral consequences of allowing that in joint political ruling to stand and not allowing us to re-litigate that issue in the pending ULPs.

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So that is where we are on mootness.

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This is why we didn't make the argument

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We don't think it's moot.

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For the future, there's a substantial issue.

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This is not a small mootness question.

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This is a very, very large one.

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And we expect counsel on jurisdictional matters to be a bit more forthcoming in their briefing on such issues.

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Just going forward, please.

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I understand, Your Honor.

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As for the actual joint employer ruling, if the court determines that the case is not moot and is not going to vacate, we do think that the board simply misapplied that rule.

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And we know it was actively trying to replace it at the time.

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And in doing so, it really did distort the operative rule and disregard the foundational precedence that the rule was expressly intended to codify.

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So we do think that the court

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should be reversing that joint employer ruling is arbitrary and capricious.

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If companies can't rely on the board to faithfully apply its own rules, then they can't structure their affairs with any reasonable expectation of compliance with those rules.

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Affirming would also upend countless outsourcing relationships.

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Under boards.

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Come back and tell me exactly which unfair labor practices you think keep this thing alive

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Which unfair labor practices?

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You said that was the other.

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You said both accepted.

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Oh, sorry.

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Yes.

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The union has filed an unfair labor practice based on the expiration of the contract.

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And that is premised on the concept that we were, in fact, joint employers.

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So if we can't challenge.

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Has the board ruled on that?

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No.

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The board is waiting on that.

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in part because we have this joint plural.

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So again, we're not going to be able to challenge.

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That is not before us.

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That is not before.

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That does not save this case from notice.

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Well, it does in so much as the collateral consequences.

[00:19:02] Speaker 05:
But again, if we vacate the board's decision, then that decision would have no collateral consequences.

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And in the new unfair labor practices about the contract expiring, you could make all over again the argument, which you may very well win,

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that you were not a joint employer and nothing about this dispute would get in the way of you winning that dispute.

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Correct.

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So long as the joint employer ruling is vacated, that is essential for any sort of mootness determination here.

[00:19:36] Speaker 02:
So you didn't argue mootness here because

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I'm still confused about it, because the whole premise is we want it vacated, which is dependent on mootness.

[00:19:45] Speaker 02:
It still seems odd to me that you didn't argue mootness and argue for vacature.

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Because we didn't think it was moot because of the fact that the board had retained the right to issue a retrospective remedy.

[00:19:55] Speaker 02:
But that would disappear with any mootness.

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Well, no.

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Well, unless the court were to vacate the joint clerks.

[00:20:05] Speaker 02:
Right.

[00:20:05] Speaker 02:
Well, that's nice of you.

[00:20:08] Speaker 02:
Yeah.

[00:20:08] Speaker ?:
OK.

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So, you know, as for the joint employer ruling, if the court wants to hear about that as well, I mean, the fundamental problem here is that in 2020, the board created a rule.

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It created its joint employer rule.

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And then the... Do you agree that governs this case?

[00:20:23] Speaker 03:
Yes.

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We do agree that the government's case.

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You agree that rule is still in effect?

[00:20:28] Speaker 03:
That is in effect.

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When the Eastern District of Texas vacated the 2023 rule, it also vacated the aspect of the 2023 rule that rescinded the 2020 rule, which means the 2020 rule comes back into place.

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So the 2020 rule is the operative rule.

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Now, when the board reached its determination in this adjudication,

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It noted that it had put out a notice of proposed rulemaking for the 2023 rule.

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In the adjudication, it didn't actually address any of the foundational precedents for the 2020 rule.

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And that's LERCO and TLI in Airborne Express.

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These were all literally the NLRB decisions that the board set in the 2020 rule.

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It was essentially adopting.

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It was saying, this is the path that we're going to take.

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We cited all those cases when we filed our request for review of the board, and they didn't distinguish any of them.

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They didn't take them on in any way.

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Yet in that same notice of proposed rulemaking, the board said, you know what, we disagree with TLI and LERCO in that line of cases.

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So we have fundamentally, they were not applying the rule that had been passed through the 2020 rule.

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And you can see that when you actually walk through the various sub-findings on the three essential terms and conditions of employment that they said supported a joint employer finding.

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If you look at supervision, the first thing they talked about was training.

[00:21:55] Speaker 03:
Well, the preamble to 2020 rule says, you know, we've considered training as an essential term or condition of employment, and we've concluded that's not going to be one of them.

[00:22:03] Speaker 03:
They settled with eight, and they said those are the eight exclusive terms and conditions of employment.

[00:22:08] Speaker 03:
When they talked about Google tools and processes.

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And again, this is a proprietary platform that Google has essentially contracted out to have people help to maintain the content right to ensure a cleaner and more accurate database is what the statement of work says.

[00:22:25] Speaker 03:
Obviously, you're needing Google tools and processes.

[00:22:29] Speaker 03:
The board, in its 2020 rule preamble, talked about the concept, the read factors, right, for independent contractors.

[00:22:36] Speaker 02:
Do they rely on tools and processes as a basis for joint employer in this case?

[00:22:40] Speaker 03:
The board has four sub-findings under supervision.

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One is training, which I said the 2020 rule said we exclude.

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Second is Google tools and processes, which again, the 2020 rule preamble says, actually, we don't find that instructive.

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Then it looks at prioritization and rates of performance.

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Prioritization is something that's talked about in LERCO.

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It's talked about in Southern California gas, the very board precedents that the 2020 rule was codifying and said, no, that's not indicative of a joint employer relationship.

[00:23:12] Speaker 03:
And then it looked at these QA rubrics.

[00:23:15] Speaker 03:
And the QA rubrics, that's fundamentally ensuring the performance that- I did say none of those factors are relevant in determining whether supervision

[00:23:24] Speaker 03:
Uh, it did not say no, but it didn't.

[00:23:28] Speaker 02:
Well, prioritization by themselves to join employer status.

[00:23:31] Speaker 02:
But at some point you got to look at something to figure out if you're supervising.

[00:23:35] Speaker 02:
Sure.

[00:23:35] Speaker 02:
But are training them and interacting with them daily with instructions on how to do their work and detailing and incredibly fine and minute

[00:23:49] Speaker 02:
levels, performance evaluations.

[00:23:52] Speaker 02:
You're telling me prior precedent says none of that is relevant.

[00:23:55] Speaker 03:
Yeah, I can speak to each of those.

[00:23:56] Speaker 03:
The training, I mean, that's advanced description of tasks, which is talked about in the rule as something that is permitted.

[00:24:05] Speaker 02:
That's a description when you're doing it every day.

[00:24:07] Speaker 03:
No, training happens at the, that's onboarding.

[00:24:09] Speaker 03:
That's when you start the job.

[00:24:10] Speaker 02:
No, you may continue training because there's new, there's records here about new tasks and new things coming along.

[00:24:16] Speaker 02:
Then they're having to train them in the process.

[00:24:18] Speaker 03:
Well, no, it's a, first of all, supervising, supervising them at an extraordinarily close level.

[00:24:24] Speaker 03:
I disagree with that view of the record, but again, the training is something that's advanced description of tasks.

[00:24:28] Speaker 03:
It really is.

[00:24:29] Speaker 02:
You're saying all this stuff is that the 2020 rules will never look at any of these things.

[00:24:32] Speaker 02:
What will they look at for supervision?

[00:24:34] Speaker 03:
The board will look at actually instructing individual employees on daily basis.

[00:24:39] Speaker 03:
That's not what we're talking about here.

[00:24:40] Speaker 03:
Training is something that Google created training materials that were given to companies.

[00:24:44] Speaker 02:
It's finding that that happened.

[00:24:46] Speaker 02:
What's that?

[00:24:46] Speaker 02:
If we read the order as finding that there was daily instruction on how to work, as well as extensive training, and this is sort of an ongoing process because things change, new issues come up.

[00:24:59] Speaker 03:
That was not the board's rationale.

[00:25:01] Speaker 02:
But if we were to read it that way, the board would have

[00:25:05] Speaker 02:
If a fair reading of the board's decision, you can, I'm not saying whether it is or not, but if there's a fair reading of the board's decision.

[00:25:11] Speaker 03:
The board didn't just rubber stamp the regional director's decision here.

[00:25:14] Speaker 03:
The board looks through all of these factors and actually disagreed with the regional director on some such as direction.

[00:25:19] Speaker 03:
So I don't think we can then, and they actually took what the regional director had relied on as direction and said, you know, we'll put that over here in the supervision category.

[00:25:27] Speaker 03:
That's their prerogative.

[00:25:29] Speaker 03:
But the point is, I don't think that you can basically give the board additional rationales other than the ones that they expressly provided in their order.

[00:25:37] Speaker 03:
And that's all that we were able to actually review.

[00:25:40] Speaker 02:
OK, thank you very much.

[00:25:57] Speaker 04:
Good morning, Your Honors.

[00:25:57] Speaker 04:
Joel Heller for the National Labor Relations Board.

[00:26:01] Speaker 04:
I will start with mootness.

[00:26:02] Speaker 04:
If the court would like to hear our view, I assume they do.

[00:26:05] Speaker 04:
So we also believe this case is not moot.

[00:26:08] Speaker 04:
For many of the same reasons that have already been stated, it actually is clear from the various statements made by the other councils that we just don't know on the basis of this record whether this work is still being done by cognizant employees that can be determined in a subsequent compliance proceeding done by cognizant employees.

[00:26:27] Speaker 02:
If it's.

[00:26:29] Speaker 02:
It's no longer under the contract that was under review and there's no contract.

[00:26:34] Speaker 02:
I'm not quite sure how cognizant employees are doing it if there's no contract at all.

[00:26:38] Speaker 02:
There's going to be someone needs to figure out what on earth is going on and then analyze what is on earth is going on in light of the joint employer rule.

[00:26:46] Speaker 02:
You couldn't rest on this record.

[00:26:47] Speaker 02:
Is that correct?

[00:26:48] Speaker 04:
That's correct.

[00:26:49] Speaker 02:
And also on this decision made on this record is moot.

[00:26:53] Speaker 04:
But sorry, my point was not that there's, we don't know if there are, not only that we don't know if there are cognizant employees doing this work, we don't know if there is a, if this contract was extended.

[00:27:02] Speaker 04:
I mean, I know Google says it hasn't been, but there's nothing in the record one way or the other on that point.

[00:27:08] Speaker 04:
That is something that could be determined in a subsequent compliance proceeding before the board.

[00:27:13] Speaker 04:
They could say there is no contract.

[00:27:14] Speaker 04:
This is essentially an impossible remedy.

[00:27:17] Speaker 04:
But on this record, we don't know that.

[00:27:20] Speaker 04:
But even assuming,

[00:27:21] Speaker 02:
that there is no contract newspaper articles about layoffs of employees and termination of the contract there's newspaper articles about the layoffs of those employees yes there may be other employees but even so let's assume the existence of a contract be relevant to whether there's a joint employer relationship and the terms of that contract

[00:27:43] Speaker 04:
There doesn't, if your question is, does there have to be a contract in order for there to be?

[00:27:47] Speaker 02:
That is not the question I asked.

[00:27:49] Speaker 02:
OK, sorry.

[00:27:49] Speaker 02:
No, I'm going to say it again.

[00:27:50] Speaker 04:
Could you say it again, please?

[00:27:52] Speaker 02:
Would the existence of a contract on its terms be relevant?

[00:27:56] Speaker 02:
Yes.

[00:27:56] Speaker 02:
In analyzing joint employers?

[00:27:58] Speaker 02:
Yes.

[00:27:58] Speaker 02:
OK.

[00:27:59] Speaker 02:
And we agree that it seems to me there's no dispute.

[00:28:04] Speaker 02:
I assume you don't.

[00:28:05] Speaker 02:
I mean, there's articles about this.

[00:28:07] Speaker 02:
There's no basis for including, you know, accusing counsel here of misrepresenting anything.

[00:28:12] Speaker 02:
There is no, the contract on which this decision was based is gone.

[00:28:17] Speaker 02:
OK.

[00:28:17] Speaker 02:
That is gone.

[00:28:19] Speaker 02:
They don't have a contract with Cognizant full stop.

[00:28:26] Speaker 02:
Don't have a contract.

[00:28:30] Speaker 02:
And so if there could be humans there that used to work for Cognizant that are still at Google, I don't know.

[00:28:37] Speaker 02:
But the purposes of a joint employer decision, which requires a very careful analysis of the relationship between the two companies, it does feel like there's been a very substantial upheaval

[00:28:49] Speaker 02:
here that would at a minimum require new analysis by the board.

[00:28:54] Speaker 04:
So I think if all of that is true, there's still a live controversy here.

[00:28:57] Speaker 04:
Because based on the order in this case, there are other remedies besides the direction to bargain, the present order to bargain, that go to Google if Google is a joint employer.

[00:29:11] Speaker 02:
The union's petition might not be moot.

[00:29:14] Speaker 02:
But Google and Cognizant's petition for review would be moot.

[00:29:17] Speaker 04:
I don't think so, because in addition to the order to bargain, there is the order to post the remedial notice or to mail it to the former employees.

[00:29:24] Speaker 04:
That is something that Google would still have to do if it was a joint employer.

[00:29:28] Speaker 04:
There's an ongoing cease and desist order.

[00:29:30] Speaker 02:
Does it have to be a joint employer at the time it does that posting and mailing?

[00:29:33] Speaker 04:
Would it have to?

[00:29:34] Speaker 04:
No, I don't think so, because it is saying it is saying.

[00:29:40] Speaker 02:
What does the notice say?

[00:29:42] Speaker 04:
It says a variety of things.

[00:29:43] Speaker 04:
It's in the board order.

[00:29:44] Speaker 04:
It says that.

[00:29:46] Speaker 04:
We will not refuse to bargain with Alphabet Workers Union over this.

[00:29:53] Speaker 02:
How is that not going to be mooted if, in fact?

[00:29:56] Speaker 04:
They still have to, even if they're not currently bargaining, there's other things it says.

[00:30:01] Speaker 02:
I know, but the poster's going to be inaccurate.

[00:30:05] Speaker 02:
And I don't know what they're supposed to post.

[00:30:08] Speaker 02:
Let me take a look.

[00:30:09] Speaker 02:
If there's no union, if the union, the employees of the union was elected to represent, aren't there?

[00:30:16] Speaker 02:
It shows.

[00:30:17] Speaker 02:
And there's no contract basis for it.

[00:30:20] Speaker 04:
It is, there's a statement of employee rights that is, I'm sorry, I'm trying to find it so I can get your exact language.

[00:30:28] Speaker 04:
Here.

[00:30:28] Speaker 04:
I think it's, are you a JA27?

[00:30:30] Speaker 04:
I am at the fourth page of the 2024 order appendix notice to employees that we are looking at.

[00:30:39] Speaker 04:
I apologize, I don't have the J.A.

[00:30:41] Speaker 04:
number with me, I'm sorry.

[00:30:43] Speaker 02:
Sorry, is it the 2024 order?

[00:30:45] Speaker 04:
The last page of the 2024 order.

[00:30:49] Speaker 04:
Yes.

[00:30:50] Speaker 05:
Yes.

[00:30:50] Speaker 04:
So it says federal law gives you the right to form, join, and assist a union, so on, so on.

[00:30:59] Speaker 05:
lead a little bit and ask instead of you saying what, what, instead of you pointing to parts of it, let me point to parts of it.

[00:31:06] Speaker 05:
And then you tell me why it's still not moot.

[00:31:09] Speaker 05:
It's referring to the alphabet workers union local 9009.

[00:31:12] Speaker 05:
And then from there on out, it just calls it the union.

[00:31:15] Speaker 05:
One of the things that says we will on request bargain with the union and how can Google on requests be required to bargain with the union when

[00:31:27] Speaker 05:
the union's employees are no longer with the union's members are no longer Google employees.

[00:31:33] Speaker 04:
So I think that doesn't what that if if you're correct on that, then I think what that means is perhaps that not everything in the in the posting is correct anymore.

[00:31:46] Speaker 04:
But that doesn't mean they don't have an obligation to send

[00:31:49] Speaker 04:
the notice and perhaps the notice will be amended to send an incorrect notice.

[00:31:54] Speaker 04:
No, not necessarily.

[00:31:55] Speaker 04:
They could just amend it unilaterally.

[00:31:56] Speaker 04:
They couldn't do it unilaterally.

[00:31:59] Speaker 04:
I would not go that far.

[00:32:01] Speaker 04:
But for example, in cases where the board wins in part and loses in part and we have to do a rule 19 judgment, sometimes that would involve a

[00:32:16] Speaker 04:
we would send, along with our proposed judgment, a proposed notice.

[00:32:21] Speaker 04:
And we could essentially conform the notice to the finding of the court so that they would be able to file a response.

[00:32:30] Speaker 04:
And the court would, of course, will on however it would like.

[00:32:34] Speaker 05:
I would point out also that if we just do what you want us to do and deny the petition, then

[00:32:41] Speaker 05:
we would not be putting you under any legal obligation to amend this incorrect notice.

[00:32:51] Speaker 02:
I'm not saying it's incorrect at the time of the board ruled, we're just saying now it would be inaccurate.

[00:32:55] Speaker 04:
I see what you're saying.

[00:32:57] Speaker 04:
I think that is something- Confusing.

[00:33:01] Speaker 04:
Yes.

[00:33:01] Speaker 02:
I mean- We have new employees in Google who wanna be represented by a different union and then they're being told that this is the union that I'm having.

[00:33:07] Speaker 04:
Right, so that is something I think I guess we would have to figure out

[00:33:10] Speaker 02:
Okay, so the bargaining order, so what else?

[00:33:13] Speaker 04:
Sorry?

[00:33:14] Speaker 02:
So what else is relevant?

[00:33:17] Speaker 04:
So the notice remedy.

[00:33:20] Speaker 02:
The notice remedy is sending the same thing to the employers?

[00:33:23] Speaker 04:
Sorry?

[00:33:24] Speaker 02:
And the notice remedy, is the content of the notice the same as this?

[00:33:28] Speaker 04:
This appendix?

[00:33:29] Speaker 02:
This poster.

[00:33:29] Speaker 02:
Yes.

[00:33:30] Speaker 02:
Yes.

[00:33:30] Speaker 02:
So that's got to get out also.

[00:33:33] Speaker 02:
That's got to get revisited.

[00:33:34] Speaker 04:
Revisited.

[00:33:35] Speaker 04:
I'm not sure it would.

[00:33:35] Speaker 04:
It's out altogether.

[00:33:36] Speaker 04:
And that's it.

[00:33:38] Speaker 04:
Also the there's an ongoing.

[00:33:41] Speaker 04:
Sorry.

[00:33:42] Speaker 02:
Surely this has happened for the board before.

[00:33:43] Speaker 02:
Let's assume at least your counsel for Google and Cognizant will confirm no implied contract or unwritten contract.

[00:33:54] Speaker 02:
And when the press says that the employees are laid off, that they aren't still working for

[00:33:59] Speaker 02:
Google.

[00:34:03] Speaker 02:
That's the notice they're supposed to send.

[00:34:06] Speaker 02:
You had rights.

[00:34:08] Speaker 02:
They weren't adhered to for two months.

[00:34:12] Speaker 02:
Sorry.

[00:34:13] Speaker 04:
Perhaps.

[00:34:14] Speaker 04:
I mean, there is a reason why these notices are posted.

[00:34:18] Speaker 04:
There is an informational aspect to them so that employees are aware of their rights and are aware that there has been a violation.

[00:34:25] Speaker 04:
Even if the remedy, I mean, there are notice postings, even if there are, is there's no other remedy.

[00:34:33] Speaker 02:
And you, I suppose.

[00:34:38] Speaker 02:
I think you could analogize it precedent of issuing these notices when 100% of the employees are no longer working.

[00:34:51] Speaker 04:
And I think an analogous situation is when a business has closed.

[00:34:56] Speaker 04:
There was a recent decision out of the Second Circuit where it was a school and the school claimed that it had closed.

[00:35:03] Speaker 04:
They no longer had any employees.

[00:35:05] Speaker 04:
And the facts aren't exactly the same because

[00:35:10] Speaker 04:
And because the question in that case was whether there should have, one of the questions in the case was whether there should have been an election at all.

[00:35:18] Speaker 04:
Whereas no one disagrees there should be an election here.

[00:35:21] Speaker 04:
But the fact that is analogous is that there was the argument that there simply are no other, there are no employees in this bargaining unit anymore.

[00:35:31] Speaker 04:
And the court, the Second Circuit, enforced the board's order in that case.

[00:35:35] Speaker 04:
I'm not sure, it was one of those,

[00:35:38] Speaker 04:
memorandum opinions.

[00:35:39] Speaker 04:
So I'm not sure how much detail was in the opinion itself.

[00:35:42] Speaker 02:
What was their rationale?

[00:35:44] Speaker 04:
I think similar to what I was saying is that there is this informational aspect to the order that providing the employees with notice of their rights, notice of the violation that had occurred.

[00:35:58] Speaker 02:
I mean, cognizant could send the notice.

[00:36:02] Speaker 04:
But both Google and Cognizant violated the act.

[00:36:05] Speaker 04:
And so that is, it's important.

[00:36:06] Speaker 02:
Presumably they don't both have to mail the notice, even if the contract were still in effect, only one of them has to send it, correct?

[00:36:12] Speaker 02:
Did you say they both have to send it?

[00:36:14] Speaker 02:
Everyone's going to be getting all this duplicate mail?

[00:36:17] Speaker 02:
That can't be right.

[00:36:18] Speaker 02:
And presumably Cognizant is the one that has

[00:36:20] Speaker 02:
all the personnel record information, including addresses of employees to mail things to.

[00:36:24] Speaker 02:
So I don't, the question here is whether Google is a joint employer or not, whether Cognizant was an employer, Cognizant- That's correct, that's correct.

[00:36:32] Speaker 02:
So that remedy could still run against Cognizant if one were to think, I mean, put aside that the notice might have to be rewritten or could just be coming from Cognizant, I don't know.

[00:36:47] Speaker 02:
Cognizant has a dispute of that.

[00:36:49] Speaker 02:
I assume in joint employer cases they don't both duplicate sending notices.

[00:36:56] Speaker 04:
I wouldn't think so for the reason you said, but I guess I can't say 100% for sure.

[00:37:00] Speaker 02:
Even if a notice still has to go, a congressman can send it.

[00:37:05] Speaker 04:
I think it would be signed by

[00:37:12] Speaker 04:
The notices are typically signed by representatives from the employer.

[00:37:16] Speaker 04:
So it might be that both Cognizant and, even if it's just one copy of the notice, maybe both Cognizant and Google representatives sign it.

[00:37:27] Speaker 04:
So other points, there's the, I know you've

[00:37:29] Speaker 04:
Been through this with the other counsel.

[00:37:31] Speaker 04:
But there are these other pending unfair labor practice charges that are being investigated before the board.

[00:37:36] Speaker 04:
And Google's liability under those would be keyed to its finding as a joint employer.

[00:37:42] Speaker 04:
There's the severed make whole remedy.

[00:37:44] Speaker 04:
And if the board subsequently does issue that remedy, the scope of Google's monetary liability under that remedy would depend on whether it was a joint employer.

[00:37:53] Speaker 02:
Is it right that if, so if, if this all feels like stuff we don't have the right record in front of us for to decide any of these issues and it seems like we are, would be deciding an issue that it just doesn't reflect the facts of the case as it comes to us.

[00:38:11] Speaker 02:
If we, so we send this back and vacate it.

[00:38:15] Speaker 02:
Let's just decide vacatur first.

[00:38:17] Speaker 02:
If we send it back to the board and say the world has shifted here.

[00:38:23] Speaker 02:
whatever the relationship is, if anything, it's nothing remotely like, as best we can tell what it was before, you all need to do a do-over here.

[00:38:31] Speaker 02:
Would that do-over include a fresh determination of what of this, because certification issues are forward-looking, wouldn't you have to do a fresh determination of whether, as of the day the board looks at the case again, let's just say six months from now, there is

[00:38:47] Speaker 02:
to a joint employer relationship?

[00:38:48] Speaker 04:
I think only as to the prospective aspects of the remedy and the bargaining aspect of it, but not as to these other remedies we are discussing, because they have to do with it.

[00:38:57] Speaker 02:
If vacated, you would have to, in determining these new remedial issues that didn't exist before the contract ended.

[00:39:06] Speaker 04:
But they did exist before the contract ended.

[00:39:08] Speaker 04:
I believe these other, the liability from a call relief, if the board orders that,

[00:39:16] Speaker 02:
That's the reserved issue.

[00:39:19] Speaker 04:
Sorry?

[00:39:19] Speaker 02:
That's the reserved issue.

[00:39:20] Speaker 04:
Yes, the separate issue.

[00:39:21] Speaker 04:
Correct.

[00:39:21] Speaker 02:
Part of this case at all.

[00:39:23] Speaker 04:
The merits of it are not part of this issue at all.

[00:39:24] Speaker 04:
But how much Google would owe under that remedy if the board issues it depends on whether it was a joint employer at the time it was refusing to bargain.

[00:39:38] Speaker 02:
I get us to the remedies that are before us now that we want to know.

[00:39:42] Speaker 02:
But as to something, let's say two years from now, the board gets around to looking at that issue.

[00:39:48] Speaker 02:
Does it not have some obligation to look at it under the circumstances of the time it's ruling?

[00:39:53] Speaker 04:
Because it looks at it at the time the violation occurred.

[00:39:56] Speaker 04:
So if there was a refusal to bargain while the old contract was still in effect, then the joint employer status of Google and Cognizant

[00:40:07] Speaker 04:
is determined based on the facts then in existence at the time of the filing.

[00:40:14] Speaker 02:
And the board's gonna decide that somehow something extraordinary happened in the certification challenge to make make whole remedy appropriate when the certification only existed for two months?

[00:40:24] Speaker 04:
if the board does issue that remedy, and we're assuming that there is no more contract.

[00:40:31] Speaker 02:
It's a great case to take on for Excello, wouldn't it, where there's only a two-month relation?

[00:40:34] Speaker 02:
I mean, you're going to have a lot of issues to deal with, and let's do it where there's only a two-month relationship.

[00:40:38] Speaker 02:
I don't know what make-hole remedy someone's going to get for two months.

[00:40:41] Speaker 02:
If it is a... If someone wanted to challenge the certification.

[00:40:43] Speaker 02:
I mean, the board would really... I'm sorry, I don't... I mean, I will say I will have a lot of questions in that case.

[00:40:51] Speaker 04:
I'm sure you will, and I'll be here to answer them.

[00:40:54] Speaker 04:
I don't think any of that actually goes to the mootness point, because you can say, well, it would be silly for the board to issue a remedy for only two months worth of failure to bargain and excel a remedy for only two months of bargaining.

[00:41:09] Speaker 04:
But if it was going to make that silly choice, then it would be doing so based on the

[00:41:17] Speaker 04:
relationship that existed between Google and Cognizant at that time.

[00:41:21] Speaker 04:
And so that's why that question is still alive.

[00:41:26] Speaker 02:
Is there not some level of rationality that we could assume on the part of the agency?

[00:41:34] Speaker 02:
Or not?

[00:41:36] Speaker 02:
Whether it's Article 3 rightness, eminence, something that just seems to me

[00:41:48] Speaker 02:
I'm having a lot of trouble conceiving that that one is ever coming to fruition.

[00:41:54] Speaker 04:
So you just that the the board might not ever issue an Excel remedy in this case precedent.

[00:42:01] Speaker 02:
This is where we are.

[00:42:02] Speaker 02:
There's all kinds of problems with trying to do a make whole remedy and and it would have to be a case where traditional remedies for a challenge in a case where they this is their only chance to challenge the basis for certificate certification challenge.

[00:42:19] Speaker 02:
It's made.

[00:42:22] Speaker 02:
I mean, it just seems to me.

[00:42:25] Speaker 04:
So is this a kind of?

[00:42:27] Speaker 02:
We don't even know when they're going to rule on this darn thing.

[00:42:29] Speaker 04:
That's correct.

[00:42:30] Speaker 04:
Right.

[00:42:31] Speaker 04:
I think what I can say is that there's a non-speculative chance that the board could issue an Excel remedy as to this case.

[00:42:39] Speaker 04:
And looking at that FERC case, that seems to be the standard.

[00:42:44] Speaker 02:
I was really going to put it in the speculative category, given we don't even know if and when they're going to rule on it.

[00:42:50] Speaker 02:
And then given this change in the factual circumstances, which would seem to be like the worst possible factual scenario in which to think.

[00:43:00] Speaker 02:
a make whole remedy is appropriate because it was only two months.

[00:43:03] Speaker 02:
There's no identification of exceptional misconduct or bad behavior whatsoever.

[00:43:09] Speaker 02:
And then you had a very serious issue just because we don't have much joint employer precedent.

[00:43:14] Speaker 02:
There's nothing to say who wins on the merits at the end of the day, but it was a very serious issue that needed to get litigated.

[00:43:19] Speaker 02:
Can you imagine a worst vehicle?

[00:43:22] Speaker 02:
Can you imagine a worst vehicle for the board to say, this is the one we're gonna

[00:43:27] Speaker 04:
Well, then I'm happy to say I have these other arguments as well.

[00:43:30] Speaker 04:
If you think, well, that one's too speculative, then we still have.

[00:43:34] Speaker 04:
We've been over it before, so I don't want to repeat myself.

[00:43:35] Speaker 04:
But there's the posting issue.

[00:43:37] Speaker 04:
There's the other pending unfair labor practice charges, which again are based on conduct that happened.

[00:43:43] Speaker 04:
while the facts were as were litigated in this case.

[00:43:46] Speaker 04:
And so there would be nothing new for the board to analyze to determine if there's a joint.

[00:43:52] Speaker 04:
If the question is, is there a joint employer relationship a year from now?

[00:43:55] Speaker 04:
Sure.

[00:43:55] Speaker 04:
We would have to look at a different record.

[00:43:57] Speaker 04:
But if the question is, was there one at the time this case was litigated?

[00:44:01] Speaker 04:
and those other amphora labor practices, the pending ones, go to that question, then I don't think the board would not have to reanalyze a new record to come up with its joint employer determination.

[00:44:16] Speaker 02:
If it's not moot.

[00:44:26] Speaker 04:
In my last minutes, if it's not moot.

[00:44:28] Speaker 05:
I have a couple merits.

[00:44:31] Speaker ?:
Sure.

[00:44:31] Speaker 05:
The Google managers did not work side by side in person or virtually with the Cognizant employees, correct?

[00:44:41] Speaker 04:
They didn't work side by side.

[00:44:42] Speaker 04:
This was largely a remote workforce.

[00:44:45] Speaker 04:
There was plenty of interaction between Google managers and the Cognizant workforce through emails, direct messages, those kind of things.

[00:44:57] Speaker 05:
Google managers did not provide oral instructions on how the cognizant employees would perform their jobs.

[00:45:04] Speaker 05:
Is that correct?

[00:45:04] Speaker 04:
That is not correct, no.

[00:45:06] Speaker 05:
What oral instructions did they give?

[00:45:08] Speaker 04:
They instructed the board's finding was that Google instructed Cognizant employees how to perform that work.

[00:45:16] Speaker 04:
We see that at the outset, when there's training at the outset, we see that as there are new assignments being, new projects being assigned.

[00:45:26] Speaker 04:
And for example, there is testimony where Cognizant employees say, well, when Google was introducing a new

[00:45:35] Speaker 04:
workflow, I think is the name, that we would watch them do the work so that we would know how to do it.

[00:45:43] Speaker 04:
There are emails between, you look skeptical.

[00:45:48] Speaker 05:
Well, only because everything you've said, including emails, sounds like it may very well be not oral instructions.

[00:45:54] Speaker 04:
Oh, you're drawing a distinction between oral versus written?

[00:45:56] Speaker 05:
Yeah.

[00:45:58] Speaker 05:
I'm not saying it's a distinction that's going to decide the case, but I was just trying to get

[00:46:02] Speaker 05:
The fact straight, I think that the Google brief says that Google managers did not work side by side with cognizant employees in person or virtually as they completed tasks, providing quote, oral instructions on how to perform their jobs.

[00:46:21] Speaker 05:
And if that's wrong, let me know it's wrong.

[00:46:26] Speaker 04:
Let's see, is there any examples of oral instructions versus written instructions?

[00:46:33] Speaker 04:
I guess I don't know for sure in the example I just gave you where they were observing the Google employee do the work in order to learn how to do it if there was conversation at the time.

[00:46:43] Speaker 04:
I think at the outset, there is training at the outset, which I guess I can't say 100% for sure, but assumed had some oral component to it.

[00:46:52] Speaker 04:
They didn't just show them the PowerPoint silently.

[00:46:56] Speaker 05:
Google also says that Google managers did not provide individualized performance feedback.

[00:47:02] Speaker 05:
Is that correct?

[00:47:04] Speaker 04:
No.

[00:47:04] Speaker 04:
The Google employees reviewed some of the quality analysis, the QA scores, and had discussions with Cognizant employees about them.

[00:47:14] Speaker 04:
There's testimony about that.

[00:47:15] Speaker 02:
Between Google and the employee.

[00:47:18] Speaker 04:
And the individual employees.

[00:47:19] Speaker 04:
Yes, there is some evidence of that.

[00:47:21] Speaker 02:
Email versus vocalized because they were remote.

[00:47:26] Speaker 04:
I don't know if it was a phone call or an email.

[00:47:28] Speaker 02:
Right.

[00:47:29] Speaker 02:
I'm not sure.

[00:47:35] Speaker 02:
Does it matter for joint employer whether it's oral or written as long as it's real time given in a virtual workplace?

[00:47:45] Speaker 04:
Right.

[00:47:46] Speaker 04:
I don't see any reason why it would.

[00:47:47] Speaker 04:
And there's certainly nothing in the regulation that makes that distinction.

[00:47:51] Speaker 04:
the supervision, the hours, the benefits.

[00:47:56] Speaker 04:
The board went through how there's evidence of direct and immediate

[00:48:00] Speaker 04:
control over those as those terms are.

[00:48:02] Speaker 05:
I've got a couple more.

[00:48:05] Speaker 05:
I just want to see if you're on the same page as Google or not.

[00:48:07] Speaker 05:
And then I know you have arguments that even if Google's correct about these facts, they're still wrong about the outcome.

[00:48:13] Speaker 05:
They say, nor did Cognizant cede control over everything except hiring, firing, and compensation to Google, giving Google exclusive daily supervision over Cognizant employees.

[00:48:27] Speaker 04:
Sorry, can you say that again?

[00:48:28] Speaker 05:
And it's comparing contrasting with international transfer of Florida.

[00:48:32] Speaker 05:
It's saying Google, sorry.

[00:48:37] Speaker 05:
Cognizant did not cede control over everything to Google.

[00:48:43] Speaker 05:
You definitely heard of that.

[00:48:45] Speaker 05:
And then Cognizant did not cede control over everything to Google except for hiring, firing, and compensation.

[00:48:53] Speaker 05:
That's also true.

[00:48:54] Speaker 04:
That's true.

[00:48:55] Speaker 05:
Okay.

[00:48:55] Speaker 05:
And they didn't give Google exclusive daily supervision over cognizant.

[00:49:01] Speaker 05:
That's true.

[00:49:02] Speaker 05:
And then I think this is my last one.

[00:49:04] Speaker 05:
Nope.

[00:49:04] Speaker 05:
That was my last one.

[00:49:05] Speaker 05:
Okay.

[00:49:05] Speaker 05:
I appreciate your patience and judgment.

[00:49:08] Speaker 04:
Sure.

[00:49:09] Speaker 04:
So when we're talking about supervision, just to respond to something that Google's counsel said before, the board's finding as to supervision was that its top line finding was that Google actually instructed cognitive employees how to perform their work.

[00:49:26] Speaker 04:
So the top line finding was instruction.

[00:49:28] Speaker 04:
There's components of that, examples of the training and the tools and resources.

[00:49:32] Speaker 04:
But those were not the board's independent reasons for finding supervision.

[00:49:36] Speaker 04:
It was going through instructions.

[00:49:38] Speaker 04:
specific examples in the record of those and again maybe they were oral maybe they were written i don't know there was here's a written one where the employee a college employee asked the google counterpart could you give me some specific protocols on how to do this particular task it was if there was a missing lyrics on one of the youtube music pages entries and the google

[00:50:01] Speaker 04:
employee responded with a link saying, here it is.

[00:50:04] Speaker 04:
Here's the specific protocols.

[00:50:06] Speaker 04:
There is this Google-created resource that Cognizant employees use that provides what a Cognizant employee called very specific guidelines as to a variety of tasks.

[00:50:18] Speaker 04:
We talked about how they observed the Google employees do the work so that they know how to do it.

[00:50:22] Speaker 04:
This all goes to the details, control over the details of the performance of the work, which is how the supervision is defined in the regulation.

[00:50:32] Speaker 04:
There's a well said you've read the briefs.

[00:50:35] Speaker 04:
There's plenty of evidence as to the performance metrics that Google sets as to the qualitative rubrics that Google creates.

[00:50:43] Speaker 04:
And one of those one of the questions in the QA is that the cognizant people are supposed to answer is whether the

[00:50:51] Speaker 04:
when performing the tasks, whether the task protocol was followed.

[00:50:55] Speaker 04:
So Google on the front end is setting what those protocols are.

[00:51:00] Speaker 04:
And then on the back end, they're telling Cognizant you need to evaluate and appraise the work based on whether they have conformed with those protocols that we have set.

[00:51:09] Speaker 05:
What should we do if we think the board was right about the board

[00:51:20] Speaker 05:
found that supervision hours and benefits factors support a joint employer.

[00:51:26] Speaker 05:
What should we do if we find that they were right about one or some of those factors and wrong about one or some of those three factors?

[00:51:33] Speaker 04:
Sure.

[00:51:34] Speaker 04:
Well, as a legal matter under the regulation, you need one or more of those essential terms and conditions.

[00:51:41] Speaker 04:
So as a legal matter, there could be a joint employer finding based on only one of those.

[00:51:46] Speaker 04:
I think if the question is once the board has now

[00:51:49] Speaker 04:
has made its finding, you knock out one of them and keep the other two or two and one or what have you.

[00:51:56] Speaker 04:
I think generally what would happen is remand to the board to reweigh the remaining factors and see if it comes out the same way.

[00:52:04] Speaker 04:
I think it's instructive when making the distinction between what counts for joint employer status and the things that are objectives, basic ground rules, all these words that Google is throwing around to look at this court's decision in Browning Ferris when it sets out a couple examples where it says this would not count as joint employer.

[00:52:22] Speaker 04:
evidence, and that's things like global oversight, advanced description of the tasks to be performed.

[00:52:28] Speaker 04:
And I think the facts here show that Google's evidence, Google's control doesn't fit into those boxes.

[00:52:34] Speaker 04:
It's not, it's not solely an advanced description because it's ongoing and it's not just a description, kind of a service level description.

[00:52:41] Speaker 04:
It's very specific.

[00:52:42] Speaker 04:
So the specificity and the ongoing nature of Google's control is what separates this from basic ground rules or those kind of commonplace aspects of

[00:52:51] Speaker 04:
of party-to-party contracting.

[00:52:54] Speaker 04:
And Google talks a lot, and this will be my last point unless there are other questions.

[00:52:59] Speaker 04:
Google talks a lot about how it kind of needs this level of control in order for the YouTube music program to work.

[00:53:05] Speaker 04:
It's very complicated.

[00:53:06] Speaker 04:
It's very important.

[00:53:07] Speaker 04:
And that's fine.

[00:53:08] Speaker 04:
But nothing in the board's decision prohibits Google from retaining this amount of control over the employees.

[00:53:15] Speaker 04:
But the point is when it makes the decision to retain that control over itself, that carries with it legal obligations and legal consequences and obligations to the employees who are subject to that control.

[00:53:26] Speaker 05:
Can I see what you're, what would, what if anything is wrong with this?

[00:53:31] Speaker 05:
Now I'm going, I am going back to Moodness.

[00:53:33] Speaker 05:
Okay.

[00:53:34] Speaker 05:
We dismiss Google's petition on Moodness grounds.

[00:53:40] Speaker 05:
We dismiss all but the retrospective compensation argument part of the union's petition on mootness grounds.

[00:53:53] Speaker 05:
We deny the union's petition with

[00:53:57] Speaker 05:
The part of it that says it was improper for the board to segregate out the compensation, retrospective compensation question.

[00:54:08] Speaker 05:
We vacate the board's decision under the SANS precedent that basically does Monsignor, but in an NLRB context.

[00:54:19] Speaker 05:
What that leaves for the board to do is to decide the retrospective compensation question.

[00:54:25] Speaker 05:
When it does that, it will have to once again decide whether Google is a joint employer.

[00:54:32] Speaker 05:
If it does decide that Google is once again a joint employer, it will decide whether to overrule the board precedent and apply retrospective compensation.

[00:54:44] Speaker 05:
I know, what are all the things you think is wrong with this?

[00:54:48] Speaker 04:
Well, one is that it would require the board to require re-litigation of an issue that has already been decided.

[00:54:54] Speaker 04:
So it would be a lot of extra, I would say, unnecessary work.

[00:54:58] Speaker 04:
The joint employer issue?

[00:54:59] Speaker 02:
The joint employer issue.

[00:55:01] Speaker 02:
It was decided on, if representations were accurate, decided in a universe that doesn't exist.

[00:55:06] Speaker 02:
They wouldn't be redoing it over.

[00:55:09] Speaker 02:
They would have to say, OK, what's the relationship now, if any?

[00:55:11] Speaker 02:
And what are the terms of it?

[00:55:14] Speaker 04:
I don't think so, because if I understand Judge Walker's

[00:55:17] Speaker 04:
scenario here, what the board is deciding is whether to issue the, it's using shorthand, the Excello remedy for the period at which Google and Kainizen were refusing to bargain.

[00:55:32] Speaker 02:
Oh, I misunderstood.

[00:55:32] Speaker 02:
I thought he was saying we would deny that one.

[00:55:36] Speaker 02:
Because, OK, I misunderstood the question.

[00:55:38] Speaker 02:
I apologize.

[00:55:39] Speaker 05:
Well, I'm not.

[00:55:40] Speaker 02:
I thought Excello was out.

[00:55:43] Speaker 05:
we would deny the unions part of their petition where they say, you should have done it already.

[00:55:48] Speaker 04:
You should have done the Excello.

[00:55:51] Speaker 04:
And so my understanding, correct me if I'm wrong, please, is that so then what is still before the board in this case is the separate issue of whether to issue an Excello remedy in this case.

[00:56:06] Speaker 04:
And if that's true, the board would have to decide the scope of Google's remedy is

[00:56:13] Speaker 04:
under the Excel remedy would be the time at which it was a joint employer, which was when the facts existed as was litigated here.

[00:56:21] Speaker 04:
So if you're saying it's really just for those two months, then it was Google a joint employer with an obligation to bargain in January and February of 2024.

[00:56:30] Speaker 04:
And so those are the facts that the board has already looked at and parties have already litigated.

[00:56:35] Speaker 05:
But I suppose the board actually would not have to reach the merits on that question if it decided that the requested compensation remedy

[00:56:44] Speaker 04:
is inappropriate.

[00:56:46] Speaker 04:
That's correct.

[00:56:46] Speaker 04:
If there's not going to be that remedy, they wouldn't.

[00:56:48] Speaker 04:
Right.

[00:56:50] Speaker 04:
So what let's.

[00:56:52] Speaker 02:
The only issue is then they would have to decide that it is appropriate.

[00:56:57] Speaker 05:
And only if that would they have to, in your words, redo the merits.

[00:57:03] Speaker 05:
Right.

[00:57:04] Speaker 05:
I think that's true.

[00:57:05] Speaker 02:
Do they have to do anything more than say we hereby adopt again our prior record?

[00:57:13] Speaker 02:
because we vacated it.

[00:57:15] Speaker 02:
So they're going to, you know, we can do that.

[00:57:17] Speaker 02:
I don't know if they'll be wise or not, but they can do that.

[00:57:20] Speaker 04:
And they would just see what I said before.

[00:57:25] Speaker 02:
Again, assuming they want to do this for their Excello.

[00:57:28] Speaker 02:
This is the vehicle they want for Excello.

[00:57:31] Speaker 02:
And then both issues would come up to us.

[00:57:36] Speaker 04:
I can see that happening.

[00:57:38] Speaker 04:
I think that

[00:57:40] Speaker 04:
I mean, there are the other reasons why I think it's not moot, aside from the excellent remedy.

[00:57:43] Speaker 04:
But if you're rejecting me on that one, what else would be the problem with that?

[00:57:49] Speaker 04:
I think there is a virtue to having developed law in this area.

[00:57:57] Speaker 04:
And I realize if it is truly moot, you can't

[00:57:59] Speaker 04:
Do an advisory opinion on asking you to do that, but in considering the moodiness issue.

[00:58:04] Speaker 04:
If it's a close call, perhaps one consideration is this is an area where there hasn't been a lot of.

[00:58:12] Speaker 04:
Guidance there aren't that many of these cases, even though I seem to be here for all of them and.

[00:58:19] Speaker 04:
So that is one thing to consider.

[00:58:21] Speaker 02:
And the fact that- Unfortunately, keeping you busy is not part of our mootness analysis.

[00:58:25] Speaker 02:
Nor is there any rounding up because of this jurisdiction.

[00:58:29] Speaker 05:
Don't you like being here?

[00:58:30] Speaker 04:
Oh, I love being here.

[00:58:31] Speaker 04:
This is fun.

[00:58:32] Speaker 04:
I think we like you being here.

[00:58:34] Speaker 04:
Yes, thank you.

[00:58:35] Speaker 04:
And just the fact that these employees voted unanimously for union representation.

[00:58:41] Speaker 04:
And it's important to vindicate the exercise of their rights under the NLRA.

[00:58:48] Speaker 04:
I hope that this case stays live for that purpose and for the others we've discussed.

[00:58:57] Speaker 02:
Thank you very much, counsel.

[00:58:58] Speaker 02:
Thank you.

[00:58:58] Speaker 02:
Appreciate your assistance.

[00:58:59] Speaker 02:
All right, we'll give you, I guess, Ms.

[00:59:04] Speaker 02:
Campbell, you want two minutes of rebuttal, and then we'll give you the same amount, Mr. Silvera.

[00:59:10] Speaker 02:
Did I say that right, Silvera?

[00:59:11] Speaker 02:
Yes, correct.

[00:59:18] Speaker 01:
I'll be brief, but I would be remiss if I didn't make this point.

[00:59:23] Speaker 01:
The union urges this panel to deny the petitioner's, the employer's petition and enforce the board's order, regardless of whatever the court decides to do with the union's separate petition for additional remedies.

[00:59:38] Speaker 01:
And the reason is this.

[00:59:40] Speaker 01:
The board certified this unit in May of 2023.

[00:59:46] Speaker 01:
Based on my understanding of council's representation, the contract ended in February of 2024, if I recall correctly.

[00:59:54] Speaker 01:
So we had eight or so months under which these employers had an obligation to bargain with their employees.

[01:00:03] Speaker 01:
And they still have an obligation to bargain over the effects of ending a contract, the effects of which were 50 people

[01:00:16] Speaker 01:
in the Austin, Texas area lost their jobs, jobs that they use to pay their rent and support their families.

[01:00:24] Speaker 01:
And so both Google and Cognizant have an obligation to bargain, even if it's one last time, over the effects of the termination of that contract.

[01:00:36] Speaker 01:
Usually those negotiations have a lot to do with severance and those types of things.

[01:00:42] Speaker 05:
I genuinely do not know if they

[01:00:47] Speaker 05:
lost their jobs with cognizant.

[01:00:49] Speaker 05:
That's one possibility.

[01:00:50] Speaker 05:
Were transferred within cognizant to other cognizant responsibilities.

[01:00:54] Speaker 05:
That's a second possibility.

[01:00:56] Speaker 05:
Or you don't know.

[01:00:57] Speaker 05:
That's the third possibility.

[01:00:59] Speaker 01:
I know that the workers in the unit that I got to know during hearing and the election process were terminated sometime after the unit was certified.

[01:01:12] Speaker 01:
And we think that additional- Terminated by cognizant.

[01:01:15] Speaker 01:
terminated jointly by Google and Cognizant, correct?

[01:01:18] Speaker 01:
While long before the contract expired, we believe, we understand, again, I want to be careful to represent to the court that we weren't there.

[01:01:28] Speaker 01:
But our understanding is that other folks were brought in to do that work.

[01:01:32] Speaker 01:
That's why I did not know about the termination of the contract.

[01:01:37] Speaker 01:
I don't have direct knowledge of that.

[01:01:41] Speaker 01:
But those folks, and so that was one of the ULPs that's actually pending now.

[01:01:46] Speaker 01:
We allege that it was a retaliatory termination of the workers who organized.

[01:01:55] Speaker 01:
But even if our understanding is correct, they brought new folks into the bargaining unit, those folks who we don't know would be part of the effects bargaining and would have the opportunity to negotiate for the effects of their termination as well.

[01:02:11] Speaker 01:
And so for my clients, the issue is not moot because

[01:02:22] Speaker 01:
And it's not academic about what notices get posted or sent to people.

[01:02:25] Speaker 01:
It's very real because these are 50 individuals' lives and livelihoods that they have one last shot at bargaining over.

[01:02:33] Speaker 05:
I thought maybe my first question to you was, do they still work for Google?

[01:02:42] Speaker 05:
Do they still work for Google?

[01:02:43] Speaker 05:
And I thought you said you didn't know.

[01:02:45] Speaker 01:
Yeah, thank you for reminding me to finish my thought.

[01:02:49] Speaker 01:
Those folks that I know that I can represent were part of the vote.

[01:02:56] Speaker 01:
I don't believe that any of them worked for Google or Cognizant, either one at this time.

[01:03:02] Speaker 01:
If there were folks who were employed and were in the bargaining unit at the time the contract ended, the union just was not able to stay in touch with those folks in the same way.

[01:03:12] Speaker 01:
And so I can't make a representation about that.

[01:03:15] Speaker 02:
Do you have any more points to wrap up?

[01:03:20] Speaker 01:
Sure.

[01:03:20] Speaker 01:
My last point is, your honor asked my opposing counsel what it would take, what facts it would take to find supervision, a joint employer factor for supervision.

[01:03:33] Speaker 01:
And if I wrote down his answer correctly, he said actually instructing employees on a daily basis.

[01:03:39] Speaker 01:
And that is precisely what happened in this case.

[01:03:41] Speaker 01:
And so there is more than a factual basis to uphold the board's decision on joint employer and remand, and I'm sorry, and enforce that order regardless of what you do with our petition and allow these folks the opportunity to bargain over effects.

[01:03:59] Speaker 02:
When did the union first request bargaining?

[01:04:02] Speaker 02:
Do you have that date?

[01:04:04] Speaker 01:
It would have been right after certification maybe.

[01:04:07] Speaker 02:
Which I thought the board order was in January.

[01:04:13] Speaker 01:
Certification, I apologize, certification is in the record at Joint Appendix 727 and that's the date that I'm going off of.

[01:04:22] Speaker 02:
So they didn't have any obligations until you first requested to bargain?

[01:04:25] Speaker 01:
They did, certainly they had an obligation beginning on that date and for those eight months or so I were here because they didn't

[01:04:32] Speaker 01:
They didn't bargain during that time, but they still have.

[01:04:35] Speaker 02:
They didn't have to bargain until you first requested to bargain.

[01:04:39] Speaker 01:
Right, which would have been.

[01:04:40] Speaker 01:
I apologize.

[01:04:41] Speaker 01:
I don't have the letter, but we did.

[01:04:43] Speaker 01:
We did that immediately after the certification by letter to Council.

[01:04:48] Speaker 02:
Right, that's the board certification order or the regional director?

[01:04:53] Speaker 01:
The certification order comes from the board.

[01:04:57] Speaker 02:
I had January 3, 2024 is that date.

[01:05:00] Speaker 02:
You mentioned a date in May.

[01:05:02] Speaker 01:
May 4, 2023 again at Joint Appendix 727.

[01:05:07] Speaker 05:
That's when the regional director certified the union.

[01:05:13] Speaker 01:
That is the official certification that comes out and so our position would be that their obligation to bargain happened then.

[01:05:21] Speaker 01:
and we demand the workers demanded bargaining shortly thereafter.

[01:05:24] Speaker 02:
It's not even when the board denies review of the regional director's decision?

[01:05:29] Speaker 02:
Correct.

[01:05:36] Speaker 02:
It's your position.

[01:05:37] Speaker 01:
I see what you're saying, that they were essentially appealing through the board's procedure while after certification.

[01:05:44] Speaker 01:
Certification is when the bargaining obligation begins

[01:05:48] Speaker 02:
And if folks want to- You're saying certificate just by the regional director, not even, because the board denied review of the regional director's decision in July of 23.

[01:05:57] Speaker 01:
Sure.

[01:05:58] Speaker 01:
That's right.

[01:05:58] Speaker 01:
Yeah.

[01:05:59] Speaker 01:
Their obligation begins at the time of certification.

[01:06:04] Speaker 01:
By the regional director.

[01:06:05] Speaker 01:
By the regional director.

[01:06:06] Speaker 01:
Yes.

[01:06:07] Speaker 01:
So May, 2023.

[01:06:08] Speaker 05:
And what if a union loses at the board stage?

[01:06:12] Speaker 01:
Certainly they can avail themselves of the appellate procedure, the petition for review, and that's their choice.

[01:06:16] Speaker 01:
They did that here.

[01:06:18] Speaker 01:
And I think if they lost and it came back down, then that would just be something that parties would hash out.

[01:06:25] Speaker 01:
If it came back down as a single employer, then effectively, they wouldn't have reached a first contract ever in a couple of months anyway.

[01:06:33] Speaker 01:
That's extremely unlikely.

[01:06:36] Speaker 01:
But those are the kinds of things that would get hashed out and bargaining and do regularly all the time between parties.

[01:06:45] Speaker 01:
Thank you.

[01:06:54] Speaker 03:
And I just want to make three quick points and answer any questions you may have.

[01:06:59] Speaker 03:
First, on the mootness issue and the proposed remedy that Judge Walker suggested, again, as long as the underlying joint employer ruling is being vacated, that's fine.

[01:07:10] Speaker 03:
And then they can go ahead.

[01:07:12] Speaker 03:
And if they say, as adopted, and we can then challenge that on appeal, that all works out.

[01:07:16] Speaker 02:
I want to pin some things down.

[01:07:18] Speaker 02:
What's that?

[01:07:19] Speaker 02:
I want to pin some things down.

[01:07:21] Speaker 02:
And I would like those representations in writing.

[01:07:24] Speaker 02:
after argument, and that is the contract that was subject to the board's analysis here has in fact expired on February 29, 2024.

[01:07:34] Speaker 02:
Yes.

[01:07:35] Speaker 02:
I think that's what you're... Yes.

[01:07:38] Speaker 02:
So second, there's no implied or unwritten contract between Google and Cognitive

[01:07:47] Speaker 03:
Correct.

[01:07:47] Speaker 03:
Now, I do want to be clear about the contract expiring.

[01:07:50] Speaker 03:
That was the contract between Google and Cognizant for this Austin unit to be working.

[01:07:56] Speaker 03:
So yes, that contract expired.

[01:07:58] Speaker 03:
And there's no implied contract as to that.

[01:08:00] Speaker 03:
I do believe that Cognizant workers elsewhere may be doing some of this work, but it's not this Austin unit.

[01:08:07] Speaker 02:
So that's an expression.

[01:08:08] Speaker 02:
OK, so then there may be a contract between Google and Cognizant

[01:08:14] Speaker 02:
Outside Austin.

[01:08:16] Speaker 03:
Yes, I believe outside of the United States, actually.

[01:08:19] Speaker 02:
Okay.

[01:08:21] Speaker 02:
And are the terms of that contract the same?

[01:08:24] Speaker 03:
I do not believe so.