Labor & Employment Law Daily Wrap Up, PROCEDURE—D.C. Cir.: Court vacates order finding that Google failed to bargain with Alphabet Workers, (Apr 22, 2025)

By Jason Albright, J.D.

The NLRB had determined that Google was a joint employer of Cognizant Technology Solutions employees who worked on Google’s YouTube Music platform.

The D.C. Circuit has vacated an NLRB order finding that Google and Cognizant Technology Solutions unlawfully refused to bargain with the Alphabet Workers Union, shortly before the contract under which bargaining unit employees provided services to Google expired, rendering moot the companies’ petitions and the Board’s cross-applications for enforcement of the order. The appeals court further dismissed as jurisdictionally barred a part of the union’s petition in the case seeking review of the NLRB’s decision to sever the issue of a make-whole remedy for impacted employees, and it dismissed as moot parts of the union’s petition seeking prospective remedies (Alphabet Workers Union v. NLRB, No. 24-1003 (D.C. Cir. Apr. 22, 2025)).

Google and Cognizant. Cognizant Technology Solutions U.S. Corporation is a professional-services company that provides digital and consulting services, and Google’s YouTube Music Content Operations department (MCO) is responsible for YouTube Music data quality. On July 1, 2019, according to the court, Google and Cognizant entered into a contract for Cognizant to provide MCO-related services to Google through a team based in Austin, Texas. A subset of that team is the bargaining unit at issue in the case.

Employers’ project agreement and expiration. Google and Cognizant extended their contract multiple times before it expired in February 2024. But the contract’s expiration brought to a close the MCO project on which the Austin-based Cognizant employees had been working. Under Cognizant’s employment policies, after such a project ends, employees have five weeks to apply for another project before being separated from the company.

At oral argument, in turn, counsel for Google and Cognizant stated that he believed none of the bargaining unit employees remains at Cognizant. Under a different contract, Cognizant now provides services to Google abroad, including work formerly done by the Austin-based MCO team.

Representation petition. While the contract was still in effect, however, in October 2022, the union petitioned the NLRB, seeking to represent the bargaining unit and naming Google and Cognizant as joint employers under 29 C.F.R. § 103.40(a) (2020).

Joint-employer finding and election. After hearings, a Regional Director found that Google and Cognizant were joint employers in a Decision and Direction of Election (DDE) issued in March 2023. Unit employees then voted unanimously to be represented by the union in a Board-directed election in April 2023, and the Regional Director certified the union in May 2023.

Google and Cognizant then requested Board review of the DDE, and in July 2023, the Board denied their requests because it agreed with the Regional Director that Google exercised substantial direct and immediate control of employee supervision, benefits, and hours.

Refusal-to-bargain charge. Then, to contest the union’s certification, Google and Cognizant refused to bargain. As a result, following a charge filed by the union, the Board’s General Counsel issued a complaint in September 2023 alleging that Google and Cognizant’s violated Sections 8(a)(1) and (5).

Proceedings before Board. In the proceedings before the Board, the General Counsel sought several remedies, including an order requiring Google and Cognizant to bargain in good faith, an extension of the certification year, and a make-whole remedy for employees. The union joined those requests for relief but also asked the Board to require a bargaining schedule, notice reading, posting of employee rights, mandatory training, and compensatory relief for the union itself.

Board’s findings. In January 2024, the Board issued a decision and order (D&O) concluding that Google and Cognizant had violated the Act by refusing to bargain and ordering them to bargain with the union and post an employee rights notice. The NLRB also construed the union certification period to begin on the date that Google and Cognizant start to bargain in good faith. Because ordering a make-whole remedy for employees would require overruling Ex-Cell-O Corp., 185 N.L.R.B. 107 (1970), and creating a methodology for calculating such a remedy, the Board severed that issue and retained it for further consideration.

Petitions for review and cross-application for enforcement. Days after the Board issued its order, all parties petitioned for review. Both Google and Cognizant challenged the joint-employer determination, the union contested the scope of the remedy, and the Board cross-applied for enforcement of its order.

Moot controversy. The D.C. Circuit first found that the controversy was moot and that no exception to the mootness doctrine applied. The expiration of the Google-Cognizant contract, the appeals court said, “means that there is no longer any relationship between the two companies that could support the joint-employer finding upon which the D&O is premised.” Because the Google-Cognizant contract is over, “there can be no ongoing relationship between AWU and the two entities qua joint employers of these bargaining unit employees.”

Nor did an exception to the mootness doctrine apply. The appeals court found “no reason to expect to see this joint-employer relationship again, especially because Google and Cognizant can avoid problems by drafting future contracts to steer clear of the joint-employer line.” And as for the possibility of voluntary cessation, the termination of a contract “that expired of its own terms cannot be viewed as cessation of conduct,” even if the contract previously had “brief extensions.”

Order vacated. Weighing the equities, the D.C. Circuit found in favor of vacatur of the order. The court again observed that the Google-Cognizant contract expired on its own terms, and “neither Google nor Cognizant raised mootness—indeed, all parties opposed mootness at oral argument.” And finally, “vacatur will ‘open[] the door to reconsideration of the merits of the legal issues in this case’—namely, the correctness of the joint-employer determination—thereby ‘serv[ing] the public interest.’”

No additional relief for union. Turning finally to the union’s separate petition for review of the NLRB’s remedies in the case, the appeals court found that it lacked jurisdiction to address the union’s argument that the Board erred by severing for later resolution the question of monetary relief for the bargaining unit employees. As to the union’s argument that the Board also erred by denying its requests for additional non-monetary and monetary relief without explanation, the D.C. Circuit found the union’s “requests for prospective relief beyond what the Board granted are moot because the contract is over and the Union is incorrect that the Board abused its discretion by not granting retrospective monetary relief to the Union itself.”

The case is No. 24-1003.

Judge: Henderson, K.

Attorneys: Karla M. Campbell (Stranch, Jennings & Garvey) for Alphabet Workers Union-Communication Workers of America, Local 9009. Ruth E. Burdick for the NLRB. Cameron W. Fox (Paul & Hastings) for Cognizant Technology Solutions U.S. Corp. Matthew Silveira (Jones Day) for Google LLC.

Companies: Alphabet Workers Union-Communication Workers of America, Local 9009; Cognizant Technology Solutions U.S. Corp.; Google LLC

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