Cognizant Technology Solutions U.S. Corp. and Google, LLC, as joint employers

373 NLRB No. 9 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Cognizant Technology Solutions U.S. Corporation and Google, LLC, Joint Employers and Alphabet Workers Union–Communications Workers of America, Local 9009. Case 16–CA–326027 January 3, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX This is a refusal-to-bargain case in which the Respond- ents are contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on September 19, 2023, by the Alphabet Workers Union—Communications Workers of America, Local 9009 (the Union), the General Counsel issued a complaint on September 25, 2023, alleging that Respondent Cognizant Technology Solutions U.S. Corpo- ration (Respondent Cognizant) and Respondent Google, LLC (Respondent Google) have violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union following the Union’s certification in Case 16–RC–305751. (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondents each filed an answer admitting in part and denying in part the allegations in the complaint and assert- ing affirmative defenses. On October 19 and 23, 2023, the General Counsel and the Union, respectively, filed Motions for Summary Judg- ment. On October 24, 2023, the Board issued an Order Transferring the Proceeding to the Board and a Notice to 1 In its answer, Respondent Google largely admits the complaint al- legations, including the allegation that it is refusing to recognize and bar- gain with the Union. Both Google and Cognizant deny complaint par. 7(a), which sets forth the appropriate unit, and par. 7(c), which asserts that the Union is the exclusive collective-bargaining representative. Re- spondent Cognizant denies par. 9, which alleges that the Respondents’ refusal to bargain violates Sect. 8(a)(5) and (1); and par. 10, which al- leges that the Respondents’ unfair labor practices affect commerce. Both Respondents deny par. 2(c) which alleges that the Respondents have co- determined essential terms and conditions of employment. In their re- sponses to the Notice to Show Cause, the Respondents merely reassert the arguments, raised and rejected in the underlying representation case, that Cognizant and Google are not joint employers. In fact, Respondent Google asserts that it intends to test the unit’s certification. Accordingly, the Respondents’ denials do not raise any litigable issue in this proceed- ing. Respondent Cognizant also denies that it has been a Texas corporation with an office and place of business located at 717 E. Parmer Lane, Aus- tin, Texas 78753, as alleged is par. 2(a) of the complaint. Nevertheless, this allegation was established by Cognizant in the underlying represen- tation proceeding. It also denies pars. 8(a) and (c) of the complaint, which allege that the Union, by email, requested that the Respondents recognize and bargain with it and that the Respondents, by email, re- fused. The General Counsel, however, attached the relevant emails to Show Cause why the motions should not be granted. On November 6 and 7, 2023, Respondent Cognizant and Re- spondent Google, respectively, filed responses to the No- tice to Show Cause. The Union filed a reply on November 13, 2023. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment Respondent Cognizant denies but Respondent Goggle admits its refusal to bargain with the Union. However, both Respondents contest the validity of the Union’s cer- tification of representative based on their contentions, raised and rejected in the underlying proceeding, that Cog- nizant and Google are not joint employers of the employ- ees certified in underlying representation proceeding.1 All representation issues raised by the Respondents were or could have been litigated in the prior representa- tion proceeding. The Respondents do not offer to adduce at a hearing any newly discovered and previously unavail- able evidence, nor have they established any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We there- fore find that the Respondents have not raised any repre- sentation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motions for Summary Judgment as to the Respond- ents’ failure and refusal to recognize and bargain with the Union.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, Respondent Cognizant Technol- ogy Solutions U.S. Corporation has been a Texas her Motion for Summary Judgment; Cognizant does not dispute the au- thenticity of those documents. Thus, these denials fail to raise a disputed issue for hearing. See Biewer Wisconsin Sawmill, Inc., 306 NLRB 732, 732 (1992). Google’s answer asserts several affirmative defenses. None of these defenses—save the defense pertaining to the General Counsel’s request for a compensatory remedy requiring the Respondent to make its em- ployees whole for the lost opportunity to bargain at the time and in the manner contemplated by the Act—are supplemented with any additional argument or support. Therefore, they are insufficient to warrant denial of the Motions for Summary Judgment. See, e.g., Sysco Central Cali- fornia, Inc., 371 NLRB No. 95, slip op. at 1 fn. 1 (2022); Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino, 366 NLRB No. 58, slip op. at 1 fn. 1 (2018). Because the issue of compen- satory relief will be severed for future consideration, Google’s arguments on that matter are no barrier to granting summary judgment. See Long- mont United Hospital v. NLRB, 70 F.4th 573 (D.C. Cir. 2023). Finally, there is no merit to the Google’s claim that Sec. 10(b) bars one or more of the allegations in the complaint. Indeed, the charge was filed on September 19, 2023, and the complaint alleges that the Respond- ents’ refusal to bargain began on June 29, 2023. 2 We construe Respondent Google’s request that the charge be dis- missed as requesting dismissal of the complaint. Pursuant to the forego- ing, we deny this request. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 corporation with an office and place of business located at 717 E. Parmer Lane, Austin, Texas 78753 (the E. Parmer Lane facility) where it has been engaged in the business of providing consulting and technology services.3 Annually, Respondent Cognizant, in conducting its business operations described above, provides services valued in excess of $50,000 to customers directly outside the State of Texas.4 We find that Respondent Cognizant is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times, Respondent Google, LLC, has been a Delaware corporation with an office and place of business located at 7700 W. Parmer Lane, Austin, Texas 78729, where it has been engaged in the business of providing internet-related services and products. Annually, in conducting its business operations de- scribed above, Respondent Google provides services val- ued in excess of $50,000 to points directly outside the State of Texas.5 We find that Respondent Google is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times, Respondents Cognizant and Google have codetermined the essential terms and condi- tions of employment of employees employed at the E. Par- mer Lane facility and have been joint employers. We find that Alphabet Workers Union—Communica- tions Workers of America, Local 9009, is a labor organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification On March 3, 2023, the Regional Director issued a De- cision and Direction of Election in which he found Re- spondent Cognizant and Respondent Google to be joint employers of the petitioned-for employees. Thereafter, following a representation election conducted by mail be- tween March 22 and April 19, 2023, the Regional Director issued a Certification of Representative on May 4, 2023, certifying the Union as the exclusive collective-bargaining representative of the employees in the following unit: INCLUDED: All full-time and regular part-time Senior Process Executive-Data/Music Generalist (SPEs) and Project/Process Specialists/Subject Matter Experts (SMEs) employees employed by the Employers in YouTube Music Content Operations who are employed to work from the Employer’s (Cognizant Technology Solutions U.S. Corporation) facility at 717 E. Parmer Lane in Austin, Texas. 3 This is the only facility involved in this case. 4 Although the complaint fails to state that Respondent Cognizant provides these services “annually,” Cognizant stipulated that it is en- gaged in commerce within the meaning of the Act in the underlying rep- resentation proceeding EXCLUDED: Team Leads, temporary employees, sea- sonal employees, managerial employees, professional employees, confidential employees, guards and supervi- sors as defined in the Act. On July 19, 2023, the Board denied the Respondents’ requests for review of the Regional Director’s Decision and Direction of Election and subsequent Certification of Representative. The Union continues to be the exclusive collective-bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain By email dated June 15 and July 26, 2023, the Union requested that the Respondents bargain with the Union as the exclusive collective-bargaining representative of the unit. By emails dated June 29, 2023, and continuing to date, the Respondents have failed and refused to recognize and bargain with the Union as the exclusive collective- bargaining representative of the unit. We find that the Respondents’ conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since June 29, 2023, to recog- nize and bargain with the Union as the exclusive collec- tive-bargaining representative of the employees in the ap- propriate unit, the Respondents have engaged in unfair la- bor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondents have violated Sec- tion 8(a)(5) and (1) of the Act, we shall order them to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning on the date the Respondents begin to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). In addition, the General Counsel requests that we adopt a compensatory remedy requiring the Respondents to make their employees whole for the lost opportunity to bargain at the time and in the manner contemplated by the 5 Although the complaint fails to state that Respondent Google pro- vides these services “annually,” Google admitted that it does so in its answer to the complaint. COGNIZANT TECHNOLOGY SOLUTIONS U.S. CORP. 3 Act. To do so would require overruling Ex-Cell-O Corp., 185 NLRB 107 (1970), and outlining a methodological framework for calculating such a remedy. The Board has decided to sever this issue and retain it for further consid- eration to expedite the issuance of this decision regarding the remaining issues in this case. See Longmont United Hospital, 371 NLRB No. 162, slip op. at 2 (2022), enfd. 70 F.4th 573 (D.C. Cir. 2023). The Board will issue a sup- plemental decision regarding a make-whole remedy at a later date. See Kentucky River Medical Center, 355 NLRB 643, 647 fn. 13 (2010); Kentucky River Medical Center, 356 NLRB 6 (2010).6 ORDER The National Labor Relations Board orders that Re- spondent Cognizant Technology Solutions U.S. Corpora- tion and Respondent Google, LLC, Austin, Texas, and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with the Alphabet Workers Union—Communications Workers of America, Local 9009 (the Union) as the exclusive col- lective-bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: INCLUDED: All full-time and regular part-time Senior Process Executive-Data/Music Generalist (SPEs) and Project/Process Specialists/Subject Matter Experts (SMEs) employees employed by the Employers in YouTube Music Content Operations who are employed to work from the Employer’s (Cognizant Technology Solutions U.S. Corporation) facility at 717 E. Parmer Lane in Austin, Texas. EXCLUDED: Team Leads, temporary employees, sea- sonal employees, managerial employees, professional 6 Having ordered the customary remedies for test-of-certification cases and severed the Ex-Cell-O Corp. matter for future consideration, we decline to order, in this case, the additional remedies sought by the Union in its Motion for Summary Judgment. 7 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tices must be posted within 14 days after the facility reopens and a sub- stantial complement of employees has returned to work, and the notices may not be posted until a substantial complement of employees has employees, confidential employees, guards and supervi- sors as defined in the Act. (b) Within 14 days after service by the Region, post at the E. Parmer Lane facility copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms pro- vided by the Regional Director for Region 16, after being signed by the Respondents’ authorized representatives, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondents customarily communi- cate with their employees by such means. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. If Respondent Cognizant has gone out of busi- ness or closed the facility involved in these proceedings, the Respondents shall duplicate and mail, at their own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondents at the E. Parmer Lane facility at any time since June 29, 2023. (c) Within 21 days after service by the Region, file with the Regional Director for Region 16 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. Dated, Washington, D.C. January 3, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ David M. Prouty, Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD returned to work. If, while closed or not staffed by a substantial comple- ment of employees due to the pandemic, the Respondents are communi- cating with their employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Re- gion. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT fail and refuse to recognize and bargain with the Alphabet Workers Union—Communications Workers of America, Local 9009 (the Union) as the exclu- sive collective-bargaining representative of our employ- ees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and con- ditions of employment for our employees in the following appropriate bargaining unit: INCLUDED: All full-time and regular part-time Senior Process Executive-Data/Music Generalist (SPEs) and Project/Process Specialists/Subject Matter Experts (SMEs) employees employed by the Employers in YouTube Music Content Operations who are employed to work from the Employer’s (Cognizant Technology Solutions U.S. Corporation) facility at 717 E. Parmer Lane in Austin, Texas. EXCLUDED: Team Leads, temporary employees, sea- sonal employees, managerial employees, professional employees, confidential employees, guards and supervi- sors as defined in the Act. COGNIZANT TECHNOLOGY SOLUTIONS U.S. GOOGLE, LLC The Board’s decision can be found at www.nlrb.gov/case/16-CA-326027 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.