By Xinying Valerian, Esq. & Eileen Torrez
When a union is formed at the workplace, who gets a say in whether the union is recognized? A recent NLRB case against a video game company brings to light one common way corporations try to stop union formation.
The National Labor Relations Board (NLRB) was founded in 1935 as the federal agency enforcing the National Labor Relations Act (NLRA). Under the NLRA, most private sector employees have the freedom to engage in collective bargaining, demand better workplace conditions or wages, form a union, and–under most conditions–strike. The Act also protects the rights of workers to choose whether or not to join a union at their workplace, and requires employers to meet in good faith to bargain with union representatives.
When employers (often large corporations with offices across the United States) violate these protections–for example, by refusing to meet with union leaders, or firing union members as a form of retaliation –aggrieved employees may file a charge with the NLRB for further investigation. The NLRB may, in turn, issue a complaint (and represent the charging parties in a lawsuit) against the company. Lawsuits have been brought against many high-profile companies such as Walmart, Verizon, and Whole Foods for a variety of unlawful labor practices. Charges or cases may also be brought against unions themselves, for issues ranging from unfair collection of union dues to bad-faith bargaining.
One recent case against gaming company Activision Blizzard has brought media attention. Workers at Raven Software, a gaming software company owned by Activision, sought to form a union after 12 of their cohort were fired. They named themselves the Game Workers Alliance (GWA) and announced their intentions to unionize–only to be met with sidestepping by company management.
In one pointed move, Raven’s leadership completely dismantled the Quality Assurance (QA) department. They distributed QA roles into several other departments and began referring to them as “embedded testers”. As defense counsel later argued in an NLRB hearing, QA employees now shared “an overwhelming community of interest” with other employees at the company, making their initial union unfairly exclusive of other workers. This argument relies on Trump-era NLRB precedent that cracks down on ‘micro-unions’, essentially placing the burden on union organizers to prove that the subset of workers included in a union election is appropriate, given differences in those workers’ responsibilities and roles. By comparison, under Obama’s NLRB board, the burden of proof lay on employers to show similarities between the worker groups in question. In this instance, the company relied on the logic that if the QA workers were not technically members of their own department, but rather just individual parts of other teams, then all the members of every team should be able to vote on whether the union should exist. Labor leaders argue that the move was calculated to diffuse support for the union and bet that once more workers were included, a company-wide vote might fall short. The case is still open at the NLRB.
In their complaint, union leaders also accuse Activision of threatening and surveilling employees, barring discussion of wages, hours, and working conditions, spreading misinformation about unionization on company Slack channels, and holding mandatory anti-union meetings. All of these illegal tactics and more can be used by corporations to dissuade employees from joining, starting, or supporting a new union. If you have observed these or other union-busting tactics at your workplace, consider contacting your regional NLRB office about filing a charge. In addition, violations of the NLRA may be telltale signs of other unlawful working conditions and mistreatment that could be actionable by private counsel.
On April 22, 2022, in a win for the worker organizing campaign, the NLRB ruled that the Raven Software quality assurance workers are eligible to participate in a union election.
Corporations often resort to questionable tactics to dissuade employees from joining or supporting a union or engaging in other protected activities. If you have observed union-busting tactics at your workplace, consider contacting your regional NLRB office about filing a charge. In addition, violations of the NLRA may be telltale signs of other unlawful working conditions and mistreatment that could be actionable by private counsel.
If you have any questions about employment rights and unions, contact our experienced California lawyers who can advise you of your options. Call us at 888-686-1918 to speak with one of our employment attorneys today.