Activision Blizzard is asking the National Labor Relations Board to stop a union vote at its Diablo quality assurance (QA) department in Albany, NY because, it claims, game development is unlike any other form of labor, making years of NLRB precedent irrelevant. Following a successful union organizing drive, the company has requested that the votes be impounded until a review is completed.
The company’s Request for Review revolves around a few key points: first, that existing legal precedent fails to account for the uniquely collaborative nature of game development; second, that a QA workers union would lead to a fractured unit, caused by the shared interests of QA workers and other developers; and third, that the spectators engaged in “Impermissible Digital Picketing” by having profile pictures with the phrase “ABK Stop Union Busting” during a virtual hearing.
The company hopes to expand the voting body to the more than 100 employees at its Albany office, shifting the potential union from a QA workers union to a more mixed unit—forcing a second election in the process, which the company could have another, potentially better, shot at winning. Earlier this year, the Amazon Labor Union claims Amazon forced its workers attempting to unionize in Albany to hold a 1,000-voter election by inflating its voter list to "pack the unit." The vote failed.
Activision Blizzard's basic argument relies on the idea that video game production is so fundamentally different from other forms of production with which the National Labor Relations Board is familiar that previous precedent should be disregarded. Activision Blizzard’s lawyers point to the collaborative nature of video game development, in which employees and contractors across departments work together towards the common end of producing the best game possible, even including screenshots of diverse Diablo 4 environments in their filing. Activision Blizzard makes this argument in spite of the fact that the collaborative mode of production which they describe clearly resembles that of the mostly unionized American entertainment industry.
Activision Blizzard goes on to argue that employees within the QA department do not share common interests, because some of them work on different games than others. The Albany offices are home to the Diablo QA team, who are divided between Diablo 2 Remastered and Diablo 4. Furthermore, QA employees are further divided into specific teams, directly working with other departments within the company. The company argued that this division prevents QA workers from sharing common interests, as they work with different people and the duties of their roles are fluid. Activision Blizzard cites a specific case in which a QA member was temporarily re-assigned to a UI design role, without any change in his pay, as evidence for the uniquely collaborative nature of the games industry.
Instead, Activision Blizzard claims that QA workers do share common interest with members of the development team in other departments, citing their mutual drive to achieve the same end and the similar tools they utilize in their day-to-day job. The company’s claim pulls on established legal precedents in which QA workers on factory floors were prevented from forming their own union because their work was closely integrated with that of other factory workers.
Finally, the Request for Review ends with Activision Blizzard, in a bizarre argument for pausing the union election, taking issue with the profile pictures of spectators in a virtual NLRB hearing. It claims that “ABK Stop Union Busting” profile pictures are an act of digital picketing that "intimidated" the company's witnesses, and which should not have been allowed at the hearing. Activision Blizzard addressed this in the hearing itself, but their complaints were dismissed outright by a labor board official.
"Sadly, it's no surprise that a company that has repeatedly tried to silence its employees, including by hiding reports of sexual violence, would want to muzzle workers' voices once again by trying to stop them from voting in a union election. Workers have concluded that they need to protect themselves from this abusive employer by joining together into a strong union," the Communication Workers of America said in an emailed statement to Waypoint.
"Instead of staying neutral, Activision's management continues to present the same failing arguments in a desperate attempt to interfere with workers' legal right to make their own decisions about forming a union and negotiating a collective bargaining agreement," they added "It’s clear the company's executives feel threatened by workers organizing in New York, Wisconsin and across the country. We are confident in the NLRB’s response to these frivolous requests, and we will continue to push for Activision Blizzard employees’ right to organize without delay.”
Activision Blizzard’s approach to this case is nothing extraordinary. It dovetails with the strategy laid out in a blog post on the website of law firm Duane Morris LLP, which explicitly lays out the danger of so-called "micro-units" and how to stop them. The article encourages “blurring of the distinctions between the micro-units and the broader group as a whole,” says employers should “focus on the interdependence and interlocking nature of the manufacturing of the product,” and even uses the exact same argument regarding quality control workers in factories: “quality control employees who spend most of their time interacting with the production employees on the floor and who participate in problem-solving have a better chance of being included.”
This is all to say that Activision Blizzard’s strategy is not particularly clever, nor is it unique, but that doesn’t really matter. If the NLRB throws out this request after a short deliberation period, it's still a success for Activision Blizzard, because the delay is the point. Exhausting the resources of a nascent union is easy for a company at the scale of Activision Blizzard, as is quickly reorganizing itself to better prevent future organizing drives if unionization efforts at the Albany offices go on to fail.