Kickstarter is working with a Philadelphia law firm that offers expertise in labor relations and "maintaining a union-free workplace," in the midst of a historic union campaign at the Brooklyn-based crowd-funding company.
The company confirmed to Motherboard that it first retained the services of the firm Duane Morris in 2018 before it knew of any organizing activity at the company. Kickstarter would be the first major tech firm to successfully unionize in the United States if the union wins when election results are counted on February 18, which would send a message to disgruntled tech workers across the country.
On its website, Duane Morris, one of the highest-grossing law firms in the country, boasts that its attorneys have “extensive experience” in management and labor relations, including “maintaining a union-free workplace” and “handling unfair labor practice charges at the NLRB.” After employees at WHYY, the National Public Radio affiliate in Philadelphia, announced their intentions to unionize last year, the company retained Duane Morris and declined to voluntarily recognize its union. Lawyers on its site boast experience and accomplishments that include, "counseling and training designed to avoid litigation, unionization and employee attrition," winning elections to keep businesses "union free," and "strategic union-free planning," across the food and trucking industries.
According to an anonymous source with knowledge of the meetings and resumes on Duane Morris' website, Kickstarter management met with attorneys with expertise specifically in these areas. Motherboard granted the source anonymity because they feared retaliation. When asked about its relationship with Duane Morris, Kickstarter confirmed that it had retained the firm’s services, but said it could not go into much detail due to the “media blackout” agreement struck between the union and management in December.
"We first hired Duane Morris in 2018 to help with things like HR policies and anti-harassment training, well before we knew of any union organizing effort at Kickstarter," a Kickstarter spokesperson said. "When we became aware of that effort last spring, we asked the firm if they had an expert on unions, because we needed to quickly get up to speed on that. So clearly 'union avoidance' has never been our goal in hiring or working with Duane Morris. The firm has helped us make sure that we have been in compliance with labor law throughout the organizing process, and has advised us on best practices and what to expect during a union election."
"Throughout this process it has been our top priority to give our staff the room to make this decision for themselves," the spokesperson added. "We provided resources and space for staff discussions without leadership participation, we agreed to a restrictive neutrality agreement, and we moved quickly to agree on a bargaining unit ahead of the vote. This was a free and fair election, and we will respect our staff’s decision."
While we don't know how Duane Morris has specifically advised Kickstarter, labor experts told Motherboard that companies seeking legal counsel for union negotiations have a choice when it comes to whether to hire lawyers that specialize in union avoidance—more derogatorily known as “union-busting”—which is the range of activities involved in helping employers avoid or defeat union drives and elections.
“Not all management firms engage in the same kind of flagrant union busting practice that some large firms have developed,” Celine McNicholas, labor counsel at the Economic Policy Institute (EPI), a non-partisan economic policy think tank in Washington, DC, told Motherboard. “The good news is that the firms that do this work most aggressively tend to advertise and tend to be the firms you see attacking workers' rights over and over again before the NLRB and in federal court.”
“Like with all matters, if an employer wants to work with its workers and respect their rights, it can easily do so. It is not impossible to identify legal counsel to assist in that effort,” McNicholas, the labor counsel at EPI, continued.
A spokesperson for Duane Morris would not go into detail when asked whether it had advised Kickstarter specifically on union avoidance. “Duane Morris helps its clients achieve their objectives in a lawful and appropriate manner consistent with its professional responsibilities," the spokesperson said. "Kickstarter is a public benefit corporation that was open to signing—and did sign—a neutrality agreement with the Union, and Duane Morris assisted it in doing so. Providing legal support regarding an employer’s lawful position on unions is responsible lawyering."
The union Kickstarter United and the AFL-CIO, the federation that includes the Office and Professional Employees International Union, which represents Kickstarter employees, did not respond to Motherboard’s request for comment.
In recent months, Kickstarter has vehemently and repeatedly denied that it has engaged in any union-busting activity.
Since its founding in 2009, the tech company has tried to distinguish itself as a progressive alternative to Silicon Valley firms. After becoming a “public benefit corporation” in 2015, management wrote in a letter to backers, “Benefit Corporations are for-profit companies that are obligated to consider the impact of their decisions on society, not only shareholders.... Kickstarter is excited to join a growing list of forward-thinking organizations — like Patagonia and This American Life — that have taken the big step to become a Benefit Corporation.”
“Like with all matters, if an employer wants to work with its workers and respect their rights, it can easily do so. It is not impossible to identify legal counsel to assist in that effort."
In September, the company fired two employees on the union’s organizing committee within eight days, and informed a third union organizer that he would no longer be needed in his role. Both of the fired workers filed unfair labor practice complaints with the National Labor Review Board (NLRB), alleging the company of “discharging employees” because “they joined or supported a labor organization and in order to discourage union activities.”
Following outcry from prominent Kickstarter creators about the firings, Kickstarter CEO Aziz Hasan insisted in a letter to creators that the firings were strictly related to job performance, not union organizing.
“It’s important for you to know, and to hear straight from me, that we haven’t fired anyone for union organizing,” wrote Hassan. “We respect our staff’s right to decide for themselves if they want a union at Kickstarter, and we are giving them the space they need to make that decision.”
In that same letter, Hasan also said that “The union framework is inherently adversarial.”
“That dynamic doesn’t reflect who we are as a company, how we interact, how we make decisions, or where we need to go," Hasan wrote. "We believe that in many ways it would set us back.”
Days later, Kickstarter denied requests from the union to be voluntarily recognized.
Kickstarter’s work with Duane Morris coincides with a New York Times report that Google hired an anti-union consulting firm, presumably to advise it on mounting labor unrest at the company. According to a recent report by EPI, U.S. companies spend roughly $340 million annually on “union avoidance” consultants and law firms, which advise companies on how to win union campaigns. That same report found that employers are charged with violating labor laws in more than 40 percent of union elections.
“Unfortunately, simply being an organization with a ‘progressive’ mission does not necessarily mean that the organization will embrace progressive values when it comes to workers' rights,” McNicholas, the labor attorney at EPI, said. “And, unfortunately, it is not difficult to find legal counsel that will work hard to exploit massive loopholes in the existing law to help an employer avoid a union.”
The decision followed a heated controversy between workers and management: the far right-wing news site Breitbart had accused Kickstarter of violating its own terms of service by inciting violence with a comic book project on the platform called “Always Punch Nazis.” Slate reported that management initially wanted to take down the project, but a group of Kickstarter employees argued that doing so "would give in to people trying to have a 'both sides' debate about Nazis." After extensive internal dialogue, management decided to leave the project up, but soon after, employees began talking about unionizing.
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If they unionize, Kickstarter employees would join the first white-collar union at a major tech company in the United States, leading engineers in the footsteps of many blue-collar tech workers. Contractors, gig workers, and other precarious tech workforces have led the growing union movement in tech in recent years. In 2019, 80 Google contractors in Pittsburgh and 2,300 Google cafeteria workers in Silicon Valley successfully unionized. In early February, 15 Instacart gig workers in the Chicago suburbs won the grocery delivery app’s first union in the United States, following a fierce anti-union campaign run by local management.
Kickstarter employees cast their votes in mid-January. A vote count is scheduled for February 18.
Correction: This article initially said that Kickstarter management "refused" to take down a comic book project on the platform called “Always Punch Nazis.” After extensive internal dialogue, management decided to leave the project up. Motherboard regrets the error.