Labor Board Finds Merit That Kickstarter Illegally Fired Union Organizer

More than six months after Kickstarter employees made history—becoming the first major tech company in the United States to unionize—a federal agency has found merit to charges that the crowd-funding platform unlawfully fired an employee who played an instrumental role in the union drive, Motherboard has learned. This is an important step in an ongoing proceeding, but does not mark the closure of the case.

In September 2019, Kickstarter fired two workers active in the union drive over alleged job performance issues who then filed charges with the National Labor Review Board (NLRB) accusing the company of unlawfully retaliating them for organizing. At the time, Kickstarter CEO Aziz Hasan wrote a letter to Kickstarter creators denying that the firings were related to union organizing, but said that a "union framework is inherently adversarial."

The NLRB findings supporting the allegation that Kickstarter illegally fired one of those former employees, Taylor Moore, for his participation in the union drive, could serve as a powerful deterrent to other tech companies that consider pushing back against employee efforts to unionize. Two prior charges against Kickstarter have been withdrawn by Kickstarter's union, and a third charge is still pending, according to Kickstarter and Moore's attorney.

"This should be a signal to workers that you can win, even as weakened and corrupted as the NLRB is by Trump's influence. You can still win. This is still a fight worth having," Moore told Motherboard. "Having witnessed it all firsthand, the evidence can't be clearer. I was coming off my best three quarters when I was fired and they never gave me or any one else a sufficient reason for termination."

(Under the 1935 National Labor Relations Act (NLRA), it is illegal for employers to discriminate or retaliate against workers for organizing coworkers or attempting to form unions.)

The process of filing an unfair labor practice charge against a company for violating the National Labor Relations Act is often a drawn out process that can take months or years to resolve, and is stacked against workers under the Trump administration. More than half of all charges filed with the NLRB each year are dismissed or withdrawn during the initial investigation process. And in cases where the NLRB finds "merit," to the charges, 90 percent of parties settle. For a small portion of those cases where a settlement is not reached, the NLRB issues a formal public complaint and it goes before an administrative judge.

With regards to the NLRB's finding of merit on Moore's case, Kate Bernyk, the director of communications at Kickstarter said "the NLRB has not issued a complaint and there have been no formal findings of any violations of the National Labor Relations Act. If the NLRB does issue a complaint and Mr. Moore's claims are heard by an administrative law judge, we're confident that the NLRB will find our decision to part ways with this employee was for legitimate reasons."

"We hope to be able to resolve this matter soon, and we continue to remain focused on working with our staff’s union to negotiate a fair and productive collective bargaining agreement," she continued.

Bernyk said that two other claims filed by the union representing Kickstarter workers were dismissed, and that it expected a third pending charge to be dismissed soon.

A former NLRB attorney told Motherboard that the determination of whether a case has merit, or substantial evidence in favor of it, is one of the most important moments in a case. And while NLRB attorneys can reverse their decision about whether a case has merit, it is very rare for them to do so.

The backdrop of these events at Kickstarter is that the tech industry, from Silicon Valley to New York City, is facing an unprecedented wave of internal dissent and worker activism. Since Kickstarter employees voted to unionize in February, the start-up Glitch has followed in their footsteps, and ongoing internal dissent at Amazon and Google has led many to speculate that workers could be gearing for a full-fledged union drive at some of the world's most powerful companies. As the first tech company to negotiate a contract across its white collar workforce, Kickstarter workers are currently positioned to set an industry-wide precedent for wages, benefits, and protocols for handling ethical concerns.

Like other tech companies facing internal dissent, Kickstarter workers' foray into union organizing came with strong pushback from Kickstarter, which has for years sought to portray itself as a socially responsible alternative to its Silicon Valley peers. During the union drive, management held a series of "captive audience" meetings where they explained why they believed a union would be disruptive and slow down the company, according to a report in Slate. Last fall, Kickstarter also denied requests from the union for voluntary recognition. And less than a week prior to the Kickstarter union election, Motherboard revealed the company had hired Duane Morris, a law firm specializing in labor management relations and "maintaining a union free workplace."

With regards to the firing of Taylor Moore and another union organizer, CEO Hasan has said to the company's creators, “It’s important for you to know, and to hear straight from me, that we haven’t fired anyone for union organizing…We understood how these firings could be perceived, but it would be unfair to not hold these two employees to the same standards as the rest of our staff."

The first rumblings of dissent at Kickstarter began in 2018 when employees clashed with management about a fundraiser for a comic book called "Always Punch Nazis." When the right-wing news outlet Breitbart accused Kickstarter of violating its own terms of services by hosting a fundraiser for the book, management took the fundraiser down. But workers felt the company had given in to far-right trolls, and protested. Eventually, Kickstarter put the project back online, but at that point workers were already discussing the possibility of a union that could establish clearer mechanisms for working through ethical disagreements between workers and management.

Over the past year, activists have been fired at other tech companies, too. In November 2019, Google, which hired an anti-union consulting firm presumably to advise on internal dissent, fired four Google employees, known as the "Thanksgiving Four," who were active in organizing at the company. These workers also filed unfair labor practice complaints with the NLRB alleging that Google had retaliated against them for "engaging in protected labor activity." (During the pandemic, Amazon has also fired two corporate employees and several warehouse workers who spoke out against the company.)

The Google and Kickstarter unfair labor practice charges were shunted from the regional NLRB offices to NLRB headquarters in Washington DC for final decisions under the watch of Trump-appointed General Counsel Robb, who has a reputation for micromanaging the outcomes of cases and coming down on the side of management, according to several former NLRB employees.

In an NLRB investigation process that is stacked against workers under Trump-appointed leadership, which is actively sabotaging the agency's mission, the fact that the NLRB found merit to Moore's charges suggests the evidence in his favor was very strong.

"If it is extremely clear to the Trump administration's NLRB that management acted unethically and criminally, this should indicate to any reasonable observer that something is rotten [at Kickstarter]," Moore said, noting that he still loves the company and its mission to democratize funding on the internet.

"Taylor had a strong case because we could show there's a pattern of retaliating against people who spoke out at Kickstarter," Seth Goldstein, senior business representative at the Office and Professional Employees International Union Local 153, who represents Moore, told Motherboard. "Kickstarter is being held to standards of decency and must comply with the NLRA which was passed to ensure rights for employees to engage in protected activities. I think these findings mean accountability for everyone else. We're going to keep pushing for that in tech."

Regarding Moore’s termination, a Kickstarter spokesperson said, “While we would prefer not to comment on personnel matters, we feel obligated to correct the record. This employee failed to correct performance issues that had been clearly documented in a Performance Improvement Plan and discussed in detail with him over the course of several months, leaving us no choice but to part ways with him.”

This article has been updated to include a statement from Kickstarter about Taylor Moore’s termination.