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Activision Blizzard lawsuit has video game workers using union tactics — but not unionizing

(iStock /Washington Post illustration)

Earlier this week, Activision Blizzard employees in conjunction with the Communications Workers of America (CWA), a major media labor union, filed an unfair labor practices suit with the National Labor Relations Board (NLRB), the federal government’s labor law agency, accusing the video game giant of worker intimidation and union busting. It’s the latest collective action in the wake of a California Department of Fair Employment and Housing (DFEH) suit against Activision Blizzard filed in July that alleged widespread gender-based discrimination and harassment. In the months since, Activision Blizzard employees have staged a walkout, and workers at other major video game companies like Ubisoft have banded together to demand similar improvements to their own workplaces. Collective action in the American video game industry is on the rise, even if unionization isn’t.

In an industry known for demanding excessively-long hours from its employees as games near their release dates, a practice referred to as “crunch,” the topic of unionization is a familiar one, but unions themselves are rare. While they do exist in the gaming industry, they’re mostly outside of the United States. Despite a number of U.S.-based developers believing there’s a need for unionization, one major obstacle stands in the way: American law is lenient on employers.

“The decline in union membership in the United States since the 1970s is not due to a lack of interest. Quite the opposite: People are very in favor of unions, particularly younger people, now more than ever,” said Trisha Pande, an attorney who represents employees and labor unions. “Employers have many tools at their disposal to intimidate workers and to chill unionization campaigns."

Pande explained that even when companies violate rules meant to keep them in check, they rarely face severe penalties. "Under the [National Labor Relations Act], there are pretty weak remedies for when employers violate labor law unless it involves unlawful termination. Most remedies for labor law violations involve a simple notice posting and no monetary penalties,” Pande said, referring to the practice of the NLRB requiring employers who violate labor laws to post a notice of their infractions on company premises so employees can see.

A majority of game developers want to unionize. Few are convinced it will happen.

There are two ways for private sector unions to be officially recognized: Either 30 percent of workers can petition to hold a union election — at which point the NLRB steps in to conduct it — or an employer can voluntarily decide to recognize a union. That first option tends to be a major sticking point due to how easy it is for employers to manipulate the run-up to a union election. Companies often hire union-busting firms, which advise them how to sow anti-union sentiment and fill the weeks (or months) leading up to elections with surveillance, mandatory anti-union meetings, propaganda, confusion, delays and intimidation.

To defeat a unionization attempt at an Alabama warehouse earlier this year, Amazon drew liberally from this playbook, distributing anti-union materials to employees in the presence of managers and installing a mailbox outside the warehouse. This confused workers into believing Amazon played a role in tallying votes. Cameras also overlooked the mailbox, giving workers the impression they were being surveilled. The NLRB has since said Amazon’s actions constitute interference and recommended a rerun of the election. (Amazon’s founder, Jeff Bezos, owns The Washington Post.)

While Activision Blizzard workers have not announced any sort of push for unionization, the company brought in WilmerHale to conduct a third-party investigation into the workplace issues exposed by the DFEH suit. CWA organizing director Tom Smith labeled WilmerHale “a known union-busting law firm.” Smith said the law firm’s involvement is part of the reason the labor union decided to get involved in Activision Blizzard’s NLRB case.

“What we’ve seen,” Smith told The Post, “has been a response of [Activision Blizzard] immediately hiring a known union-busting law firm — one that Amazon has used for these purposes — engaging in surveillance, including of the public demonstrations and people’s commentary on social media … systematically interrogating and interviewing people who’ve spoken up about the treatment they’ve received or who have been involved in the organizing, and in the most egregious instances, threatening discipline against workers that are exercising their legal rights to organize with their co-workers about issues of mutual concern about wages, hours [and] working conditions.”

Activision Blizzard employees and the CWA have declined to comment on the specifics of these incidents. In response to the NLRB suit, Activision Blizzard released a statement saying, "We care deeply about our employees’ rights and have made great efforts to respect the rights of all employees under the NLRB.”

Despite accusing Activision Blizzard of union-busting tactics, the collective of Activision Blizzard workers known as A Better ABK say unionization is not their current goal.

“We are concerned primarily with the safety of those people being targeted,” said a current employee and representative of A Better ABK, who, along with others quoted in this article, chose to remain anonymous out of fear of retaliation. “We will not stand by and allow coercion tactics. It is our hope that by supporting each other and standing up for our rights, we can continue to encourage our other co-workers to stand up and protect each other."

Why is the games industry so burdened with crunch? It starts with labor laws.

In a previous interview conducted before the NLRB suit, a different Blizzard employee said they felt that, in this moment, “collective action and solidarity with each other” sans a union is the best available solution in a place where “a lot of people are scared of the concept of unionization because of the slew of anti-union propaganda that has pervaded our country.”

Such sentiments are not as prevalent outside of the United States. Major studios associated with companies like EA Dice, Paradox Interactive, Nexon and even Ubisoft that are based in countries like Sweden, South Korea and France have formed unions, generally with the help of larger trade union groups like Unionen in Sweden and Solidaires Informatique in France. To a union rep at Massive Entertainment, a Swedish Ubisoft studio working on games like “The Division 2” and “Avatar: Frontiers of Pandora,” the nonunion approach actually makes sense. Unions, they explained, are a powerful and useful tool, but they can also be slow-moving — especially when they’re first getting off the ground.

“The existence of the union has been very helpful for making the lives of everyone at Massive better in the sense that pressure got us sick days, parental leave and other benefits not out of the goodness of Massive’s heart but in an attempt to resist full unionization,” said the rep, noting that Massive has not fully negotiated its collective bargaining agreement yet, but is most of the way there and is already able to operate in many ways a union would under Swedish law. But the rep also doesn’t believe a union is necessarily the solution to Activision Blizzard’s urgent troubles. For one, they can take months or years to establish — even in a country like Sweden, where large union confederations are a primary means of enforcing labor rights (nearly 70 percent of Swedish citizens are in unions).

“For acute problems — toxic individuals or organizations that are too careful to commit open crimes — only collective action and public outcry can create change,” the Massive Entertainment union rep said. “[That] is solved by grand actions, it is solved by walkouts, it is solved by strikes. And while a union will protect you in a strike, you still have to convince your members that now is the time to strike.”

That is not to say unions can’t be useful when it comes to draining the miasmatic muck out of toxic workplaces, the rep continued. For example, they pointed out that a Swedish union can name its own “safety delegates” to formally act as “a pseudo-HR, because no one trusts HR anymore,” and that union members have access to an “anti-harassment investigation team” — albeit one that must discover “criminal activity” to take action against an offender, which can be difficult to prove.

The union at Sweden-based Paradox Interactive, creator of “Crusader Kings,” recently took aim at workplace problems with an August survey of 133 Paradox employees. Ultimately, it found that 69 percent of women and 33 percent of respondents had experienced some form of “mistreatment” during their time at the company. While the survey included a range of different kinds of mistreatment (relating to age, language and more in addition to gender), it concluded that “mistreatment is a systemic and far too common issue at Paradox” and called for further investigation. Paradox leadership said they are planning a third-party audit, which a Paradox union rep said was always the goal.

“With the whole Activision Blizzard thing happening, that inspired us to try to figure out how big an issue this is at Paradox,” said the Paradox union rep, acknowledging that a report published last year revealed some of these issues and adding that they wish the process within Paradox and the union had moved faster. “We decided the best way to actually get some attention on the problem is to figure out the scope of it and the patterns in that problem.”

‘Battle for Middle-earth’ exposed the stresses of game development. They haven’t gone away.

The ensuing leak of the survey to press was not planned, according to the Paradox union rep, as the union doesn’t feel like the survey is fully indicative of the studio’s culture; it was restricted to union members and was not an in-depth investigation. But it still put the union in a position to be involved with the third-party audit, which helps safeguard against the conditions that, for example, allowed Activision Blizzard to partner with WilmerHale for its own workplace investigation. That, said the Paradox union rep, shines a light one of the subtler ways a union can improve a video game workplace: It can act as a stand-in for workers in places where they would otherwise not have access or influence.

“If you have a powerful union, that does help to put pressure on the company to address the root causes and often individual cases by forcing them to investigate, but also by lending the employees trust, as well,” the Paradox union rep said. “If we’re involved in an investigation and results can’t be public for whatever reason — privacy and so on — having the union involved carries a lot more weight than the company just saying, ‘Well, we’ve dealt with it. We can’t tell you how.’”

Marc Rutschle, a senior game designer and union representative at Ubisoft Paris, believes that strong unions are key to staving off the cultures of misconduct and inequity that have built up at major game studios, including Ubisoft.

“It protects the employee,” he said. “It’s not to say it’s a solution for everything. [But] I’m absolutely convinced that the story about Ubisoft would be impossible if you have a strong union in place.”

Rutschle is part of the Solidaires Informatique trade union for French workers, which earlier this year filed a complaint against Ubisoft accusing the company and its CEO of “institutional harassment.” Rutschle said that one of the trade union’s biggest accomplishments was preventing Activision Blizzard from laying off 134 workers in Versailles in 2019 as part of the company’s global plan to cut 8 percent of its workforce. Solidaires Informatique legally challenged this plan and got a French court to cancel the 134 layoffs. Ultimately, Blizzard closed down the Versailles studio a year later.

So, you worked on a video game. You might not appear in the credits.

Recent crisis-born spurts of organization could pave the way for unionization in the American video game industry — though perhaps not as immediately as industry observers might expect.

“Ninety-nine percent of all union organizing is really on a smaller, person-to-person scale: co-workers talking to each other and organizing each other on the issues and starting to build representation across the entire swath of the company,” said Emma Kinema, a campaign lead with the Campaign to Organize Digital Employees at CWA, the labor union helping Activision Blizzard workers with their NLRB suit. “I see people thinking that these different flash points will build the foundations for a union. I think these moments do a lot to, in particular, plant the seeds of organization.”

This assessment rings true to an employee at “League of Legends” creator Riot Games who represents Rioters for Change, a worker collective formed in the wake of Riot’s own sexism and misconduct crisis. In 2019, over 150 Riot developers staged a walkout in a bid to end forced arbitration — an extralegal means of keeping suits from going in front of a jury — surrounding several suits filed by employees and ex-employees, directly paving the way for Activision Blizzard’s walkout in July of this year.

“It’s important to remember that there are incremental steps between 'unorganized workers’ and 'union’ that are also good, helpful and can create better workplaces,” the Riot employee said. “All these actions — talking to fellow workers, organizing mass actions, defending one another against executive retaliation, all the way up to the paperwork minutiae of setting up a formal union — are the steppingstones to a better workplace. It’s not linear, it’s going to have fits and starts, and it might be frustrating at times. But if you value your fellows, and you value your workplace, it is worth it.”

Despite the flimsy nature of enforcement mechanisms and punishments around United States’ labor laws, Kinema believes American video game workers have a fighting chance. She pointed out that CWA has helped thousands of U.S.-based tech workers organize, and video games are already a uniquely collaborative medium with “so many types of people with so many different experiences working together to build a singular vision.” In the long run, unions feel to her like a natural fit. And a necessary one.

“We can absolutely fix a lot through collective action and through public pressure and all kinds of things. We absolutely can pressure companies to reverse certain bad policies and fix certain problems. But those are Band-Aids,” Kinema said. “The issues we face in this industry are systemic in their nature, and we need systemic solutions. That means long-term worker power. That means collective bargaining rights. That means having a union.”

Shannon Liao contributed to this report.

Inside the Activision Blizzard lawsuit

On July 20, California’s Department of Fair Employment and Housing (DFEH) filed a lawsuit against video game publisher Activision Blizzard, alleging widespread, gender-based discrimination and sexual harassment. Here’s what you need to know:

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