News & Commentary

April 2, 2023

Swap Agrawal

Swap Agrawal is a student at Harvard Law School.

In this weekend’s news and commentary, the NLRB prepares to file a new complaint against video game publisher Activision Blizzard, and the Fifth Circuit rules that Elon Musk broke labor law in a 2018 tweet about organizing Tesla workers.

On March 31, a National Labor Relations Board (NLRB) spokeswoman said that video game publisher Activision Blizzard violated labor law by illegally surveilling employees during a walkout and threatening to shut down company chat channels during a union organizing campaign. Activision employees staged a walkout last year to express concerns about employee safety in the wake of the Supreme Court’s decision to overturn Roe v. Wade. The Communication Workers of America (CWA) said that Activision used managers and security staff to keep tabs on workers during the walkout. CWA also said that the company threatened to close internal Slack channels where workers frequently discussed pay and working conditions. The NLRB’s investigation into unfair labor practice (ULP) charges filed by CWA against Activision found that the allegations were meritorious. The agency said that unless Activision settles, the agency will issue a complaint against the company.

The company is already facing another NLRB complaint from last year due to its issuance of a policy limiting workers’ discussion of working conditions on social media. CWA has also filed separate charges against Activision for the firing of two quality assurance (QA) testers allegedly due to their engagement in protected, concerted union activity. Video game testers and other employees at the company have been trying to unionize for years. In January 2022, QA workers at Activision-owned Raven Studios voted to unionize with CWA. In December 2022, another group of 20 QA testers at an Activision Blizzard location in Albany voted to unionize as well. Working conditions in the video game industry are notorious, especially in the “crunch” period immediately preceding the release of a new game or update. CWA has been supporting Microsoft’s acquisition of Activision Blizzard due to a ground-breaking labor neutrality agreement signed by Microsoft and the union last summer.

On March 31, the Fifth Circuit Court of Appeals ruled that Elon Musk broke labor law when he tweeted in 2018 that Tesla workers would lose stock options if they unionized. The tweet, which is still online despite the court ordering its removal, states that: “Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted. But why pay union dues & give up stock options for nothing? Our safety is 2X better than when plant was UAW & everybody already gets healthcare.” Although Tesla argued that the tweet was not a threat because Musk had stated that workers were free to join a union, the court wrote that “because stock options are part of Tesla’s employees’ compensation and nothing in the tweet suggested that Tesla would be forced to end stock options or that the UAW would be the cause of giving up stock options, substantial evidence supports the NLRB’s conclusion that the tweet is an implied threat to end stock options as retaliation for unionization.” Although union leaders applauded the ruling, they noted that it has taken almost five years to hold Musk accountable for breaking U.S. labor law. UAW President Shawn Fain said, “While we celebrate the justice in today’s ruling, it also highlights our broken US labor law. Here is a company that clearly broke the law and yet it is several years down the road before these workers have achieved a modicum of justice.”

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