News & Commentary

January 23, 2022

Kevin Vazquez

Kevin Vazquez is a student at Harvard Law School.

On Friday, the NLRB’s Brooklyn-based regional office announced that it planned to formally accuse Amazon of illegally firing a union organizer in its Staten Island warehouse in November. The NLRB regional director found merit in the claims of the Amazon Labor Union, an independent union founded by current and former Amazon employees, which has filed a petition to hold an election at four of Amazon’s facilities in New York City, that the company had illegally fired a union activist. According to an agency spokesperson, the NLRB will issue a complaint against Amazon if the case does not settle.

Although the NLRA prohibits companies facing union campaigns from retaliatory dismissals, the NLRB’s remedial authority is limited to reinstatement and backpay – minus any amount the worker earned from another job – and does not include punitive damages. Moreover, it often takes months or even years for disputes arising from alleged retaliatory firing to be resolved, even further limiting the deterrent effect of the NLRB’s prosecutorial powers. In response to these shortcomings, Jennifer Abruzzo, the NLRB’s general counsel, has indicated her interest in pursuing additional make-whole remedies beyond reinstatement and backpay, such as healthcare costs and moving expenses, and she has also instructed regional officers to seek injunctions from federal courts to more quickly reinstate illegally dismissed workers. Ultimately, however, adding serious teeth to the NLRA’s enforcement scheme will require a change in federal law.

Workers at Raven Software, an Activision Blizzard studio, have announced their intent to unionize with the Communication Workers of America (CWA), which would be the first union at a AAA gaming company in North America. On Friday, the workers asked the company to voluntarily recognize their 34-person bargaining unit – called the Game Workers Alliance – which, they said, has the support of 78 percent of the workers. The workers have given the company until January 25th to respond to their request for voluntary recognition, and if it fails to do so, they will file for an election with the NLRB. A company spokesperson said that Activision Blizzard is “carefully reviewing” the request for voluntary recognition and “deeply respects the rights of all employees under the law to make their own decisions about whether or not to join a union.” So far, however, the company has, according to CWA, “used surveillance and intimidation tactics” to silence workers, and it hired WilmerHale, a union-busting law firm, in July. News of the union formation comes shortly after Microsoft announced an agreement to buy Activision Blizzard for nearly $70 billion, the biggest buyout in video game history, earlier this week.

Beyond the U.S. borders, more than 7,000 workers at a General Motors factory in Mexico will vote next week to decide which of three unions will represent them, which could prove to be a pivotal moment in Mexican labor law. The vote will be the first major test of the labor provisions included in the United States-Mexico-Canada Agreement (USMCA), the trade treaty that replaced the North American Free Trade Agreement (NAFTA) in July 2020. It could also be an important test of the labor reform enacted by Mexican President Andrés Manuel López Obrador in May 2019, which Jason covered for OnLabor last March. In August, a Confederation of Mexican Workers (CTM) contract – which, according to the AFL-CIO, “was considered a ‘protection contract’ by many observers – was rejected in a legitimation vote, which was required by the Mexican labor law reform. The AFL-CIO also called on both GM and the Mexican authorities to “guarantee the conditions for a fair and open union election,” in accordance with the Mexican labor reform.

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