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NLRB slaps down Activision's attempt to stop another union

If at first you don't succeed try again. Then fail again.

Video game maker Activision-Blizzard's attempts to stop a second group of quality assurance employees for unionizing has been slapped down by the National Labor Relations Board, clearing the way for an organizing vote at the company's Albany, New York offices.

The NLRB had already given Albany QA workers the go-ahead to unionize in October, but the biz quickly filed an appeal, arguing that quality assurance testers were too integrated into other groups to be considered an independent bargaining unit. 

If that sounds familiar, that's because it's very similar to the same line of reasoning that Activision-Blizzard tried when QA employees at its Raven Software subsidiary tried organizing earlier this year. QA folks are integrated, and there aren't many of them. Therefore, giving them a union would disadvantage other employees.

The NLRB also denied the game maker's requests in that case, and those employees held a successful organizing vote in May.

In its petition against the Albany decision, Activision-Blizzard asked the NLRB to impound ballots for the union vote, which was set for late October. The NLRB's review board said in its final decision yesterday that "The Employer's Request for Review of the Regional Director's Decision and Direction of Election is denied as it raises no substantial issues warranting review."

"We are still waiting for our new election date, but we look forward to the impending ballot count without interruption," the Game Workers Alliance Albany Twitter account said after the decision. "Activision management's bitter attempt to silence our union has failed." 

Activision's arguments fall short

Blizzard made a series of arguments in its appeal to the NLRB, from the aforementioned integration of QA testers with people from other teams (like devs, artists, etc.), to a small 18-person union having outsized power over other employees, to the additional argument that there wasn't any NLRB precedent for the video game industry.

"The process of creating a video game is, in many ways, the opposite of the traditional production processes in which the Board's precedent has been developed," Blizzard argued. 

Unfortunately for the Call of Duty publisher, the NLRB didn't think the arguments held water.

With regard to the integration of staff, the NLRB agreed that "feature groups" of employees with different responsibilities is an important part of game design, but that the QA employees' integration with other team members was still outweighed by other factors that made it more important to give them bargaining power.

"The testers have a separate department and separate supervision; perform a distinct function, utilizing distinct skills; and have notably lower wages than the excluded employees," the Board said in its decision. 

Notably, the developers working in the Albany office are mostly assigned to Diablo-related projects, as are the QA testers. Developers, artists and designers, however, all report to the Diablo General Manager, whereas QA testers report to a larger corporate authority. As far as the NLRB is concerned, that means "these feature groups [don't] constitute the Employer's primary administrative structure." 

As to the issue of precedent, the Board said no one objected to the application of a non-gaming industry precedent set in a 2019 NLRB case against Boeing, so too bad. 

Unionizing efforts are just part of the conflict Activision-Blizzard is facing as it tries to negotiate a $69b sale to Microsoft, which is currently being investigated as an antitrust violation by the European Commission.

Activision-Blizzard is reportedly close to offering concessions to the EC in order to smooth the deal and stave off formal objections. ®

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