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Activision Excluded Raven QA Union from Promotions – Here’s Some Legal Context

This article is over 2 years old and may contain outdated information

There’s finally some good news coming from the swirling vortex of sadness surrounding Activision Blizzard. Well, almost. Today, emails went out to staff announcing the QA department, historically underpaid and denied things like benefits and bonuses, are being promoted. There is, however, a crucial exception.

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Activision Publishing CEO Josh Taub sent out a company-wide email (which was later deliberately circulated to the press) announcing all the company’s part-time QA workers are being promoted to full-time employees. This status change not only gives the QA folks a full allowance of hours, it gives them “full company benefits” and a wage hike to $20 an hour minimum.

This is obviously great news for everyone involved, but there’s a notable group who isn’t involved: Raven Software. The folks at Raven are currently gunning for a shot at unionization, a move that probable new owner Microsoft has stated it won’t interfere with. Currently, the situation is being reviewed by the National Labor Relations Board, after Activision refused to voluntarily recognize the union.

In a statement given to Bloomberg, Activision explained why Raven QA wasn’t included in this change. The company claims this is “due to our legal obligations under the National Labor Relations Act.”

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Is that true? Well… probably. Language in the NLRA is left intentionally vague in places, in order to allow the Board breathing room to make decisions based on individual circumstances. The Board’s website puts aspects of the law in closer to layman’s terms, and one of the things a company cannot legally do is:

“Make changes in wages, hours, working conditions, or other mandatory subjects of bargaining before negotiating with the union to agreement or overall impasse, unless (1) the union prevents the parties from reaching agreement or impasse; (2) economic exigencies compel prompt action; or (3) the proposed change concerns a discrete, recurring event scheduled to recur in the midst of bargaining (such as an annual merit-wage review), and you give the union notice and opportunity to bargain over that matter.”

Also, a company cannot legally do this:

“Make unilateral changes in terms and conditions of employment during the term of a collective-bargaining agreement (CBA), unless the union has clearly and unmistakably waived its right to bargain or the change is too minor to require bargaining. (Do not assume that a change you deem minor would be so viewed by the Board.)”

However, a company can legally do this:

“Make unilateral changes that are minor, or where the union has clearly and unmistakably waived bargaining. (Do not assume that a change you deem minor would be so viewed by the Board.)”

Since Raven QA’s union (Game Workers’ Alliance, part of Communications Workers of America) has formed its union, and is now waiting for the Board to force Activision to bargain, it seems like Activision is closer to correct than incorrect as far as “legal obligations” are concerned. It’s a little unclear how a pending Board review after a refusal to voluntarily recognize fits in that time frame, at least with the language on the Board’s website.

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To me, it seems like Activision believes that the first rule is in effect. The union has been established, and has started the process towards working on a CBA. But that bargaining hasn’t started yet, since those Board reviews take time to complete. Therefore, since bargaining hasn’t started, giving all the Raven QA folks the same upgrade as every other QA worker at Activision would technically be illegal. I’m not seeing another obvious explanation, but I’m also not a lawyer! Grain of salt, you know the deal.

Since a union is a separate body from the overall employee pool, companies can make changes to the latter, without including the former, under the pretense that said change doesn’t have anything to do with the unionization. Which, of course, is another claim here. That said (once again, writer opinion/speculation here and not a factual claim), the optics and timing are uh, pretty dang sus if you ask me.

I’m not saying this is the case (opinions are my own!!!), but an onlooker could easily interpret the situation as Activision exploiting the terms of the NLRA in order to discourage further unionization efforts without technically doing so. Since the GWA is the only union at the company, the fact they aren’t getting the pay raise is extremely visible. And since Activision is trying to argue the whole company should vote and not just Raven QA, this sort of action could definitely scare people away from supporting the union.

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So if the Board confirms the union is valid, then the bargaining has to start. Obviously, wages, hours and benefits are some of the primary topics during a CBA. Challenging this situation could jeopardize the review, and at the end of the bargaining it’s totally possible the GWA/CWA comes out with a better deal anyway.

So, is Activision promoting its QA staff in good faith, or is this some kind of underhanded and technically legal union-busting? It’s (legally) hard to say, but what can be said is whatever the motivation is, the change very likely doesn’t violate USA labor law. It’s also important to remember that while not a union, the ABK Worker’s Alliance has been putting a lot of effort into making demands ever since the California lawsuit happened. That being said, the GWA has issued a statement in response to GWA being left out, in which it very much aligns its interpretation with mine. Here:

Obviously this situation is still developing, with more statements coming as I’m writing this damn article. But the long and short of it is this: Activision’s legal force isn’t stupid; big companies like this will always shoot for the bare minimum legal requirements, and push up against them as much as possible. I doubt you’ll see any legal rake-stepping on the level of Walmart here. But still, it’s important to understand the legal context here, because if you’re gonna jump into the conversation you wanna come correct. Also, I wanted to know myself so I may as well share what I found!

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Lucas White
Lucas plays a lot of videogames. Sometimes he enjoys one. His favs include Dragon Quest, SaGa and Mystery Dungeon. You can find him on Twitter @HokutoNoLucas. Wanna send an email? Shoot it to [email protected].