When employers want to stop their workers from organizing, they often hire special union avoidance companies — sometimes called labor persuaders — to run anti-union campaigns. The union busters use a pretty standard set of legal, illegal, and line-skirting tactics to try to scare workers away from voting yes in an upcoming union election.
One tool in the labor persuader toolkit is to put up a slick-looking anti-union website. This is what the Fred Hutchinson Cancer Center (Fred Hutch) did recently in its efforts to prevent its Advanced Practice Providers (APPs) from unionizing with the Union of American Physicians and Dentists (UAPD).
UAPD filed a representation petition for a unit of APPs on May 28. Six days later, on June 3, Fred Hutch registered the domain getthefactsfredhutch.com. By June 10, at the latest, the domain was pointing to an anti-union website full of the usual stuff about how unions are a “business” that will take your money and lie to you.
When I say that this is the “usual stuff,” I mean that quite literally. Amusingly enough for what I am going to describe later in this piece, the same anti-union firm that put up getthefactsfredhutch.com also apparently put up getthefactsprmce.com and provswedishfacts.com. All three use Wordpress, run on a Bricks theme, and use the Automatic.css and BricksExtra plugins. As you can see below, the three websites have strikingly similar content and design despite totally different employers and unions.
When I came upon the Fred Hutch website late last week, I thought it would be fun to create a response website. If anti-union firms are going to paste their usual slop into a slick website trying to persuade workers not to be in a union, then why not return the favor. It’s easier than ever to do with AI.
So on June 23, I registered realfactsfredhutch.com and proceeded to create a counter-website that responds to getthefactsfredhutch.com. I did this on my own. I received no money for doing it. In fact, it cost me $11.12.
Where the Fred Hutch website points out how much workers typically pay in dues, I point out how much more money unionized workers typically earn. Where the Fred Hutch website says that labor unions can legally say deceptive things during organizing campaigns, I point out that employers can legally say deceptive things during organizing campaigns (the NLRB has adopted a hands-off approach so as to avoid endlessly litigating election messages). Where the Fred Hutch website says in its answer to “what is a labor union” that it is a business workers pay to represent them, I answer the same question by saying unions are organizations of workers that bargain collectively.
The Fred Hutch bosses were apparently not happy with my website and so quickly hired Ballard Spahr, a Big Law firm, to harass me about it by pretending like what it doesn’t like about the website is that it infringes upon Fred Hutch’s intellectual property. Ballard Spahr began its campaign to shut me down by sending a takedown notice to Cloudflare, my domain registrar and DNS. Cloudflare sent me an automated message about it and sent an automated message to my virtual private server provider, Digital Ocean. Digital Ocean then sent me an automated message about it, saying it was in my discretion whether to comply.
The website, which is completely non-commercial in nature, was never infringing on any Fred Hutch IP. But the notice from Ballard Spahr did contain some specific complaints about similar colors and similar CSS and so I decided I would just make every change they asked me to make. I copied all of their objections into a Claude Code session and prompted the harness to do every single thing Ballard Spahr asked of me.
The Claude Code harness proceeded to completely rewrite the entire website — all of the HTML, CSS, and JS — from scratch, so as to be totally sure there were no Wordpress artifacts still in there. Instead of blue and teal, it went to red and beige. There are clear disclaimers at the top and bottom of every page to ensure that nobody could ever think this is a Fred Hutch website rather than an independent website about the Fred Hutch organizing campaign.
I even gave Ballard Spahr a call and left a voicemail letting them know I had made all the changes they asked for and to give me a call back so we can hash out any other concerns they might have.
A couple of days later, two (2) Ballard Spahr lawyers called me (might as well double-bill the client I guess) and proceeded to try to further intimidate me while offering totally non-specific continuing objections to the website. They even accused me of dishonesty when I explained to them who I am and that I am doing this on my own out of my own pocket.
The only clear thing that they demanded was that I transfer to them my realfactsfredhutch.com domain, on the theory that it infringes on the Fred Hutch trademark. I explained to them that this is not the case. Under the nominative fair use doctrine, you are allowed to use someone else’s trademark to talk about a company, which is exactly what I have done. They know that of course. They are IP lawyers. But they don’t care. Their job is not to make sure IP laws are followed. It is to intimidate anyone their well-endowed clients point them towards.
I pointed out that this sort of nominative fair use is very common in the labor context. TraderJoesUnited.org, which is about the Trader Joe’s organizing campaign, is not an IP infringement. Neither is StarbucksWorkersUnited.org. When I asked them whether they believe those are IP infringements, I was told that they don’t answer hypothetical questions.
Beyond demanding that I give them the domain, all I got were vague objections to the content being too similar. They objected to the fact that my FAQ page has the same questions on it as the Fred Hutch anti-union FAQ page, which itself has the same questions on it as the Providence Regional Medical Center FAQ page and the Providence Swedish FAQ page. They are, after all, frequently asked questions.
In response to these objections, I asked them whether they are really contending that I cannot ask “What is a labor union?” or “What is the NLRB?” on my website because Fred Hutch asked the same thing. To which I got a vague non-answer about how I should make something totally original.
Of course, the purpose of my website is to respond to the Fred Hutch website, to give pro-union answers to the same questions Fred Hutch gave anti-union answers to. The parallelism is part of the point-counterpoint nature of my message. I would say that this seemed to be lost on them, but again, it wasn’t really. Ballard Spahr lawyers are not stupid, just greedy.
The call ended with no progress being made. So, yesterday, Ballard Spahr emailed me the below letter.
The letter mostly complains about the first version of the website, the one that existed before I made every change they asked me to make. The word “original” — used in reference to the first version of the site — appears eleven times in the five-page letter. I guess they had already billed a bunch of hours typing up what they did not like about that first version and felt like they had to make some use of it. But, needless to say, I can’t do anything about the first version of the website. It’s already gone.
The only thing that does not seem to be about the first version of the website is that they want my domain (which is nominative fair use) and that they don’t like my FAQ page because it “contains identically worded questions and nearly identically worded answers as on Fred Hutch’s site, and they are presented in the same order, within the same categories, and using the same drop-down functionality.”
Last night, I responded to this complaint by changing the order of the questions, moving some of the questions into different categories, eliminating a couple of the categories, and making it so that the answer to each question is permanently visible rather than having the answers populate using drop-down functionality.
This is what they care about, right? The drop-down functionality, right? Well it’s gone now and I’m sure that will satisfy them. After all, they are genuinely concerned about their intellectual property, not using IP law as a bad faith pretext to try to shut down speech they don’t want their workers to hear. Right?
If Fred Hutch is willing to go to these lengths to intimidate some random guy with a website who is mostly out of their reach, one can only imagine what they must be doing to their own workers, people who are economically dependent on the company and therefore have good reason to fear retaliation. Workers won’t have freedom until we can put a stop to this kind of thuggery.
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