How to kill a union

Shuttering Gothamist and DNAinfo was the only legal way Joe Ricketts could get away with union-busting.

Last Thursday, the 116 employees at the hyperlocal websites Gothamist and DNAinfo found out they were being laid off from their jobs — effective immediately. Joe Ricketts, the billionaire founder of TD Ameritrade who owns both websites, had written them a letter explaining why he was shutting down the sites. (After the news was public, each website’s homepage redirected to Ricketts’ letter, leaving years of reporting inaccessible.) “Reaching this decision wasn’t easy, and it wasn’t one I made lightly,” Ricketts wrote. “But DNAinfo, at the end of the day, is a business, and businesses need to be economically successful if they are to endure.” DNAinfo had existed for eight years; Gothamist for 14.

Employees of the sites found out about the layoffs at the same time as the public, and were caught completely off-guard by Ricketts’ announcement. “He didn't even give us the dignity of informing us in person,” Ben Fractenberg, who worked at DNAinfo since 2010, told The Outline. “I was in court, reporting on a story and people started texting me. That's how I found out.” A few hours after the website shut down, former Gothamist reporter Dave Colon told me he found out by glancing at a coworker’s computer, and in an essay for The Baffler mentioned he was telling an intern how to pitch stories when he heard the news. Emma Whitford, who worked at Gothamist for two years, told NY1 she was fielding a tip when she found out.

What makes the sudden shutdown of the sites so egregious is that exactly one week ago, employees at the sites’ New York offices had voted to unionize with the Writer’s Guild of America. Although laws prohibit employers from retaliating against their employees for unionizing, there are also laws that allow them to do so. Ricketts’ vindictive shutdown of the websites is totally legal.

Ricketts is by no means the first media executive to union-bust, even if his decision to shutter the sites is extreme. Last October, Univision executives warned employees at Fusion (now called Splinter) that unionization would alter their benefits and cap salaries. A week after Fusion staff voted to unionize, Univision laid off more than 200 employees at several websites as part of a mass restructuring. More recently, Slate laid off five staffers in February, two of whom were leading the editorial team’s unionization effort, but denied that the layoffs had anything to do with the union.

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Ricketts’ abrupt shuttering of Gothamist and DNAinfo wasn’t just a message to his employees, but to workers everywhere: If you organize, you could be next. Amid mass layoffs and industry-wide pivots to video, many writers fear rocking the boat by pursuing unionization, considering themselves lucky to be employed in such a precarious industry in the first place. But few publications are helmed by a lone vindictive billionaire like Ricketts, meaning few publications have the resources to completely shut down if their employees form a union. Media has never been a particularly lucrative industry, and as The Week’s Ryan Cooper pointed out, although destroying Gothamist and DNAinfo cost Ricketts several million dollars, the move was a more appealing option to him than using those millions to keep the sites alive. And closing up shop entirely is the only legal way employers can retaliate against workers.

The right to union-bust stems from a 1965 Supreme Court case, Textile Workers Union v. Darlington Manufacturing Company, which ruled that it is legal for employers to shutter companies in retaliation against employees who unionize. “Basically what the [Supreme Court decided] is you can’t force a person who owns a company to stay in business,” Ramsin Canon, a Chicago-based labor lawyer, told The Outline. “The holding in the Darlington case said that even if you’re shutting down a company because of anti-union discrimination — as long as it’s the entire company — that’s okay.”

“The court’s rationale” allowing this, Canon said, is strange. “They’re trying to prevent discriminatory actions by an employer that are meant to benefit the employer and prevent unionization. But if there’s no company, there’s no benefit to be accrued.” Instead of negotiating with his 27 recently unionized employees in New York, Ricketts decided to call it quits.

DNAinfo was never financially successful. Ricketts, who has a net worth of $2 billion according to Forbes, floated the website with his own money since he founded it in 2009, and in March bought Gothamist for a sum reportedly in the “low seven figures,” leading to layoffs at both websites (I was laid off in January after working at Gothamist for eight months). Around the time of the acquisition, Jezebel reported that Gothamist had deleted five negative posts about Ricketts, causing some employees to worry about the website’s editorial independence. The rash of layoffs and the lack of transparency — “Nobody seems to know what’s going on,” one anonymous DNAinfo employee told Jezebel — encouraged workers at both websites to form a union. Fractenberg, who was part of the union organizing committee, said that one of the union’s main goals was maintaining both websites’ quality and independence. “We felt like we needed to have a voice in the decisions and we needed to make sure we could protect the quality of journalism that DNAinfo and Gothamist had been known for,” Fractenberg said.

Most of Ricketts’ former employees view the closure of the sites as a purely ideological move. In April, less than a month after the union was announced, DNAinfo’s chief operating officer Dan Swartz told the staff a union might be the “final straw” for Ricketts. “Through its lifespan, DNAinfo has been supported by a single investor, Joe Ricketts,” Swartz wrote in an email obtained by the New York Daily News. “Along the way, he has invested literally tens of millions of dollars of his own money…. With that in mind, I believe we need to be focusing right now on working together to find the path to profitability for DNAinfo. Think about that, and think about if bringing a union in would move us in the right direction or would distract us from what should be our shared focus.” In a September blog post titled “Why I’m Against Unions At Businesses I Create,” Ricketts said unions “promote a corrosive us-against-them dynamic that destroys the esprit de corps businesses need to succeed.”

Typically, newsrooms looking to unionize will start the process by signing union cards and informing management of their decision. Some, like the recently-announced Los Angeles Times union, lay out explicit demands from the beginning; others don't. If management chooses to voluntarily recognize the union, the negotiation process can begin. Otherwise, the union effort must be put to a vote overseen by the National Labor Relations Board, as was the case with the "DNAist union."

We didn’t get specific — far from it — with a dollar amount or an expectation for health insurance or any of that. It was purely just [about how] we want a seat at the table.
Emma Whitford

Whitford told The Outline that the nascent union never presented Ricketts with a list of demands, financial or otherwise. “From the jump, we were like, ���We’re saving the discussion of granular and specific demands for when we get to the bargaining table,” Whitford said. “We didn’t get specific — far from it — with a dollar amount or an expectation for health insurance or any of that. It was purely just [about how] we want a seat at the table.”

The now-former employees of Gothamist and DNAinfo are meeting with the company’s attorneys today, and the Writers Guild of America, East will be there to represent them. Had the company not shut down, “we could’ve been doing the same thing anyway,” Fractenberg said. Had Ricketts really been concerned about the money, Fractenberg added, he could have recognized the union and negotiated with them while simultaneously looking for a buyer for the sites. “They’re already having to pay lawyers to deal with us, and possibly paying a lot of money to deal with severance issues. They could have just done that while they were shopping it around [instead]. I think it’s another indication of how it was just [shut down] at the peak of anger.”

At a Monday afternoon rally in support of the “DNAist union,” Whitford said she hoped what happened to Gothamist and DNAinfo wouldn’t preclude other newsrooms from unionizing. “Don’t be afraid because of us,” she told the crowd of more than 100 supporters. “Do what we did.”