Can You Really Shut Down Your Company a Week After Your Workers Unionize?

If you're thorough about it, yes.
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Gothamist DNAInfo unionize

One hundred fifteen newsroom workers learned that they'd lost their jobs the same way the rest of the world did yesterday, when the New York Times reported that local-news websites DNAinfo and Gothamist would be shuttered. Owner Joe Ricketts announced the shutdown just one week after writers and editors in the New York offices successfully unionized. All of DNAinfo's and Gothamist's offices—including those in San Francisco, Los Angeles, Chicago, and Washington, D.C., which were not part of unions—are now closed.

Ricketts' decision seems to be a response to the labor organizing at the New York office. As the Times reported, when the journalists first tried to unionize, Ricketts wrote to them: "As long as it's my money that's paying for everything, I intend to be the one making the decisions about the direction of the business." Meanwhile, Chief Operating Officer Dan Swartz wrote: "Would a union be the final straw that caused the business to close? I don't know." American labor laws normally protect workers from retaliation for unionizing, but Ricketts seems to have used a dramatic exception: A business may always close its operations entirely.

"They can do that for any reason, even if it's purely retaliatory," says Cynthia Estlund, a labor-law professor at New York University. The basis of this right is a 1965 Supreme Court case, Textile Workers Union v. Darlington Manufacturing Co. The idea is that employers can't shutter part of their company in response to union organizing because that would unfairly discourage the remaining workers from organizing. But, Estlund says: "If you're willing to literally commit suicide—they don't use the word 'suicide'—you can't get any benefit out of chilling employees' concerted activity." There's nobody left to chill.

If lawyers decide to pursue a case charging that Ricketts acted illegally, they'll have to prove that some part of the business is still operating—say, if Ricketts were tied to another media company somehow—or that, after the shutdown, Ricketts opened up a similar business elsewhere.

Statements from Ricketts and other members of his organization, though, suggest they're confident their shutdown is complete and that they won't be dinged for retaliating against their employees. Besides their initial threats, a spokeswoman for DNAinfo called out the union in a statement to the Times: "The decision by the editorial team to unionize is simply another competitive obstacle making it harder for the business to be financially successful." Such a statement would normally be a "smoking gun" for a union-retaliation argument, says William Gould, an emeritus law professor for Stanford University and a former chairman of the National Labor Relations Board, which decides unfair labor-practice cases. In addition, saying that the decision was financial, not retaliatory, may not help: The law makes it difficult for companies to make such arguments unless they've already sat down to negotiate with a union, Estlund says. Unions aren't considered automatic harms to businesses.

It remains to be seen whether any workers or their union, the Writers Guild of America–East, will take action. If they do, they'll have to file a charge with the general counsel for the NLRB, who will decide whether to lodge a complaint with the board. If the general counsel declines to do so, that's the end of that. The term of the NLRB's general counsel, Richard Griffin, appointed by former President Barack Obama, expired last year, leaving his deputy in charge. President Donald Trump has nominated a replacement, Peter Robb, but he hasn't been confirmed yet. Robb's politics—and friendliness to union cases—are under hot debate. Supporters say he'll help right an NLRB that leaned too far left, while critics worry his appointment will harm workers.

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