In the past decade, digital media has experienced a boom-and-bust cycle. Sites that were buoyed in the early 2010s by digital-advertising dollars watched their traffic plummet in subsequent years as readers shifted to consuming content on social media. The next step for many publishers like Vice and G/O Media has been to lean into private equity ownership to keep afloat. With that strategy have come cost-cutting measures—namely, staff layoffs. It is against this ominous backdrop that over the past few years employees at Vice, G/O Media, the Huffington Post, BuzzFeed, Slate, The New Yorker, the LA Times, New York Media, and Vox Media, among many others, have decided to organize.
Management has been creative in its response to organizing drives. Hearst launched a website explaining why a union was wrong for the company. The chairman of Slate stated that a union would hamper employees’ ability to run “a sustainable, profitable business.” DNAinfo responded swiftly and harshly, shutting down completely after workers voted to unionize. All responses, though, have had this in common: their ultimate goal is to avert a union.
ICYMI: Why did Matt Drudge turn on Donald Trump?
This is disappointing, to say the least. Some of the harshest responses to organizing efforts have come from traditionally liberal and purportedly employee-friendly organizations. The Slate Group, a staunchly liberal media conglomerate, attempted to force its union to represent non-dues-paying workers, essentially invoking a “right to work” clause; this is a tactic regularly employed by conservative state governments to undermine union influence.
In many newsrooms, the liberal slant in coverage is at odds with the management’s narrative that a union isn’t “right” for their workplace. One week after New York–based employees of the community-minded neighborhood news network DNAinfo voted to unionize in 2017, Joe Ricketts, the company’s billionaire owner, announced he would shut down operations and lay off all 115 employees. Ricketts published a blog post on his website entitled “Why I’m Against Unions at Businesses I Create,” in which he states that unions “promote a corrosive us-against-them dynamic that destroys the esprit de corps businesses need to succeed.” And earlier this month, after the entire staff of Deadspin had abruptly resigned from G/O Media and with union negotiations stalled, Jim Spanfeller, the company’s CEO, sent a letter to the union stating, “Your unreasonable and unprecedented demands are not in the best interests of the company and would inhibit our ability to successfully operate our websites.”
The presumption that collective negotiation creates an adversarial dynamic between employee and employer is inherently dishonest. Union negotiations can only exacerbate a relationship that is already in place—and while that relationship may be somewhat adversarial to begin with, it is the negotiations themselves that present an opportunity to redress the lack of balance between the parties.
Under the National Labor Relations Act of 1935, employees have an express right to organize. Taking an adverse action against an employee—such as firing them—because of union activism is prohibited; if a firing occurs in relative proximity to an organizing effort, the burden is on the employer to prove that it is unrelated. Managers are also prohibited from using threats to interfere with, restrain, or coerce employees who support organizing. They cannot promise or imply a promise of benefits if the employees opt not to unionize, nor can they spy on an employee’s union activities. Employers do have a First Amendment right to express their opinions; courts have stated that “an employer does not commit an unfair labor practice by presenting anti-union opinions and arguments so long as those opinions and arguments do not contain any threat of reprisal or any promise of benefit.”
Nonetheless, many media employers have pushed up against the line. Some even appear to have wholly ignored the NLRA: Dave Portnoy, a founder of Barstool Sports, quote-tweeted a union organizer’s offer of advice with the statement, “If you work for Barstool Sports and DM this man I will fire you on the spot.” It was later reported that Barstool Sports had settled with the National Labor Relations Board (NLRB) over complaints related to the tweet as well as a Twitter handle that claimed to be “the labor movement inside Barstool Sports” but was in fact run by management, and could have served the purpose of monitoring employees who were sympathetic to the union.
When employees at Hearst began signing union cards, the company launched a public website claiming to explain to employees “what it really means to be in a union.” The site’s faq warns that employees may lose benefits; “the [union] could agree to give up perks you may like, like press trips and working from home.” Employees who opt to organize, the website also notes, will no longer see the benefits of Hearst’s pension plan.
The Hearst website employs a quote from an NLRB case that has been regularly repeated by opponents of unionization: “Collective bargaining is potentially hazardous for employees and…as a result of such negotiations employees might possibly wind up with less benefits after unionization than before.” This quote, which has been cited in anti-union op-eds on Fox News, in The Hill, at 1-888-no-union.com, and elsewhere, has been taken wholly out of context. The language is not a finding of the NLRB; rather, it represents the viewpoint of a manager whose words were deemed to be coercive. Ironically, it also appears to restate the thesis of Hearst’s entire website.
These patterns of managerial response do not take place in a vacuum. The political climate and indeed the political tilt of the NLRB at this time are stacked against organizing employees. In April 2018, Donald Trump appointed his third board member to the NLRB, shifting the composition of the main adjudicating body for unfair labor practice claims to consist of three Republicans and two Democrats. Later that year, another Democrat’s term ended, further shifting the board to the right.
Since then, the NLRB has consistently reversed precedents, thus aggressively expanding management rights. Last December, the NLRB overturned a prohibition on barring employees from using their work email to conduct organizing activities. Earlier last year, the NLRB made it easier for employers to oust a union if they had evidence that the union had lost majority support.
Since Trump came into office, reports of unfair labor practices to the NLRB have declined dramatically, from more than 20,000 per year through the Obama presidency to 18,552 in 2019. Bloomberg reported that organizers feel discouraged from lodging complaints before a Republican-controlled NLRB, considering it to be counterproductive or “actually dangerous.” Not only do litigants risk adverse decisions; their complaints risk becoming legal vehicles for further erosion of established rights.
There is no doubt that as the Trump administration continues to chip away at established rights regarding collective bargaining, media employers will become more emboldened in discouraging legal union organizing.
RELATED: The reasons for unionizing haven’t changed much in the last 80 yearsJessica Meiselman Jessica Meiselman is a lawyer and writer in Brooklyn. She has been published in Vice, Pitchfork, Vanity Fair, Artsy, and Billboard.