Courts Back Detroit Scab Papers

Ellis Boal

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In July a federal court of appeals dealt a crushing blow to the Detroit newspaper strikers, holding management was bargaining in good faith at the time they walked out in 1995.  This means replaced workers—of whom there are still several hundred—have no rights to displace scabs and over a thousand more will get no backpay.

The ruling was crushing because, after five years the legal strategy of this once-militant strike was all the unions still had going.

INITIAL MASS SUPPORT

This writer, along with most observers expected the appeals court to go the other way. The same optimism surrounded a 1997 request for a federal NLRB injunction to put members back to work provisionally.

But many activists also felt more could have been done to harness the terrific energy in the early days to bring the dispute to quicker brighter end.

It started with such great promise.  The Detroit News and the Detroit Free Press are media.  Media pose as the conscience of capital.  The city has a tradition of militancy.  These factors brought thousands of people into the streets at the production plants.

The strikers put out their own paper, the Sunday Journal, with as many as 30,000 sold and a press run of 300,000 weekly.  Gannett and Knight-Ridder, the corporate owners, took over $250 million in losses and missed profits.  The papers’ circulation declined by a third.

An AFL-CIO-sponsored support coalition had weekly meetings of up to 300 supporters.  It called for violating the state court injunction, sympathy strikes, and a mass action strategy.  Detroit’s labor movement was electrified.  Not even in the 1981 PATCO strike was there this level of militance.

But as is often the sad fact, lulled by years of complacency the local leadership wasn’t willing to go to jail and wasn’t willing to take the risks.  In a widely-quoted Cleveland Plan Dealer article Detroit News publisher Robert Giles said “We’re going to hire a whole new work force and go on without unions, or they can surrender unconditionally and salvage what they can.”

After initial defiance the unions slipped.  They decided to comply with the state injunction and rein in picketing.  In 1997 they ended the formal strike and offered to go back without a contract.

Management wouldn’t fire scabs to make way for returning strikers.  This was the reason for the NLRB’s failed attempt to get members back through the federal injunction.

The extent to which the membership went along with the leadership’s tactics will be debated for years to come. In the whole five years there were only two mass meetings of the memberships of all six unions.

After the return to work was announced two of the unions were allowed to vote on it. One supported returning.  The other, whose vote was only advisory, opposed it (in agreement with this writer).  But there was no public outcry of betrayal.

LEGAL REASONING

The appeals court’s rightward legal reasoning has significance beyond Detroit.

It is not just that the court reversed a string of unanimous five-member bipartisan NLRB decisions, though this is unusual.  It is that the court expanded on the scope of management prerogatives at “impasse,” the critical time in a dispute when a strong employer can legally force its position down the union’s throat.

The papers bargained illegally in three ways, the unions said:

1. The News imposed a merit pay proposal on its editorial staff.
2. The two papers reneged on a promise to bargain jointly.
3. The papers modified the printers’ jurisdiction.

Issues (1) and (3) each only affected one union.  But the others were walking in sympathy, so the reasoning applies equally to all six unions.

Though it discredited much of management’s testimony, the NLRB nevertheless rejected union claims (2) and (3).  It said the newspapers never clearly agreed to joint bargaining and the printers’ jurisdictional claim expired with the old contract.

But it agreed with the unions on (1), the imposition of merit pay. This is where the court turned right.

MERIT PAY

Under federal labor law, there are certain topics which, if the union raises them, management has to bargain them. Therefore called “mandatory” bargaining subjects, these are the commonplace items in most contracts, such as wages and working conditions.  On a mandatory subject each side may insist on its position to impasse, each side can strike or lockout at any time in support of its position, and of particular importance here after impasse the employer can unilaterally impose its position.

Merit pay is a typical mandatory bargaining subject.  But in the recent McClatchy cases, with appellate court approval the NLRB said it was a special kind of mandatory subject.  Merit pay is standardless, the NLRB reasoned, and therefore allowing unilateral employer imposition at impasse would destroy the members’ bargaining rights.

Intuitively this makes all kinds of sense.  Forcing members to work where an individual’s pay the most basic of economic concerns depends on the employer’s whim de-“collectivizes” collective bargaining.

But in circular reasoning the court in the Detroit case distinguished McClatchy, because the News’ proposal had certain objective procedures and standards.  Under the proposal everyone would get at least 1% increase each year, collectively the average increases would surpass certain other percentages, the evaluations would be based on formal procedures, and increases would be contestable through the grievance procedure.

There is a measure of objectivity to this proposal, except for one thing: the union could not arbitrate a grievance over the size of a merit increase.  The court had to acknowledge:

To be sure, the employer’s proposal carried a good deal of discretion. . . .  But any merit pay system inherently carries much employer discretion which, of course, is why unions resist them.

But this very discretion underlies the NLRB’s doctrine against unilaterally-imposed merit pay. Instead of condemning the tactic as it did before, the court now looks the other way.

THE OUTLOOK

The outlook today is quite grim. Though their circulation remains down by a third and they still have unions across the table, the papers have reduced the workforce and returned to some profitability.  After the court ruling they withdrew the offers then on the table, reflecting that the unions have little bargaining leverage.

When the unions began the strike in the summer of 1995, the time was opportune to make their legal arguments, which were to be a safety net if the strike failed.  The papers had just committed acts (1), (2), and (3).

If the unions didn’t strike right away, they would risk a ruling that they condoned the papers’ actions.  But the summer is a time of low advertising.  The better time to strike would have been in the fall, just before Thanksgiving, when advertising revenue is high.

The national AFL-CIO at one point offered to escalate the fight to a national level.  Gannett and Knight-Ridder owned strings of other papers across the country which might have been vulnerable.  Perhaps though these companies were too big and tough for even an escalated campaign.  Commentators will also have much to say on that.

As they said to the support coalition’s recommendation for mass action, local union leaders said no to the national AFL-CIO.  They hoped an effective circulation boycott would suffice.  The boycott was effective, but it didn’t suffice.

Even DNA expected the unions to win the court case (as the court suggested in a wry aside).  But News publisher Giles’s taunting threat proved good; the giddy enthusiasm of the song in this article proved wrong.

The judges in the various cases who ruled against the unions were appointed by presidents of both parties.  The decisions can be pinned as much on Bill Clinton as on Ronald Reagan.

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Notes:

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Ellis Boal was a songwriter, legal pamphleteer, and organizer of protesting runners and medalists in the Free Press marathon during the strike.

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