Welcome
Daily Labor Report®

Union’s Death by Many Cuts Shows Precarious Perch in Digital Age

June 11, 2020, 9:41 AM

Management at Cleveland’s flagship newspaper closed out a years-long fight last month when they dismantled the company’s newsroom union, using tactics that may have been considered illegal union busting during a Democratic presidential administration.

In general, the National Labor Relations Act makes it illegal for employers to “interfere with, restrain, or coerce” workers exercising their rights to organize and join unions. It’s still unlawful for employers to intentionally crush union organizing through practices such as “unit packing"—diluting support for the union by adding more workers to the list of eligible voters—unless they can prove some other, legitimate business reason.

But technological upheaval and advancement has blurred traditional distinctions between workers, and created new departments and even new business models in some sectors. Those changes have allowed employers to create and use a variety of structural mechanisms that can make unionizing more difficult, while also making it tough for unions or workers to prove any interference or other legal violation.

While enabled by the collapse of print advertising and simultaneous rise in digital news, Advance Media’s formula in Cleveland is replicable in other struggling industries, aided by pro-employer policy changes made by the National Labor Relations Board since 2017. President Donald Trump’s appointees during their tenure have changed labor law and interpretation to make it easier for businesses to oust existing unions; to restrict organizing and other union-related communications via company email; and to bar union organizers from their property, among other pro-business rulings.

As technology upends analog industries, “you’re going to continue to see that with a caveat: the employer could not intentionally undermine the union and the bargaining unit,” said Roger King, senior labor and employment counsel for the HR Policy Association, a public policy organization of chief human resource officers representing large U.S. employers.

Those rulings are also a signal to practitioners and businesses that the Board members will likely be sympathetic to their perspective in other cases raising novel issues and legal questions.

In The Plain Dealer’s case, the paper’s parent company, Advance Media, established separate companies for the print and online editions. As print advertising revenue declined over many years, the company slowly laid off workers from the unionized print side and transferred others to the non-union online business, Cleveland.com, while also hiring for that business.

In May, the NewsGuild said Advance laid off the four remaining union staffers. The unit was scheduled to dissolve May 17.

Union advocates say the strategy was a deliberate technique to undermine its bargaining power as opposed to a division of the operations for business reasons—especially since articles were cross-published between the print and online versions.

“The company used that as a wedge to start growing the quote-unquote digital side of Cleveland.com,” said NewsGuild President Jon Schleuss. “But really it was just a way to offload union jobs into non-union jobs.”

The Washington-Baltimore News Guild, which is affiliated with the Communications Workers of America, represents employees of Bloomberg Law.

Officials at Advance and Cleveland.com didn’t respond to requests for comment.

Separate Workers, Same Jobs

It’s not inherently unlawful for employers to maintain union and non-union shops in the same workplace, said Wilma Liebman, a former Democratic NLRB member. In the construction industry, for example, it’s common to have a unionized workforce doing commercial work and a non-union workforce doing residential work. This is sometimes called double breasting.

Arbitrators have in some cases found that employers may reassign work to non-union workers. Those include instances where and when employers redistribute work due to technological changes—a circumstance that could be used to describe The Plain Dealer—and where the work is not covered by a collective bargaining agreement.

In 2000, an arbitrator ruled that an automotive company in Milwaukee could lawfully reassign work to laser technicians outside a bargaining unit. Although the same work had been done manually by union laborers, the arbitrator said the new skills were outside the purview of the bargaining unit.

But such decisions can also go the other way. In 2007, an airline was found to have violated a collective bargaining agreement for creating new non-unit positions because the work was previously done by union employees.

The NLRB, under leadership of Trump appointees, in 2017 reinstated an older standard for deciding when a proposed unit—the group of workers that will join the union—is appropriate, limiting unions’ discretion to identify which groups have similar enough job descriptions to bargain together as a union.

It modified those rules again in a 2019 ruling in favor of Boeing Co. The then-sitting Democratic member said in a dissenting opinion in that case that the resulting standard, which is currently in place, is more pro-employer than any earlier rule.

Other moves by the Trump labor board, like abandoning a rule requiring companies that take over a unionized business to adhere to the existing labor contract if they refuse to re-hire the union workers, have also made it easier for businesses to dilute unions’ support through dividing or restructuring their workforce. As a result, employers can more easily use strategies like unit packing, double breasting and a number of other monikers to alter the size of bargaining units.

“Employers have been dividing up the workplace in different ways for some time anyway, and this is also kind of the fissured workplace notion,” said David Rosenfeld, a union-side labor lawyer at Weinberg, Roger & Rosenfeld, in California. Rosenfeld referred to the notion popularized by David Weil, former head of the U.S. Department of Labor’s Wage and Hour division, and meant to refer broadly to the practice of outsourcing business functions that used to be handled internally.

“It’s just a matter of dividing or moving things around in a way that either isolates the union supporters,” in the case of an organizing drive, “or puts them in a larger group, so you can withdraw recognition” from their union, Rosenfeld said.

To contact the reporter on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com and Hassan A. Kanu at hkanu@bloomberglaw.com

To contact the editor responsible for this story: Bernie Kohn at bkohn@bloombergindustry.com and Jo-el J. Meyer at jmeyer@bloomberindustry.com

To read more articles log in. To learn more about a subscription click here.