Striking Out

The great Detroit newspaper strike may be over, but the hard feelings are not, and neither are the legal battles.

After 19 bitter months on the picket line, the 2,000-plus workers who were striking against the Detroit News and Detroit Free Press offered in mid-February to go back to work. Unfortunately for them, somebody else already had their jobs. The newspapers outlasted the strikers, thanks both to the deep pockets of the papers' parent companies, Gannett Co. and Knight-Ridder Inc., and to the replacement workers they hired with the promise of permanent employment.

The strikers can come back, say the newspapers, but only as openings become available. And mailroom, pressroom and circulation workers shouldn't wait by their telephones: During the strike, the papers discovered they could get by with nearly 700 fewer of them. Ironically, management's original contract offer had proposed only a 120-person reduction.

Management says the unions have only themselves to blame and calls its contract offers generous and fair. "They thought they could take the strike, shut us down and then get whatever they wanted," said Timothy J. Kelleher, senior vice president for labor relations and legal affairs at Detroit Newspapers Inc., a subsidiary of the two publishing companies that runs both papers' business and production operations under a joint operating agreement. "They miscalculated. People bought the papers, advertisers advertised in them and we never missed production."

The unions, for their part, have complained that the company repeatedly broke the rules. "The company refused to bargain in good faith, from way before the strike," said Nancy Dunn, formerly state news editor and copy editor at the Detroit Free Press, and now a spokeswoman for the six unions that participated in the strike. "They wanted to break the union. It's as simple as that."

The dispute may soon focus attention on a federal agency that most Americans have never heard of: the National Labor Relations Board (NLRB). The board, a creation of the 1935 National Labor Relations Act, may order the Detroit newspapers to reinstate most of the strikers. But whatever the outcome, the case could escalate a long-simmering controversy over the NLRB's role in a workplace that has changed markedly since the agency's inception.

If the five-member NLRB--a sort of special labor court--ultimately rules in favor of the Detroit unions, the papers will have to reinstate the strikers and give them back pay from the time they offered to return to work. If the NLRB's regional director, who has found merit to the unions' complaint, decides that waiting for a ruling by the board would mean an unreasonable delay, he could pursue the unions' request that he seek a court injunction requiring that the strikers be put back on the job ASAP.

Naturally, with the money, jobs and community sensitivities at stake, any ruling will spark second-guessing. "There's potential for all kinds of unhappiness," acknowledged William C. Schaub, the NLRB's regional director in Detroit. And barring a settlement between the unions and the papers, any NLRB decision will almost surely be appealed to the federal courts.

When your job is to resolve the private sector's most intractable labor disputes, controversy comes with the territory. But these days, the NLRB is itself embroiled in a bruising struggle with the business community and with congressional Republicans, and those clashes threaten to paralyze the agency--as well as undermine its authority.

"With a normal board, I might have some confidence" in the NLRB's decision in the Detroit case, said Daniel V. Yager, general counsel for the Labor Policy Association, a Washington advocacy group for large employers. Under the current board, he added, "it does not look good for the Detroit newspapers."

Grumbling Grows

Accusations of bias at the NLRB are nothing new. Charges that the agency tilts either toward labor or toward management have cropped up plenty of times during previous Administrations, but they have reached a fever pitch during the tenure of the current NLRB chairman, William B. Gould IV, a former Stanford University labor law professor who assumed the post in 1994.

"The controversy has erupted from what appear to be some decisions and decision making that are not balanced," said Jerry M. Hunter, the NLRB's general counsel during the Bush Administration and now a partner in the St. Louis law firm of Bryan Cave LLP. "The business community is pretty outraged at some of these decisions."

Yager is perhaps Gould's most vocal antagonist. Yager and other business supporters say the current board, appointed by President Clinton, has abandoned all pretense of neutrality. But labor partisans, not surprisingly, counter that business just got spoiled from having its way during the 12 years of the Republican Reagan and Bush Administrations.

Gould, in an interview, insisted that he's just doing his job to "encourage the practice and procedure of collective bargaining," as the 1935 law's preamble puts it. The problem, he says, is that "there is a substantial element in this country that rejects the basic purposes of the National Labor Relations Act."

The real problem goes deeper: Over the past two decades, the economy and the workplace have undergone a major transformation, while the laws governing labor-management relations have not.

Both labor and management efforts to refashion the law according to their respective worldviews have ended in political stalemate. "It has proved almost impossible to revise and reform the law in Congress," said Paul C. Weiler, professor of law at Harvard Law School. The last major change in the law, he notes, was enacted in 1959.

Unable to reach resolution, Congress and the President have essentially handed off the contentious issue of how to apply the law in this new economic era to the NLRB, a board of short-term political appointees.

Now it's coming back to haunt them.

Modern-Day Meltdown

The Detroit newspaper strike painted a vivid picture of the new realities of labor-management relations and the landmines they lay for the NLRB.

Not so long ago, it would have been unthinkable to hire permanent replacements for striking workers in Detroit, where long-dead labor bosses such as Walter Reuther of the United Auto Workers and Jimmy Hoffa of the Teamsters still cast long shadows.

Back then, though, the newspapers didn't have a lot of high-tech gizmos, like the one they have now that spits advertising flyers into newspapers using a lot less manual labor. And management at the Detroit papers hadn't yet decided that greater reliance on merit pay would buy more bang for the buck in the newsroom than uniform pay hikes.

In Detroit and elsewhere these days, the juggernaut of advancing technology, deregulation and expanding global markets have put companies under greater competitive pressures. It has also made them more resistant to unions and union demands.

But the 1935 law doesn't address companies' financial imperatives. "All we do is make sure the procedures are followed. The law doesn't permit any consideration of the substance of negotiations," Gould said, nor of "the reasonableness" of either party's position.

The law doesn't require that management and unions reach a settlement in contract negotiations--only that they bargain in good faith until they reach an impasse. Then, management can impose the terms of its last offer.

When it comes to the question of good-faith bargaining, however, distinguishing between law-breaking and plain old head-butting--as the NLRB has been asked to do in the Detroit case--isn't an exact science. In many labor disputes, "you've got to be a goddamn genius to figure out when an impasse has occurred," as distinct from bad-faith bargaining, said Samuel Estreicher, director of the Center for Labor and Employment Law at New York University School of Law. "When both sides go through the motions [of negotiating], it's very hard to determine. Both sides play games."

Businesses' increasing use of permanent replacements for striking workers, as in the Detroit newspaper strike, has only upped the ante.

Although the Supreme Court in 1938 deemed the practice legal in a ruling now referred to as the "Mackay doctrine," permanent replacements rarely were used before the 1980s. It was then that new competitive pressures increased the incentive to play hardball, and President Reagan made it respectable. His 1981 decision to permanently replace striking air traffic controllers "had a huge effect in removing the stigma" once associated with the practice, said AFL-CIO general counsel Jonathan P. Hiatt.

Using permanent replacements has turned disputes over dollars and cents into fights about people. "It becomes a huge, very political, emotional issue, one that's very hard to compromise on," Hiatt said.

It has also increased the importance of NLRB decisions on unfair labor practice complaints. That's because the Mackay doctrine allows permanent replacements to be used only during strikes over economic issues, such as pay. Permanent replacements cannot be used in strikes prolonged or caused by an employer's unfair labor practices.

In this highly charged environment, Yager has, in a recent manifesto, accused the NLRB's Clinton-nominated general counsel Fred Feinstein, as well as the Gould board, of subverting a policy they don't like by attempting to "convert every strike where replacements are hired into an unfair labor practice strike."

Yager's evidence is hardly conclusive, but the voluble Gould hasn't helped matters by sounding off on the striker replacement issue. In an interview, he repeated his stance that the 1938 Supreme Court ruling "is wrong, and should be changed." But he insists that this "bears no relationship to my consideration" of cases involving permanent replacements--and he seems indignant that anyone would suggest otherwise.

Republican Backlash

Economic changes pose many other challenges for the NLRB, other than those evident in standoffs like Detroit's. Frequently, the agency's approach in these areas has run smack into business and GOP opposition.

Take the burgeoning use of temporary and "contract" workers. Until now, the board's interpretation of the law has made it nearly impossible for unions to organize these workers--even some who function a lot like permanent employees--or to bargain on their behalf. Labor has argued for a new interpretation of the law, and late last year, Gould agreed to revisit the issue when three key cases come before the board.

Eleven House Republicans, led by Harris W. Fawell of Illinois, quickly fired off a letter to Gould arguing against change. "Clearly, the law is well settled based upon provisions that have been in the statute for almost 50 years. . . . Any sudden changes in these interpretations could have a seriously destabilizing effect on the U.S. economy," they wrote.

It's not the first time GOP Members of Congress have clashed with Gould.

Republicans balked at his nomination, citing his earlier pro-union writings and his critiques of the 1935 law. Gould survived a bitter confirmation battle mainly because the Administration bartered with Senate Republicans for an NLRB nominee (whose term has since expired) whom they had picked.

Irate House Republicans proposed slashing the agency's budget by 30 per cent in the last Congress, although the proposal got lost in the larger budget standoff with Clinton. They may take another run at it during this Congress. In the meantime, the Republicans have resorted to legislative riders and letter-writing campaigns to block controversial agency initiatives.

The traditional system of horse-trading between the parties, which often allowed NLRB nominees to be confirmed in a divided government, has so broken down that of the three current board members, only Gould has been confirmed by the Senate. The other two members have temporary appointments that expire later this year. A fourth board member died in February, and another position has been vacant since mid-1995.

That impasse has added even more fuel to the political fire. Republicans have argued, for example, that the agency shouldn't even take up the temp workers issue when there are so few confirmed members in place.

Although Gould has become a lightning rod, he isn't the only--or even the major--cause of the controversy dogging the NLRB. Like judges, the board's members are expected to be independent and impartial. But as short-term political appointees, they don't have the remove of many judges. Moreover, in the polarized field of workplace relations, it's hard to find nominees, even from academia, who don't have strong leanings.

At bottom, the board's difficulties arise from the fact that Congress and the President have asked it to resolve something they can't decide themselves: how--and perhaps even whether--to promote workplace democracy in the bewildering new economic order.