How long does justice take for workers forced out on strike by an employer's unfair labor practices and then locked out when they offer to return to work?

After nearly five years, there is still no answer to that question for the members of GCIU locals 13N and 289M, Detroit Typographical Union No. 18/Communications Workers of America, Newspaper Guild Local 22/CWA, and Teamsters locals 372 and 2040 who work for Gannett's Detroit News, Knight Ridder's Detroit Free Press, and their joint operating agency, Detroit Newspapers.

In May, the legal case against the newspapers and DN finally made its way to the U.S. Court of Appeals for the District of Columbia Circuit after going through the regional National Labor Relations Board, an administrative law judge, and the full NLRB in Washington, D.C. At each of those steps, most of the unfair labor practice charges by the local unions were upheld.

While the case makes its way through the court and NLRB appeals processes, Local 13N Pres. Jack Howe noted that negotiations continue under the supervision of federal mediator Brian Flores. NLRB rulings continue to restore jobs for some of the 700 workers who remain locked-out and/or fired, while the companies appeal NLRB rulings on others – including Howe, who was fired by DN after a sitdown demonstration in August 1996 that included AFL-CIO Pres. John J. Sweeney and Secy.-Treas. Richard L. Trumka, and U.S. Rep. John Conyers (D-Mich.).

Oral arguments presented

In Washington, D.C., the three-judge Reagan-appointed federal court panel – Laurence H. Silberman, James L. Buckley, and David B. Sentelle – heard oral arguments on the appeal by the NLRB to enforce its August 1998 order to the newspaper employers to take back all locked-out workers and make them whole for lost wages since their February 1997 unconditional offer to return to work. The companies presented arguments on their appeal to overturn the NLRB's order.

In one of those synchronistic events that make life curious, what happens next for the Detroit newspaper workers may hinge on the fact that Judge Silberman sat on the appeals panel.

Photo by Rebecca Cook

The protest sign on wheels sits in the church parking lot across from the new Comerica Park for opening day weekend. The sign remained at the site all weekend over the objections of the stadium personnel.

Silberman is the judge who wrote the McClatchy decision that overturned Knight Ridder's merit pay plan for Newspaper Guild members in San Jose, Calif. One of the major issues for Guild members in Detroit is the way the Detroit News bargained on and then implemented its merit pay plan. Administrative Law Judge Thomas R. Wilks cited the McClatchy decision in his June 1997 finding that the News committed unfair labor practices surrounding the merit pay issue.

During the 90-minute hearing, Silberman grilled NLRB attorney Sharon I. Block about the McClatchy aspect of the case and expressed concerns that the Detroit case would expand his original decision, while his intent was to restrain McClatchy to narrow limits.

Although it's impossible to predict an outcome based on the appeals judges' questions during the hearing, attorneys representing the unions said one of the possibilities is for the appeals panel to send the case back to the NLRB for clarification on merit pay or any other issue. That may prolong the case another year, Howe noted.

Other possible scenarios include a ruling by the appeals court later this summer that would either uphold or reverse the NLRB decision and an appeal of that ruling to the entire banc of appeals judges. The appeals panel also could separate various issues of the case and act on them independently.

A 'simple contract dispute'

Presenting the unions' side of the case was AFL-CIO attorney James B. Coppess, with assistance from Detroit attorney Sam McKnight. Although Coppess had presented The Newspaper Guild's arguments in the McClatchy case, he primarily addressed the "simple contract dispute" over Detroit Typographical Union No. 18's unfair labor practice charge that DN shifted advertising copy composing from the Communications Workers bargaining unit to non-union workers. Coppess said "the contract is very clear" that DTU members have jurisdiction over the composition of multi-columned newspaper ads.

Jeremy Sherman of Seyfarth, Shaw, Fairweather and Geraldson, a Chicago firm infamous in the newspaper world for its advocacy of union-busting, got just a few sentences out in presenting the employers' arguments before he was interrupted by Judge Silberman.

Sherman contended that the judges should overturn the NLRB's finding that the News, Free Press and DN committed an unfair labor practice by reneging on their previous agreement to participate in joint economic bargaining with the unions because the unions acted illegally in insisting on the joint bargaining.

Judge Silberman told the employers' attorney "don't even go there." He added: "You never argued before the administrative law judge or the board that the union's proposal was illegal" – which ruled it out as an appeal issue. Judge Sentelle agreed, telling Sherman that he "had the opportunity millions of times" to raise the issue.

Sherman argued that the point was "absolutely essential to our case." With Judge Silberman laughing, Judge Sentelle warned Sherman to "think about what you're saying: If you lose on this issue, you lose the case." The judges then told Sherman to move on to his other two arguments regarding the merit pay issue and the News' bargaining proposal to reclassify some journalists as salaried professionals who would be exempt from overtime pay.

Noting the sharp questioning by the judges, Newspaper Guild Local 22 Pres. Lou Mleczko said "it was very clear that the judges were well-versed on what the issues mean. I think it was good that they showed this much interest in the case."

One of those meanings is an estimated $100 million plus in back pay if the appeals court – and possibly the Supreme Court – upholds the NLRB's ruling, Mleczko noted.

The audience in the court room was divided up like guests at a church wedding. On the "union" side were Mleczko; Al Derey, secretary-treasurer of Teamsters Local 372 and chairman of the Metropolitan Council of Newspaper Unions; union attorney Duane Ice; Jim St. Louis, who heads the Workers Justice Committee; Teamsters Local 372 activist Dennis Nazelli; and fired Detroit News reporter Robert Ourlian.

On the "management" side were John Jaske, Gannett senior vice president of labor relations, and his counterpart at Knight Ridder, Marshall Anstandig.

Another management figure who could have set the Detroit newspapers on a more productive course five years ago had he wanted to, Gannett Chairman and CEO John Curley, announced during the company's annual stockholders meeting earlier in the week that he intends to retire.

The newspaper council's Alliance publication reported that Teamsters Local 372 activist Shawn Ellis engaged Curley in a long question and answer session at the meeting in Arlington, Va. Noting the millions of dollars in possible backpay that the company is liable for, Ellis told Curley: "It's just like the Lotto. You are playing craps with the court system, and you are about to lose."

At the North American Newspaper Conference hosted by Local 13N, Howe updated participants from GCIU newspaper locals around the United States and Canada about the events in Detroit and Washington, D.C.

Commenting on the donations from GCIU locals and individuals during NANC, Howe said he was "very pleased that everyone at the conference recognized the need of Detroit and San Diego and provided a shot in the arm for Calgary," where GCIU members also are fighting for contracts. "Those first few months of a strike are critical," he said.

GCIU locals 13N and 289M and their members in Detroit continue to need the support of every local union and member to help in winning the contract struggle against the giant newspaper chains Gannett and Knight Ridder.

Contributions are needed urgently to help locked-out members support their families. The locals also need donations to help pay legal defense bills, which continue to mount as Gannett, Knight Ridder and their joint operating agency, Detroit Newspapers, prolong the dispute.

Local unions and individuals may send donations to the GCIU Local 13N/289M Special Assistance Fund, 3300 Book Building, Detroit, Mich. 48226. Individuals only – not local unions – may contribute to The Newspaper Unions Assistance Fund at the same address.