A law firm in the trenches against media unions

Jones Day's Washington, DC office.

In May, the law firm Jones Day hosted a conference in its Manhattan office focused on labor and employment law in the news media industry. It was an invitation-only affair, bringing together Jones Day attorneys and media executives, in-house lawyers, and senior human resources personnel—in other words, anyone who might find themselves on the opposite side of a bargaining table from journalists trying to unionize.

The agenda for the event has the air of a support group, or a military planning session—like-minded protagonists defending against the hordes, or preparing to attack. In breakout sessions, attendees discussed “the major unions seeking to organize media businesses today”; “practical considerations for employers faced with complaints of harassment”; and “approaches for reducing costs and minimizing liabilities” pertaining to employee benefits and pension plans.

Attendance was good: media outlets in the room included The New York Times, The Washington Post, Slate, Univision, and Atlantic Media, among others (some of whom are represented by Jones Day). One of the moderators leading the conference was Patricia Dunn, a longtime partner in Jones Day’s Washington, DC office, and a former in-house counsel for the Post.

The law firm, with Dunn often at the helm, has in recent years become a go-to for media executives facing union drives. At a time when uncertain market forces have driven more and more newsrooms to organize, Jones Day has become notorious for aggressive anti-union tactics that journalists and union leaders say have helped downgrade media union contracts and carve employee benefits to the bone. Jones Day’s portfolio of media outlets includes, among many others, Slate, whose union members voted Tuesday to authorize a strike amid pushback from management on their demands.

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“Negotiations where Jones Day is at the table are uglier than anything else we see,” says Robert Struckman, president of the Washington-Baltimore News Guild, under which multiple publications are organized, including the Post. “Negotiations are always hard, but they’re not always ugly. Jones Day makes the process ugly.”

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With more than 2,500 lawyers on staff, offices in 18 US cities, and 25 more offices internationally, Jones Day is one of the largest law firms in the world. Of late, the firm has raised eyebrows in legal circles for its outsized ties with the Trump administration; Jones Day received nearly $2 million in fees from the Trump campaign in the first three quarters of 2018, and there appears to be a large revolving door between the firm and the White House—unusual, relative to other administrations, a former solicitor general under George W. Bush told Bloomberg.

Jones Day’s reputation rankled Slate staffers, when management retained the firm’s counsel after their vote to unionize under the Writers Guild of America, East earlier this year—as did hardline stances taken by the Jones Day attorneys at the bargaining table.

The road to organization at Slate has been rocky since the beginning. Site management and the parent company, Graham Holdings (former owners of the Post), initially declined to recognize a union when employees first signed cards in March 2017—resistance which took some at Slate off-guard, given the site’s reliably liberal slant. After much back-and-forth, staffers finally voted to unionize this January under the Writers Guild of America, East. They were surprised again when contract negotiations began in April and Jones Day lawyers told the bargaining committee that a closed shop union security agreement was a “non-starter.”

Closed shop unions, which pro-labor groups support, automatically enroll non-management employees and require that they pay dues to the union. That’s as opposed to open shop unions, in which membership is optional, but the union is nevertheless compelled to provide services to non-union employees. Labor groups deride open shops—the desired outcome of conservative “right-to-work” policies—for draining union finances, hobbling their effectiveness, and sowing discord between union and non-union members, who are often accused of “freeriding.”

An open shop union would make Slate unique among media unions represented by the Writers Guild of America, East; according to Guild spokesperson Jason Gordon, Gizmodo Media Group, HuffPost, Vice Media, and others all have closed shops. None are represented by Jones Day. Foreign Policy, which like Slate is owned by Graham Holdings but whose employees unionized under the Washington-Baltimore News Guild, lost its battle for a closed shop. Management there is represented by Jones Day.

“It’s appalling that management has not only taken this position but hired a notorious union-busting law firm to enforce it in the face of opposition from every single person on staff,” says Mark Joseph Stern, a legal writer for Slate and member of the union bargaining committee. Particularly galling, he adds, is the fact that editorial content at Slate is categorically opposed to right-to-work laws. (In a piece early this year, for example, Stern and a colleague, Sean McElwee, called the logic underpinning right-to-work “laughably spurious.” In 2015, Slate’s chief political correspondent, Jamelle Bouie, described the thinking behind a national “right-to-work” proposal “unfounded.”) “Slate’s legal coverage has a clear, consistent viewpoint with regard to unions and union security,” Stern says.

Slate management has not budged as the bargaining process has worn on in recent months. But the Slate Union also intends to hold the line, particularly on the crucial issue of right-to-work. Sources at Slate tell CJR they were warned: Don’t let happen here what happened at The Washington Post.

 

The Post first unionized in the 1930s. Union members lost their closed shop following a series of union-led strikes in the mid-1970s, which failed against aggressive union-busting by then-Publisher Katharine Graham. The strength of the union never fully recovered, according to Fredrick Kunkle, an 18-year Post reporter and co-chair of the Post Guild bargaining committee. “Having an open shop is like having a slowly tightening rope around the union’s neck,” Kunkle says. “You never get it off, and you can never breathe free.”

Today, Kunkle says, only about 45 percent of Post employees are union members. Ironically, he adds, new hires often decline to join the union because they perceive it as weak. In recent years, Post staffers have seen cuts in retirement benefits. The paper’s pay and family leave policies have also lagged significantly behind those of its main competitor, The New York Times, which has a closed shop union and is represented by the law firm Proskauer Rose, according to an internal Post Guild memo obtained by CJR, dated June 2018. The Post, for example, has refused to increase family leave from four weeks, the memo notes, whereas the Times offers 16 weeks of paid maternity leave. (The Post did not respond to a request for comment.)

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Jones Day has represented the Post for decades, though Kunkle says it can be difficult to tease apart the bargaining tactics of Jones Day from those of the company’s in-house counsel. No surprise, perhaps: according to her company profile, Dunn practiced at Jones Day for 14 years before joining the Post as in-house counsel in 1997. When she departed in 2008, she was replaced in her position by Jay Kennedy, who also came to the paper from Jones Day. Today, Kunkle says, Dunn and Kennedy work side-by-side during union contract negotiations, as outside and in-house counsel respectively.

Kunkle, who has served in union leadership at the Post since 2008, says he has noticed a discernibly harsher management stance since 2013, when the paper was acquired by Jeff Bezos, who is also no friend to unions. But some bargaining table tactics are clear tells of Jones Day’s enduring influence. In the most recent contract negotiation, for example, which concluded in July, the Post Guild bargaining committee was presented at the outset with a choice: agree quickly to an undesirable contract wherein the harshest stipulations have been removed, or refuse and begin negotiations against an even less desirable contract wherein those harshest stipulations are included. In other words: negotiate at your own peril. It was a strategy that Kunkle had never seen before something that Jones Day had employed earlier at Bloomberg BNA, a Bloomberg L.P. subsidiary that offers a variety of products and journalism oriented towards business professionals. (Bloomberg BNA’s union, like the Post’s, is represented by the Washington-Baltimore News Guild. Struckman, the guild’s president, says he is also unfamiliar with other law firms using this tactic.)

Post union members chose to negotiate, but over 14 months of testy negotiations they won few victories. “The Post is a great example of what’s happening in a lot of the media world right now,” Kunkle says. “Yes, the industry has gone through flux. But even as media organizations are hitting their stride, the life you can lead as a journalist is much less.”

 

To Struckman, who was a journalist himself for 12 years before moving on to union work in 2010, Jones Day is a central actor behind an unfortunate trend in the media industry in which companies are emulating one another in devaluing their journalists. “This is a fad,” he explains. “It’s a dumb one, it’s a destructive one, and it’s serving journalism badly.” As a result, he says, at many companies pay structures remain largely unequal, benefits are on the decline, and the hope for a liveable retirement is becoming a thing of the past.

Jones Day’s approach often goes beyond serving the pragmatic needs of client companies, he adds, to the point that it seems ideologically anti-union. With each new contract negotiation, the firm’s lawyers seem to be pushing the ball forward for their own sake, he says. If a specific stipulation brings benefits to a new low at one company, it is likely that Jones Day lawyers will portray them in subsequent negotiations with other companies as the new industry standard.

This was the case in 2017 at National Public Radio, when contract negotiations became so contentious that workers nearly went out on strike. According to Sonari Glinton, who at the time served in union leadership at NPR, the negotiations echoed a bargaining process at Chicago Public Media—owner of WBEZ and producer of the popular shows This American Life and Wait Wait…Don’t Tell Me!—that left journalists in tears. “The minute we saw who the lawyers were, we knew, ‘Oh, this is real,’” Glinton says.

Dunn was among the outside counsel present in both negotiations. According to a Jones Day release, the contract she helped negotiate at Chicago Public Media assured the company, among other things, “the right to change insurance plans without bargaining” and to implement merit-based pay. Chicago Public Media is an NPR affiliate, but the companies do not share management structures. Nevertheless, parts of the contract NPR union members were presented by management were word-for-word and comma-for-comma the same as WBEZ’s contract, Glinton says. The contract included an elimination of overtime, a requirement that employees use vacation time to conduct union business, and an overall decline in benefits. “It was such a gut punch,” says Glinton, who after over a decade of employment with NPR left this summer to produce podcasts independently—a decision that was informed in part by the tenor of those negotiations. “It was a really raw time. A lot of people, especially some veteran employees, felt wounded.”

All of this belies traditional federal labor policy, Struckman says, which is rooted in the idea that it’s healthy for workers to negotiate with employers over the terms and conditions of employment. “It seems to me that Jones Day pushes employers toward negotiations which are ‘good faith’ in name only,” he explains. This should be a wake-up call to journalists interested in upholding the standards of their profession, he adds, because in the long-run this may have the effect of turning journalism from a career profession to a “junk job,” something that is too meager by way of pay and benefits to remain competitive or sustainable for workers.

Others, however, suggest it is simply the nature of white-shoe law firms to drive as hard of a bargain as they can; in this view, Jones Day and lawyers like Dunn are simply taking advantage of their clients’ leverage, at a time when American labor happens to be very weak.

Only 10.7 percent of all wage and salary workers nationwide belonged to a union in 2017, a near all-time low, according to the Pew Research Center. Public sector unions have fared somewhat better, but this is unlikely to last after the Supreme Court ruled mandatory dues collection in public sector unions unconstitutional this summer. (Jones Day notably filed an amicus brief in Janus v. American Federation of State, County and Municipal Employees that ultimately proved onside with the court’s decision.) Things are likely to get worse for private sector unions, as well, with right-to-work laws being implemented in more and more states, even those with historically strong labor traditions, says Steven Greenhouse, a former labor reporter for the Times and author of the upcoming Beaten Down, Worked Up: The Past, Present, and Future of American Labor.

Law firms like Jones Day might be known for playing rough with unions, but Greenhouse says it is a mistake to characterize them as unilateral antagonists; media companies, he says, have just as much responsibility for the state of unions in journalism. “The client is supposed to call the shots in negotiations,” Greenhouse says. “If the client chooses to hire a hardball law firm, it’s still the client who is to blame for what happens.”

 

On a Friday in November, Slate Union members staged a lunchtime walk-out to signal their continued displeasure with management over the issues of union security and demands which had gone unheeded thus far, including fair pay and newsroom diversity initiatives. “We feel these asks are essential to the wellbeing of our workplace,” the union posted in a series of messages on Twitter. For one hour, employees left their desks and refused to respond to messages on Slack, the site’s primary means of work-related communication. For the Brooklyn office, the Writers Guild of America, East ordered pizzas. In DC, Slate employees gathered in a conference room, with employees who work from home teleconferencing in. It was an admittedly small gesture, staffers say, but one they hoped would get  management’s attention.

In a follow-on round of negotiations, however, management was not swayed. This led the union to authorize a strike, should future rounds also fail to yield results. “Our unit continues to be outraged by management’s inclusion of a right-to-work clause, a technique designed to degrade the legitimacy of our union,” the group posted on Twitter. It would be the first incidence of a full-on strike among the many digital newsrooms which have unionized in recent years, according to a Writers Guild of America, East spokesperson. But this is not an ideological stand by Slate staffers, says Susan Matthews, a science editor and member of the bargaining committee; a functioning union is essential to workplace stability and nothing to compromise on in an industry in which journalists too often shoulder the burden of economic change.

“The bargaining committee and our unit continue to believe we can come to an agreement both parties will be happy with, and we look forward to doing that at the table,” Matthews says, adding of management: “I think they’ve realized we’re serious now.”

Slate management and editorial leaders declined requests for outreach from CJR, and the Jones Day attorney representing Slate as outside counsel did not respond to multiple inquiries. The Jones Day offices in New York, Washington, DC, and Cleveland (the firm’s international headquarters) also did not respond to outreach from CJR.

Such contentious negotiations shouldn’t be necessary, in Struckman’s view. Journalists understand the media industry is in a state of flux, and would understand the need for prudent business decisions. “At the end of the day, we want to see journalism organizations thrive,” he says. But crucial to organizations’ success is quality journalism, which can only be done by journalists secure in their profession. Hiring “needlessly punitive” and harsh firms like Jones Day undermines this mutually supportive relationship, Struckman says: “I don’t believe it serves the interest of a media company to deprive its employees of fair pay, benefits, and a secure retirement. It might yield a few bucks in the short term, but it downgrades the professionalism that undergirds the company’s core value.”

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Andrew McCormick is an independent journalist and former CJR Delacorte Fellow. His work has appeared in The New York Times, The Atlantic, the South China Morning Post, and more. Follow him on Twitter @AndrewMcCormck.