For all of the pieces written about new media developments, no one predicted the successful union organizing blitzkrieg of digital newsrooms that has taken place since 2015. Two unions, the Writers Guild of America-East (WG-E) and the NewsGuild-CWA (NewsGuild) have been orchestrating separate campaigns to organize staffers within digital newsrooms.
The NewsGuild (previously The Newspaper Guild), a union well known to Inland members, has long represented various newspaper employees, with editorial employees being the most prominent group. The NewsGuild represents digital employees at the Guardian US, Bloomberg BNA (Law 360), the Daily Beast, The American Prospect, and The New York Times.
The WG-E, a much smaller union, is probably less well-known to newspaper publishers. It has historically represented film and television writers as well as employees of television and radio news. It is loosely affiliated with the Writers Guild-West, which recently reached an “eleventh hour” agreement with the employer association representing film and TV producers.
The WG-E has engaged in a sustained and largely successful campaign to organize digital content providers. The first to be organized was Gawker, which has 100-plus New York City-based editorial employees. Others include the Huffington Post (214 editorial and video staffers); Thrillist (65 editorial employees); MTV News (50 digital editorial staffers); Vice Media (between 70-80 employees); ThinkProgress and The Intercept (approximately 30 employees at each); Salon (26 employees); and a number of others at Fusion and the Gizmodo Media Group. It also won a vote among the 50-plus editorial staffers at Al Jazeera, which subsequently folded its U.S. operations. It is currently organizing and demanding recognition at a number of other digital content operations.
The WG-E has generally focused on sites characterizing themselves as “progressive” and has unquestionably benefited from its targeting. Indeed, at a number of sites, management essentially invited the union in. Recognition has generally been achieved either through card check or via private elections, although there have been a few NLRB elections.
According to published reports, the WG-E either was able to present cards from the vast majority of bargaining unit staffers and/or won elections by overwhelming numbers. While a few employers did oppose the union, their campaigns appear to have made no material dent in the WG-E’s support.
A number of issues have fueled these organizing efforts. Unsurprisingly, compensation has consistently been identified as an issue. Other issues that have surfaced include “wanting to have a voice” and “editorial freedom and independence.” Anecdotal evidence suggests in some news operations that adhering to a progressive point of view has also been a significant issue among staffers, particularly among millennials.
Winning an election, of course, is one thing; negotiating a first contract is another. In the wake of its successes, however, the WG-E has concluded a number of agreements. Because the agreements are not public records—only the Gawker agreement is easily accessed online—assessing their provisions as reported on various sites is not without certain risks. Having said this, various sites have reported contracts providing for annual increases coupled with increases in minimum pay and, in at least one case, ThinkProgress, a sharing of ad revenue.
Other provisions in various WG-E contracts include prohibitions on the assignment of the on-line equivalent of advertorials to news staffer; provisions defining certain rights for freelancers; language protecting employees’ right to work for competitors; and provisions addressing “editorial independence.” With respect to “editorial independence,” the Gawker contract provides:
Decisions about editorial content (e.g., whether to post a story or the story’s contents, headline, or placement) may only be made by editorial, including the Executive Editor. Once a story has been posted it can only be removed by a majority vote of the Executive Editor, the CEO, and the General Counsel, unless required by law. The Company presented its editorial policy to the union during negotiations. The union will be consulted before the editorial policy is changed.
While parties are free to agree to such language, it is doubtful that any news organization is obliged to negotiate over “editorial independence, content, or policy.” See Ampersand Publishing LLC d/b/a Santa Barbara News Press, 357 NLRB No. 51 (2011) (the First Amendment affords a publisher—not a reporter, not a union, or the Government—absolute authority to shape news content).
While there are certain unique or atypical aspects to the WG-E’s success in organizing digital staffers, there are some more universal lessons:
• The confident predictionsof the inevitable decline of unionism in the information-age cannot be taken as verities;
• The conceit that today’s tech-savvy digital content producers, frequently millennials, are impervious to unionization has not proven to be the case;
• The types of campaigns traditionally mounted by employers faced with union organizing may be less effective in 21st century news operations; and
• Employers need to place an even greater emphasis on maintaining positive relations in the workplace, including an environment in which management provides accurate and timely feedback.
In conclusion we would add that although the NewsGuild has characterized the Writer Guild-East as an “ally,” it is hard to believe the NewsGuild is not—at a minimum—discomfited by another union organizing on what the NewsGuild would logically consider “its turf.” The NewsGuild can be expected to redouble its organizing efforts—not merely at digital newsrooms but at traditional “print” operations as well.
Michael Rybicki is a partner in the Chicago office of Seyfarth Shaw LLP,practicing laborand employment law. He has extensive experience in labor contract negotiation and administration, the acquisition, divestiture, and restructuring of unionized properties, and practice before the NLRB. Much of his practice is devoted to representing newspaper and television stations.