A panel of three Third Circuit Court of Appeals judges on Wednesday afternoon heard oral arguments about the National Labor Relations Board’s petition for an injunction that would end the Newspaper Guild of Pittsburgh’s strike at the Pittsburgh Post-Gazette.
The journalists have been on strike since Oct. 18, 2022, on unfair labor practice charges including that the company has bargained in bad faith on a new contract. The National Labor Relations Board in Washington, D.C., this past September affirmed an administrative law judge’s ruling in favor of the strikers, but the company appealed.
The board having affirmed the ruling meant that the company’s appeal went to the Third Circuit Court of Appeals in Philadelphia. In the meantime, to prevent irreparable harm, the NLRB petitioned that court to issue a temporary injunction that would compel the company to take the strikers back to work under the terms of their last contract, which expired in 2017; drop the conditions it imposed in declaring an impasse in bargaining in 2020, and put them back on their former health care plan from which it unilaterally removed them; and get back to bargaining a new contract.
This post-board ruling request for a 10(e) injunction is like a temporary restraining order and “doesn’t happen every day,” Judge Peter J. Phipps said near the beginning of the 1:30 p.m. hearing in a very crowded courtroom of the Joseph F. Weis Jr. U.S. Courthouse, Downtown. Both the NLRB lawyer and the company’s lawyer each were to have just 15 minutes to present their oral arguments before Phipps, Judge Cindy K. Chung and Judge D. Brooks Smith.
The crux of NLRB attorney David Seid’s argument was that without an injunction, the journalists’ union, down 70% in members to 27 strikers, is in danger of dying, and in fact, because the company hasn’t budged from its imposed conditions, it has no bargaining power.
Smith asked if that means “it is effectively dead,” to which Seid answered yes, unless an injunction puts the two sides back on equal footing. Under questioning from Smith, Seid agreed what’s also at risk of irreparable harm is the NLRB itself, because if the union goes away and the agency’s rulings aren’t enforced, the board’s authority is rendered meaningless.
Arguing for the PG, attorney Brian Hentosz said the union doesn’t seem that dangerously diminished, citing the fact that it publishes this digital strike paper and seemed to have a lot of supporters present in the courtroom. He said that restoring the status quo would give the union the upper hand in leverage during bargaining, which he said the union offered to do only once over the past two years. “We’ve always been ready and willing to bargain.”
Putting the journalists back on their former health care plan would be “chaos,” he said, and the company didn’t know if that plan still existed or would take the union back. Under questioning from Judge Chung about the specifics of how costly that would be to the company, Hentosz said he didn’t know and that it should be up to the union to report that. He also told the judges he didn’t see any danger of irreparable harm to the NLRB.
All three judges asked both sides probing questions about everything from small specifics (Had a 10(j) injunction been sought for the Guild before the board ruling? Yes.) to strategy to the key issue of whether the journalists’ overall case is likely to succeed on merit. The NLRB is to file its brief in the company’s appeal by March 17.
Around 2:20 p.m., Phipps, who’d given both sides more than their allotted times, announced, “We’ll take this matter under advisement” and the judges left the courtroom.
The striking journalists’ busy Wednesday began at 11 a.m., as several of them and their supporters visited the Post-Gazette’s North Shore newsroom and offices to deliver pledges and letters from community members. About 800 people signed the online pledge, titled “Post-Gazette strikers’ fight is my fight. The PG only gets ME back when strikers win.”
“The Post-Gazette deserves your support if — and only if — the company acts in good faith with its unions,” the petition reads in part. “That’s why we’re asking you to urge the Post-Gazette to live up to its responsibilities to its employees and possibly start to earn back the public’s trust.”
Signers pledge to resume subscribing and reading the PG if the strikers win, and to speak out against any retaliation against workers, management delay tactics or bad faith negotiating.
Signers also demand that the PG “start rebuilding a paper that the community can trust,” featuring “dedicated local coverage that holds those in power accountable and to build connections in our neighborhoods” and “respect for workers’ community expertise and values in the editorial decision-making process.”
Striking photojournalist Steve Mellon spoke about holding the company to account in those ways at a rally attended by about 80 people, in between some songs led by the Pittsburgh Labor Choir.
“What happens in places like the Post-Gazette matters,” Mellon said. “Employers are becoming emboldened. They see powerful and wealthy men ripping through contracts, stripping away health care, firing workers by the thousands without regard to the damage these firings do to the workers, to their families, to the agencies or businesses that employ them.
“Other employers are watching and waiting to see how we react,” Mellon said.
“Will workers go away quietly?”
“NO!” answered the crowd.
Things got a little tense for some when striker Natalie Duleba approached the Post-Gazette’s entrance so she could tape the supporters’ signatures and letters to the door. Two security guards stepped out to keep her from entering, and one ducked back inside to call the police as several strikers and supporters squeezed into the gated and fenced area at the entrance. People began a loud chant of “Get out the way, scabs!”
But Duleba, who never intended to try to go inside, was able to tape the papers to the door, and by the time a half dozen Pittsburgh police officers and a supervisor rolled up, the group was mostly back on the sidewalk and street and singing songs. The rally broke up around 11:40 a.m., with one supporter leading a defiant chant of “We’ll be back!”
U.S. District Judge Cathy Bissoon on Feb. 13 denied the NLRB’s petition for injunctive relief for three news production unions also on strike at the PG. Workers from the typographical (advertising), mailers and pressmen’s union have been on strike over a dispute over health care coverage since Oct. 6, 2022. Their case hadn’t yet made it to the board in Washington, and so the regional NLRB had sought what’s called a 10(j) injunction.
This is the longest ongoing strike in the country.
Bob, a feature writer and editor at the Pittsburgh Post-Gazette, is currently on strike and serving as interim editor of the Pittsburgh Union Progress. Contact him at bbatz@unionprogress.com.
