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labor NY Times Lawyers Accidentally Send Private Strategy Memo to Staff Union OOPS!

While locked in a contentious battle over tech staffers unionizing, Times management’s counsel mistakenly sent its game plan to the union.

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, NewsGuild of New York

The New York Times is engaged in a contentious back and forth with several hundred of the paper’s technology and product staffers who announced a unionization drive earlier this year. So it was likely a bit embarrassing when the law firm representing the paper’s management accidentally sent a private strategy memo to representatives for the newly unionized staff.

Last Thursday, Michael Lebowich, a partner at the firm Proskauer Rose, sent an email to several of his colleagues at the firm and New York Times senior VP and deputy general counsel Andrew Gutterman, who represents the paper in discussions with its various staff unions. The email, titled “Tech Organizing Unit Scope Decision Options,” laid out options for how the paper could respond to recent efforts by tech and product staffers to form a union.

What Lebowich almost certainly did not realize is that he had also cc’d Rachel Sanders, an organizer for the New York chapter of the NewsGuild, which represents staffers at news organizations including the New Yorker, Reuters, The Daily Beast, and now the Times tech workers.

In April, a group of software engineers, designers, and data analysts announced to Times management that they had majority support to form a union among what the group said was 650 tech staffers eligible to be included. 

The paper rejected the union’s request to be voluntarily recognized, opting instead to hold a vote among prospective members conducted by the National Labor Relations Board. Since then, the two sides have been locked in tense negotiations over who should be allowed in the union and entitled to vote on its ratification or rejection.

The errantly emailed slideshow laid out the options for the Times as management strategized how to limit the scope of the union.

In one slide, titled “Operating Principles,” the lawyers discussed management’s potential goals, including ensuring supervisors are not involved in the union, seeking the “smallest bargaining unit that is justifiable,” or seeking “the bargaining unit where we are most likely to win an election” that would effectively defeat the unionization effort.

The firm laid out three potential paths for the paper: allowing a large, medium, or small union size. Each came with their own considerations. The Times’ outside lawyers reasoned the paper would have its highest chance of winning an election outright against the union if the paper agreed to potentially allow more staff into the unit. But the law firm also suggested that a larger unit would prevent the paper from attracting and retaining talent. A smaller unit, the legal team argued, would likely win the NLRB election, but would be much more limited in scope, resulting in a union nearly half the size.

The paper opted for what the firm labeled the most “aggressive” option, which would keep the union to under 400 members.

Angela Guo, an organizing member of the union, said the Times’ decision to pursue that strategy, even if it meant losing the NLRB election, was illuminative. While under no illusion about the paper’s stance toward the union, she told The Daily Beast that the slideshow demonstrated how the paper was not holding an election to ensure all voices were represented, but rather to make the union as weak as possible.

“That is not a neutral stance, that is not indicative of wanting a free and fair election in which everyone's voices are heard,” she said. “This is just additional proof they are being disingenuous with their intentions.”

“The document that the Guild is referring to lists a range of options the Company has and considerations for each choice. (As you note, it was accidentally sent to a union official last week as the legal team prepared to review these options with leadership.)” a Times spokesperson wrote in a statement to The Daily Beast. “We have continued to assess our position, and today, as part of the NLRB process, we submitted a legal filing in response to the Guild’s petition that outlines which groups we think should be organized together in the same unit, as well as who we think is and is not eligible for the unit. Our view is that each of our functions has vastly different responsibilities, performs different work, and has separate supervision. This does not preclude employees from forming other units.”

Staffers who saw the presentation deck were also frustrated by the final slide analyzing the “general sentiment” toward the union among its members.

The outside firm put together charts estimating support among potential union staffers, concluding that the union had majority support among possible members. But staffers said the chart was a further demonstration of why they filed complaints with the NLRB over what they alleged to be surveillance conducted by some managers to gauge support for the union—a violation of labor laws prohibiting such polling, members said. On Wednesday, several hundred tech workers at the Times held a half-day work stoppage to protest the paper’s refusal to voluntarily recognize the union, and to raise awareness about the NLRB complaints.

At the company's all-company virtual meeting on Thursday, Times CEO Meredith Kopit Levien criticized the union for walking out, and reiterated that while there were many staffers who supported the union, the company said there were also many who did not.

“We were a little disappointed in the union’s decision to resort to a strike yesterday,” she said. That’s a highly unusual tactic just as the NLRB process is getting underway.”

The tech worker union would be among many groups of unionized employees at the Times. The paper’s editorial staff have been unionized for decades, while staff at the consumer product site Wirecutter formed a union several years ago. According to Poynter, if the tech union is recognized, it will be the largest union representing tech workers in the country.

The unionization effort also comes as there has been some internal friction among unionized editorial staffers. In recent months, some of the paper’s high-profile reporters have vocally denounced a proposal to increase dues, and sought the counsel of New York labor lawyer Arthur Schwartz to explore options to push back against it.