Did The Washington Post Break A Law When It Disciplined A Reporter Over A Jeff Bezos Op-Ed?

The Post's union thinks so.

The union that represents Washington Post reporters has filed an unfair labor practice charge against the Post for disciplining a reporter and union leader who wrote an op-ed critical of Post owner and Amazon CEO Jeff Bezos.

The Post issued a formal warning against Metro desk staff writer and union co-chair Fredrick Kunkle on Sep. 5 for publishing the sharply worded op-ed in HuffPost. “One of the wealthiest men in the world is thinking of ways to give back,” Kunkle began the column, which appeared Sept. 1. “But he’s still taking from the very people who helped him build his fortune.” He went on to detail Bezos’ efforts to knuckle the newspaper’s union over workers’ rights and benefits.

The Post stated in its disciplinary letter to Kunkle that he had engaged in an “egregious violation of the Post’s ethics policy on freelancing,” and noted that a senior manager had warned him as much a day before he did it.

In response to the Post’s warning, the Washington-Baltimore News Guild, which represents the paper’s editorial staff, filed on Tuesday what is known as an unfair labor practice charge with the National Labor Relations Board, accusing the Post of violating Kunkle’s legally protected right to engage in “concerted activities” to further the union’s interests. The National Labor Relations Act bars employers from interfering in worker activities that advance their welfare, which typically include a worker’s right to publicly criticize an employer about a work-related matter.

“If you’re a Guild officer and Freddy is, he has a legal right to publicize a dispute with management,” said Rick Ehrmann, the Guild representative for the Post newsroom. “It doesn’t matter what the outlet is.”

Legal experts say the union has a decent argument to make before the National Labor Relations Board. But the company’s freelancing rules mean it is not a slam dunk.

As a matter of company policy, Post reporters are not permitted to write for another outlet unless a department head has approved its publication outside the company. Department heads permit outside publication only if the Post has declined to run the story and the outside outlet in question is not deemed a competitor.

What’s more, the union effectively ratified this arrangement with language in the collective bargaining agreement. The union contract states that “without permission of the Post, no employee shall … use any material or featured title of The Post or exploit in any way his or her connection with it.”

“I didn’t do it lightly, but I just really believe in a person’s right to speak to out.”

- Fredrick Kunkle, Washington Post metro desk

Kunkle, who writes the Post’s “Tripping” blog about transportation in the Washington, D.C. area, pitched the Post’s opinion section at the end of August on an op-ed challenging Bezos’ rollback of employee retirement benefits and planned overhaul of the company’s severance policy, according to his account of events.

When the newspaper rejected it, in his telling, Kunkle decided to publish it at HuffPost, informing Washington Post Editor-in-Chief Marty Baron of his plans. (In the interest of full disclosure, I am a member of the labor-management committee at HuffPost, which is represented by the Writer’s Guild of America, East.)

Tracy Grant, the Post’s deputy managing editor, met with Kunkle at length on Aug. 31 and told him that publishing the op-ed would violate company policy and be grounds for disciplinary action.

Kunkle decided to proceed any way.

“I had not really dug into it further, but I did feel it was protected speech under the [National Labor Relations Act],” he said. “I didn’t do it lightly but I just really believe in a person’s right to speak out. That’s one of the beautiful things about this country.”

For the submission, HuffPost offered him a $300 fee, which he has yet to receive. In an interview, though, Kunkle said he would have published the column free of charge.

Kunkle’s op-ed addressed specific grievances the Washington-Baltimore News Guild has with Bezos’ management, while making a larger point about the way contemporary billionaires use charity to mask the effects of their labor practices. Kunkle took Bezos to task for freezing employees’ pension plan two years ago. He went on to decry Bezos’ current plans to end the prioritization of seniority in layoffs, reduce employee severance pay and make severance dependent on signing away the right to sue.

Bezos is guilty of “petty theft from the people who work for him,” Kunkle concluded the column. “He owes them better.”

Washington Post owner Jeff Bezos, right, speaks during a meeting with President Donald Trump on June 19, 2017, alongside Microsoft CEO Satya Nadella, center.
Washington Post owner Jeff Bezos, right, speaks during a meeting with President Donald Trump on June 19, 2017, alongside Microsoft CEO Satya Nadella, center.
Carlos Barria / Reuters

Four days later, Grant sent Kunkle a memorandum issuing a “written warning for [his] willful and intentional violation of The Washington Post’s standards and ethics policy by freelancing for a competing publication without permission.”

“Any similar or repeated infractions will result in increased disciplinary action, up to and including the termination of your employment,” Grant ended the letter.

Kunkle and the Washington-Baltimore News Guild argue that a union leader using an opinion column to call out management in a labor dispute is simply not subject to the freelancing clause because of its protected legal status.

“Had I decided to write something on hunting and the Post said, ‘No, we don’t have a place for it,’ I’m not going to take it to the New York Times,” said Kunkle, who is an avid hunter. “It’s not like I have a right to take it to a competitor.”

The amorphous nature of what constitutes a media competitor allows the newspaper to effectively intrude on protected labor rights, Kunkle added.

Given the Post’s entry into myriad non-traditional media, including podcasts, “almost everything is our competitor today,” he said.

The Post declined to comment on the unfair labor practice complaint.

The Guild is “probably” right that the op-ed is protected speech, according to Charlotte Garden, a labor law professor at Seattle University School of Law.

“As a union leader, Kunkle was at least implicitly speaking for other employees about a workplace dispute,” Garden said. “Employees can lose [National Labor Relations Act] protection under certain circumstances ― notably when their criticism of their employer rises to the level of ‘disloyalty,’” which is true only in very specific cases regarding criticism of company products, Garden said.

The wrinkle for Kunkle, Garden said, is that the company has grounds to argue that the union waived his right to engage in this type of concerted activity by agreeing to the freelance clause. The Guild would have to demonstrate to the NLRB that there is a history of interpreting the Post’s freelance clause to exclude protected concerted activity, according to Garden.

Michael Duff, a labor law professor at the University of Wyoming College of Law, argued that while he considers the op-ed “concerted activity,” the matter is “not free from doubt,” and the Post has room to argue that he was writing in an individual capacity, not on behalf of the unionized workers. The fact that Kunkle is receiving payment for the op-ed from HuffPost undermines his case that it was legally protected concerted activity rather than a freelance piece that merely violated company rules, Duff said.

“As a union leader, Kunkle was at least implicitly speaking for other employees about a workplace dispute.”

- Charlotte Garden, a labor law professor at Seattle University School of Law.

Duff nonetheless believes the company policy “probably” violated labor law to begin with because the rule is “sufficiently vague to chill all kinds of concerted employee speech touching on terms and conditions of employment.” If the NLRB found that the rule had such a chilling effect, the company would have to prove that there is an overriding business justification for the provision, he said.

For Kunkle, the Guild and future employees concerned about their right to publicly challenge their employers, a lot depends on what happens next.

Staff at the regional NLRB office for the Washington, D.C., area will assess whether the office wants to pursue the charge and recommend a hearing before one of the agency’s administrative law judges. If the judge finds merit in the charge, the judge can recommend it to the board.

Ordinary cases are heard by a three-person panel of the board. Cases with broader implications are decided by the full board, which includes five people when fully seated. President Donald Trump has filled one of the board’s open seats; as it stands the board has two Democratic-appointed members and two Republican appointees. By the time Kunkle’s charge reached the board, Trump likely would have appointed the last board member, giving Republican appointees a 3-2 majority on the board.

If a majority-Republican board hears the charge, it will likely rule in favor of the Post, according to Duff, who was previously a field attorney for the NLRB. In any event, the losing party can then appeal the NLRB decision to the regional circuit court and then to the United States Supreme Court, if it so chooses.

In the meantime, the Post’s warning is a source of anxiety for Kunkle, who worries that management could use it as part of a future case to oust him from the company based on his performance. When Kunkle wrote the op-ed, he had no intention of making himself the center of the story, he said.

“I did not want any of this sideshow about it,” he said. “I just wanted to get this argument into the world.” He added the Post’s decision to send him the warning letter buttressed the argument in his op-ed that Bezos is part of a financial elite whose companies are sapping workers of their power and share of the wealth they help generate.

He told Grant as much in an email about the disciplinary measure: “I said, ‘In a way it helps prove the point.’”

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