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American Arbitration Association
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Providence Newspaper Guild
The Providence Journal Company |
Case 4 11 30051900 Gr: Union security; dues checkoff Award: July 19,2002 |
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Arbitrator: Roberta Golick, Esq. Hearing: May 15, 2002 Appearances: For the Guild The Issue Did the Company violate Article II, Sections 4 and 5 and of Joint Exhibit #1 Memorandum of Agreement No. 8 in its cancellation of dues checkoff and union security? If so, what shall be the remedy? The Contract The Agreement dated "January 1, 1994 through December 31, 1996 as amended and extended January 1, 1997 through December 31, 1999" (Joint Exhibit #1) provides, in pertinent part:1 1The Guild represents two units, News and Advertising, whose separate but identical agreements are bound together in Joint Exhibit #1. At the hearing the parties agreed to refer to the language of the News agreement, with the understanding that the same language appears in the Advertising agreement. 1 Agreement This AGREEMENT, made and entered into this 22nd day of May, 1997, by and between It is agreed that the News Collective Bargaining Agreement dated April 25, 1995, and effective January 1, 1994, through December 31, 1996, is extended in all its terms and conditions, including Side Letters of Agreement, except as provided hereinafter, and this AGREEMENT is made part thereof.
4. (a) Upon an employee's or irregular extra's voluntary written assignment, the Publisher shall deduct from the earnings of such employee or irregular extra any pay to the Guild not later than Friday of each week all Guild membership dues deducted that week. Such membership dues shall be deducted weekly from the employee's or irregular extra's earnings in accordance with a schedule furnished to the Publisher by the Guild. Such schedule may be changed by the Guild at any time. (b) Such assignment and authorization, to be made on a form agreed upon by the Parties, shall remain in effect until revoked by the employee or irregular extra, but shall be irrevocable for a period of one (1) year from the date of the assignment, or until the termination of the collective bargaining agreement, whichever occurs sooner. Written notice of revocation may be made within the thirty (30) day period prior to the annual anniversary date of the signing of the assignment or of the termination of this or succeeding agreements, whichever occurs first, and shall be sent to the Publisher and the Guild by registered mail. Such notice of revocation shall become effective for the week following the calendar week in which the Publisher receives it.
(b) All new employees hired after the date of this Agreement (for this Agreement the effective date shall be the date of Guild ratification, March 7, 1995) and irregular extras shall, as a condition of employment, as soon after their date of hire as 2 Memorandum of Agreement - No. 8 11. Employees transferred from the Color Pre-Press Department shall be excluded from application of the provisions of Article II, Section 5(b). The provisions of Article II, Section 5 in the News and Advertising Agreements shall be continuously in force, to the extent permitted by law, from the date of this Agreement until expiration of the Collective Bargaining Agreement which succeeds the current Collective Bargaining Agreement. Background The facts are relatively straightforward and undisputed. The Providence Journal Company and the Providence Newspaper Guild were parties to a collective bargaining agreement dated January 1, 1994 through December 31, 1996. In March 1996, during the term of that agreement, the parties negotiated a memorandum of understanding, which, at the time, they referred to as the "Pre-publishing Agreement." For purposes of this case, the critical sentence of the March 1996 agreement provided that the provisions of Article II, § 5 of the then-current collective bargaining agreement would remain continuously in force, to the extent permitted by law, until the expiration of the next succeeding collective bargaining agreement. Article II, §5 was the so-called union security provision. 3
Among the Company's proposals was one "that the Current [1994-1996] Collective Bargaining Agreement be continued for a period of one (1) year through and including December 31, 1997, with [certain enumerated] changes." The Company also proposed that "All side letters to the current Agreement to be updated as necessary, continued and attached to the Agreement." Another of its proposals involved a reorganization of the Promotion Department. In that regard, management proposed that "employees transferred [from outside the bargaining unit] to the Promotion Department shall be excluded from application of the provisions of Article II, §5 (b) [union security] of the contract." On December 12, 1996, in response to the Company's proposal to continue the 1994-1996 contract for one year, the Guild proposed a three-year contract extension. The Company agreed to that in its proposal to the Guild of December 19. On December 20, the Guild proposed that it would drop its demand for the so-called "full evergreen" clause cited above and would agree to the Company's proposal to exclude the Promotion Department employees from the union security provision "in exchange for agreement on a contract extension and understanding that this means Section 11 of Pre-Publishing 4 By its terms, Joint Exhibit #1 expired on December 31, 1999. Prior to its expiration, the parties agreed to a one-month extension, to January 31, 2000. There have been no further extensions, and to date there is no agreement on a successor. On February 8,2000, the Company's Human Resources Manager, Thomas McDonough, wrote to Mr. Schick, with a copy to all employees, the following letter:
The Company is ready to meet at any reasonable time with Guild representatives to sign a contract based on our last offer or to consider any significant changes in the Guild's bargaining position which break the impasse in our negotiations. 2 The Company, referring to the transcript of the hearing, observes in its brief, "Although the Guild 5 Positions of the Parties The Guild contends that both the union security provisions and the dues checkoff provisions of the 1994-1999 contract continued in effect beyond the January 31, 2000 expiration date. The parties agreed to a "mini-evergreens' clause in Memorandum ~f Agreement No. 8, which extended union security through the current contractual hiatus and until the termination of a "successor" agreement yet to be negotiated. The Company's repudiation of union security in its February 8, 2000 letter to employees constitutes a willful violation of that agreement. Similarly, the Guild continues, the contract contemplates the post-expiration survival of dues checkoff until revoked by individual employees. The plain terms of Article II, §4 and the dues checkoff authorizations incorporated therein by reference provide for the
For a remedy the Guild seeks an order a) that the Company cease and desist in its refusal to honor the contract's union security and dues checkoff provisions, b) that the Company notify unit employees of their past and ongoing obligations under the union security clause, and c) that the Company pay to the Guild an amount equal to the unremitted checkoff amounts, plus interest. The Company maintains that the successor addressed in Memorandum of Agreement No. 8 is the 1997-1999 contract that the parties signed in May 1997 to succeed the 1994-1996 agreement. Consequently the Company's obligation to maintain the union security provision was extinguished upon the expiration of this most recent agreement on January 31, 2000. The Company has no further legal or contractual duty to administer the union security provision when there is no collective bargaining agreement in place. The Company argues, finally, that even if the Guild were to prevail on its grievance in whole or in part, the Company is not liable for monetary damages. The Company has not prevented the Guild from collecting dues from its members. Moreover, to require the Company to pay damages would result in a windfall for employees who have not paid their dues. Discussion The Company is correct that long-standing federal labor law casts its shadow over the contract dispute at hand. It is well-settled, and there is no need to recite the history, that contract provisions such as union security and dues checkoff do not survive the expiration of a collective bargaining agreement. Absent a clear agreement by the parties to continue such provisions following contract expiration, an employer is under no contractual duty to enforce them. That said, of course, this case turns on whether or not such a clear agreement exists. Union Security Standing alone, Article II, §5 does not help the Guild. On its face it states, in essence, that all existing employees and new hires must become members as a condition of employment and maintain their membership "for the duration of this Agreement." The
Article II, §5 does not stand alone, however. In March 1996 the parties negotiated the now infamous Memorandum of Agreement No. 8 ("MOA 8"), which provides in straightforward terms that:
While the parties do not disagree about the meaning of the language, they have conflicting views about which collective bargaining agreement it applies to. The Company contends that the phrase "current collective bargaining agreement" in MOA 8 refers to the 1994-1996 contract that was in effect when the MOA was drafted, and that the collective bargaining agreement that "succeeded" the 1994-1996 contract was the 1997-1999 contract that just expired. Thus, in the Company's view, it fully complied with the promise of MOA 8 and it had no further obligation to the Guild beyond January 31, 2000. The Guild contends that the "current collective bargaining agreement" referenced in MOA 8 is the 1994-1 996-as-amended-and-extended-through-December-3 1-1999-contract, and though it might be a mouthful, it is one contract, making the successor the as-yet-to-be-settled contract over which the parties have been negotiating for the past two years.
There can be no doubt, in the face of this language, that the 1994-1996 collective bargaining agreement was amended and extended three more years by agreement of the parties. Joint Exhibit #1 is the 1994-1996 contract as amended and extended.3 Contrary to the Company's contentions, Joint #1 is not the "successor" to the 1994-1996 contract. Moreover, MOA 8 is incorporated into Joint Exhibit #1. Without question, it is a Side Letter of Agreement that the parties saw fit to include in their extended contract.4 If the terms of Paragraph 11 had been obsolete, the parties could have excised or changed the language. As written, however, the language plainly speaks of the current collective bargaining agreement, and can refer to nothing other than the "current" collective bargaining agreement, which, at the time the MOA was incorporated into the contract, was the 1994-1996 as amended and extended through 1999 agreement. 3 Note, for instance, that even in Article II, §5 the parties wrote, "for this Agreement the effective date shall be the date of Guild ratification, March 7, 1995." 10 Joint Exhibit #1 is clear and unambiguous, and needs no clarification from extrinsic 11
This bargaining history, though unnecessary in the face of the clear contract, demonstrates not only that the language of the agreement means just what it says, but also that both parties understood exactly what they were agreeing to. Accordingly, the Company's unilateral cancellation of Article II, §5 in February 2000 violated the parties' agreement that the union security provision would continue in force until the expiration of the next succeeding contract. Dues Checkoff The Guild does not have the benefit of the "mini evergreen" clause to support its position with respect to dues checkoff. MOA 8 is explicit with respect to the continuation of Article II, §5, union security, but expresses no similar sentiment with respect to Article II, §4, dues deduction. The only question, then, is whether there is something in the language of Article II, §4 or the negotiated assignment and authorization form that would require the Company to deduct dues on the Guild's behalf following the January 31, 2000 12 While the language under consideration does contemplate the post-expiration survival of employees' authorizations, it does not speak to the survival of the Company's obligation to be the banker. A signed assignment and authorization form provides on-going permission (unless revoked) for the Company to deduct union dues from the employee's wages and remit them to the Guild; the mandate that the Company do so, however (i.e. "the Publisher shall deduct from the earnings of the employees...") is enforceable only so long as there is a collective bargaining agreement in force. That the Company was willing to continue the role during contract lapses in the past did not create a binding practice for future contract hiatuses. The Guild's attempts to interpret its way towards a contractual obligation are unavailing. True, the two paragraphs of Article II, §4 must be read as a whole, and true, language should be interpreted to give effect to all provisions, and true, too, "expressio unius est exclusio alterius, "but there is not an interpretive tool that will create a promise where none exists. The language is simply not susceptible to the construction that the Guild urges. Thus, the Company's contractual duty to deduct dues from the earnings of employees who signed written assignments and authorizations terminated with the expiration of the contract. 13 Remedy We are left, then, with the fact that though the Company did not violate Joint Exhibit #1 when it wrote to employees in February 2000 that "dues checkoff [is] no longer in effect as of this date," it did violate Joint Exhibit #1 by informing them that "the union security provisions.. .are no longer in effect as of this date," and that "all Guild bargaining unit members are free to join or not join the Guild, to pay dues or not" and that "no one is now required to pay dues as a condition of employment." These statements are contractually inaccurate. Simply put, employees are required to become members of the Guild and maintain their membership as a condition of employment. To the extent that any employee stopped paying dues to the Guild following management's erroneous announcement, the Company caused injury to the Guild, and that must be remedied. First, the Company must correct the misinformation that employees had no ongoing financial obligation to the Guild after February 1, 2000. The Guild's request that this be accomplished by letter to all Guild-represented employees and by unit-wide posting on the website is reasonable. The announcement must acknowledge the error and provide corrected information, including the fact that employees are responsible to pay their dues directly to the Guild during the contractual hiatus. 14 Finally, the Guild requests an order that the Company be barred from seeking reimbursement for unpaid dues from affected employees. It contends that the Company, as wrongdoer, must alone bear the financial burden created by its actions. The question of reimbursement from individual employees is not properly before me in this arbitration forum. The remedy for the Company's contract breach is that it make the Guild whole for its losses. The Company's right to thereafter recoup unpaid dues payments from individual members is beyond the scope of this contract dispute.
The Company violated Article II, §5 of Joint Exhibit #1 and Memorandum of Agreement No. 8 in its cancellation of union security. As described in detail in this decision, the Company is directed to correct its misinformation by sending letters to individual employees and by posting corrected information on the website. The Company is further directed to make the Guild whole for demonstrable losses in dues payments from February 2000 until compliance with the notification order is satisfied. Interest will accrue at the statutory rate on unpaid amounts beginning thirty days after the Guild provides an accounting to the Company of dues monies outstanding. The Company did not violate Article II, §4 in its cancellation of dues checkoff.
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