Journal denies retaliation
In first day of NLRB trial, company explains
its position, Schick testifies
PROVIDENCE -- Journal lawyer Lincoln D. Almond told a federal judge yesterday that the company was not retaliating against Karen Ziner when it assigned the veteran reporter to "night cops."
Instead, he said, the company was merely filling a "longstanding assignment in the newsroom" after the incumbent was tapped to cover the country's response terrorism in the wake of Sept. 11.
"It was a beat that had to be covered
by somebody able to do fast and dirty reporting,'' Almond said in his opening arguments at the Journal's trial on 20 unfair-labor-practice charges.
According to Almond, the company first "looked to another staff" but the editor resisted. Then it transferred Morgan McVicar into the job but he "chose to resign" before filling the position. Only then was Ziner assigned to night cops, Almond told Administrative Law Judge William G. Kocol, who had presided over the previous trial and ruled in favor of the Guild on every major issue
"If the company had a retaliatory motive, she would have been the first one selected,'' he said.
As for the decision to change the duties of features department copy editors, so that they would no longer be eligible for "small grid" differentials, Almond said the move was not in retaliation for the copy editors' successful efforts to win back the differentials from an arbitrator. It was "a rational and businesslike decision" to cope with the arbitrator's ruling, he said.
Almond's opening remarks also referred to the company's contract offer made a few days before its previous unfair labor practices trial last winter. He called it "a good faith effort to settle the matter. The Guild exercised its right to simply reject that offer.''
Elizabeth Vorro, lawyer for the National Labor Relations Board, started her opening arguments by saying to Kocol: "I don't need to remind you of the context in which these cases arise. Guild-represented employees have been without a contract, wage increases and access to arbitration for just about three years. These cases are essentially a continuation of the conduct you heard about.''
Vorro called Ziner a "respected and award-winning general-assignment reporter on the day shift'' who was "assigned to cover what's known as the cop beat on the night shift'' in retaliation for her union activities.
Vorro also described how copy editors in the features department, right after winning an arbitrator's ruling that the company had to pay them "small grid" differential, suddenly found their job duties changed so that they were no longer eligible to collect the extra money.
And she talked of the company's take-it-or-leave-it contract proposal a few days before the previous trial, to which Guild responded with a request to negotiate. "The company's response to the Guild's offer was a flat refusal to talk," she said, which was "simply the most egregious of what they've been doing for three years."
Guild Administrator Tim Schick took the stand throughout most of the first day of the trial, testifying on a variety of charges.
One issue was the involuntary transfer of Jocelyn Van Stalk and William Murphy from the promotion department in the advertising unit into the visuals department in the news unit. Schick testified that the company has insisted on keeping the advertising and news units separate, and the contract implies that the company cannot transfer employees at will between the units.
In the past, he said, when employees left one unit for the other, they had applied for a posted job. But no job was posted for the positions that Van Stalk and Murphy moved to, and both lost their seniority as a result of the transfer, Schick said. Under the contract's layoff provisions, they could move into a less senior person's job within the promotion department, he said.
Evidence was presented showing that during 2001 the promotions department was reduced by half.
The downsizing of the promotions department, Schick testified later, appeared to be related to the decision to discharge promotions employee Michael Monti when he asked about returning from medical leave in July 2001. The Guild and the NLRB contend that Monti's firing represented a unilateral change in the company's medical leave policy.
At the trial, the company acknowledged that between 1998 and August 2001, when Monti's firing occurred, no employee on medical leave had been involuntarily discharged before the end of the contractually allowed leave time.
During a half-hour cross-examination of Schick near the end of the day yesterday, Journal lawyer Richard Perras sought to show that the issue was a "bogus stress claim" by Monti, not a change in policy by the Journal. In a meeting about the discharge, the Guild agreed not to pursue the matter "if there was clear evidence of malingering," Perras said.
But Schick testified that the company never offered such evidence, and in fact allowed Monti to keep his medical insurance and stay on leave for many months, until he asked to return -- around the same time that the promotions department was being downsized.
Schick testified about the company's Feb. 20, 2002, contract offer. Under questioning from Vorro, he said the Guild did not accept the offer because "We had a number of questions that needed explaining and amplification.'' For example, the one-page offer tied Guild benefits to those of the Pressmen and Teamsters, but the Guild did not have copies of those contracts. When those contracts were obtained, Schick said, he found that many of their provisions were inferior to the company's previous contract offers.
Perras is expected to continue his cross-examination of Schick when the trial resumes today. Additionally Ziner and other Guild members are scheduled to testify. Guild members are urged to attend and offer moral support. The trial starts at 9 a.m. in the Garrahy Judicial Complex on Dorrance Street, Workers Compensation Courtroom 4H.
A major win for Guild
The U.S. Appeals Court ruled yesterday [ ruling (.doc, 37k)] that the Guild was right in taking the dispute over dues collection to arbitration. The court upheld the U.S. District Court ruling that the company was required to arbitrate issues related to the company's assertion that bargaining-unit employees didn't have to pay dues.
The Guild has already won that arbitration, but if the company had won the Appeals Court case, the arbitration decision would have been nullified. Instead, with yesterday's ruling, it stands. The arbitrator ruled that paying dues to the union is a condition of employment for people holding jobs within the bargaining unit. She also said that the company was wrong in telling employees that they didn't have to pay dues, and ordered the company to pay the Guild $210,000 in back dues.
The company has appealed the arbitrator's ruling, but is highly unlikely to win on that front. Arbitration is a means to keep cases out of the court system, and judges typically overturn arbitrators only in cases of egregious errors or misbehavior.
Schick contract renewed
In a resounding vote of confidence in Guild Administrator Tim Schick, members voted overwhelmingly to retain Schick in a recent mail-ballot referendum. The two-part vote was 100 to 11 to keep Schick as administrator, and 96 to 14 to approve his new 5-year contract.