1st NLRB Case Heads
to Washington on Appeal

The Journal has appealed every ruling against it in a judge's decision on 44 unfair-labor-practice charges, as well as every remedy the judge imposed.

In a 47-page brief obtained by the Guild, the company holds that, contrary to the judge's ruling, there was in fact an impasse on Jan.1, 2000, and that the company had the right to change medical and dental plans, reduce vacation time, cut parking benefits and make a slew of other unilateral changes.

The Journal also argues that it had the right to withhold information that the Guild asserts it needed to represent its members and that it did not engage in illegal bargaining tactics, even though the judge found otherwise.

In filing these appeals the company joins the Guild and the New England Region of the National Labor Relations Board in seeking changes in the Sept. 12 ruling by Administrative Law Judge William G. Kocol. But the Journal's appeals are by far the most extensive.

Kocol ruled against the company on 28 of the 44 charges, favoring the Guild on all the most important issues. The Guild estimates that the remedies that Kocol imposed - which include back pay and reimbursement for medical costs - will cost the company several million dollars. (Kocol is currently considering an additional 20 charges that were tried in April.)

The NLRB filed nine appeals and the Guild filed seven. The NLRB is appealing the judge's rulings that the company had the right to deny several information requests and that it had the right to discontinue small grid payments in the newsroom, among other things. The NLRB also says the judge, as a matter of law, should have ordered the Journal to bargain with the Guild. The Guild's appeals cover similar territory.

The appeals go the full National Labor Relations Board in Washington, D.C. The U.S. Senate last week confirmed the board's five members, four of them new. As the new members get up to speed, major backlogs can develop. It could take several years to resolve the appeals.

Meanwhile, however, the Guild and the Journal have been negotiating in off-the-record sessions. Four were scheduled for November. Both sides have agreed not to reveal the content or tenor of these discussions.

These are some of the assertions the Journal makes in its appeals:

• The company was justified in imposing new medical and dental plans, and unilaterally changing other contract provisions, because the Guild "held fast" to its positions refusing to agree to eliminate parking benefits from the contract, insisting on an indemnity-style health-insurance plan, and refusing to agree to the same dental plan as all other employees. "Every one of the proposals the Journal implemented has been a legitimate defensive response to the Guild's refusal to budge on these core principles,'' the company's brief asserts.

• The Guild's decision to take the company's "last, best and final offer" to a membership vote on Feb. 2 and 3, 2000, was evidence that the Guild had all the information it needed. The two parties were at "full impasse" when the company rendered its final offer on Jan. 24, 2000. The judge had questioned how the Journal could declare impasse and impose conditions on Jan. 1, and then assert that impasse occurred weeks later. The Journal's brief addresses this question in this way: "If, as must be the case, the parties were at full impasse on Jan. 24, 2000, what practical significance is the Administrative Law Judge's finding that the parties were not at impasse on Jan. 1, 2000? … How has the Guild been disadvantaged by a three-week hiatus between a finding of no impasse and the recognition of full impasse on Jan. 24, 2000?" (Neither the Guild nor the NLRB believes that impasse occurred on Jan. 24 or any other time.)

• The Journal did not engage in regressive bargaining (an illegal tactic) when it withdrew its wage offer in response to the Guild's preparations for a boycott. "The effects of a consumer boycott on a daily newspaper, as the Guild well knows, can be devastating. The Guild proposed the consumer boycott to increase its leverage in negotiations. The Journal responded by withdrawing its proposed wage increase to increase its leverage in negotiations. That is not a violation of the act, it is hard bargaining."

• The Journal did not unreasonably delay in providing information to the Guild on about employee health plans when it responded in July to request made the previous November.

• The company had the right to refuse to tell the Guild whether it planned to sell its parking lots because it was "irrelevant" whether or not there would actually be parking spaces available for Guild members. The company asserts that Guild's only objection to the "free parking" proposal was that it would not be part of the contract, so the Guild's interest in what would happen to the parking spaces was not relevant.

• The Journal had the right to "update" Doreen Tracey's job description so that it included preparing graduation lists every spring -- work that she regularly did but that had previously been considered work in a higher classification. Rewriting the job description is a management prerogative. The company also had the right to unilaterally stop paying Tracey a "small grid" differential for doing the graduation lists because there was no evidence that when she prepared the lists she was substituting in a higher classification.

• The NLRB lawyers failed to provide sufficient evidence that the Journal switched from a voucher system to a reimbursement system to pay for employees' taxicab rides outside of Providence. Even if the Journal had changed its policy, it had no obligation to negotiate with the Guild over it because the contract has a clause referring to reimbursements for business expenses that mentions nothing about vouchers.