Judge: Ziner was illegally punished,
must be returned to day shift;
Heslin called 'not credible'
Work changes for Features copy editors ruled illegal
A federal administrative law judge has ordered the Journal to reinstate reporter Karen Ziner to the day shift and to resume giving "makeup" work to copy editors in the Features Department.
Judge William G. Kocol said that Ziner's transfer to "night cops" was done as a punishment for legal activities and that metro managing editor Thomas Heslin, who testified that he chose Ziner for the job because she had the right skills, was "not credible."
"The nature of the Journal's conduct itself leads me to conclude that it was designed to punish Ziner," he wrote. "Yet no credible lawful reason exists to explain why [The Journal] took a veteran, award-winning reporter from the day shift and put her on the night shift covering mostly mundane matters. Heslin's testimony concerning why he selected Ziner is so vague and lacking in supporting foundation that I do not credit it, even apart from Heslin's general lack of credibility."
Kocol's long-awaited ruling on 20 unfair-labor-practice charges against the Journal favored the union on five of the most significant charges and dismissed the others. Kocol heard the charges at a trial last October. Kocol also ordered the company to provide information to the union that it needs for collective bargaining, to stop discriminating against employees who engage in organized activities, and to stop bypassing the union to deal directly with employees on issues related to working conditions.
The Guild expects the company to appeal the judge's decision, and the Guild and National Labor Relations Board, the federal agency that brought the charges, may also file some appeals.
In the Ziner case, Kocol ruled that Ziner was transferred in retaliation for "protected, concerted activity" - a petition circulated on her behalf. In the summer of 2002, Ziner reported on a domestic-violence case. One of the subjects of the story complained about her coverage, and she was removed from the story, even though the editors did not question the accuracy and fairness of her account.
Reporter Morgan McVicar circulated a petition protesting the transfer, and a story about the Ziner's removal from the story and the petition appeared in The New York Times. Shortly afterward, McVicar was assigned to night cops, but quit rather than take the demotion. Ziner was next assigned to the shift, which runs from 4 p.m. to midnight Tuesday through Saturday. In the past, that position had always been filled by reporters from the bureaus as a stepping stone to a downtown beat.
"Heslin testified [The Journal] was short-staffed in the bureaus and that was the reason he selected from the staff at the main facility, but he later admitted the main facility was also understaffed," Kocol wrote.
"We have a situation where [The Journal] had an opportunity to assign virtually anyone from its staff to the night shift but it selected first the leader of the petition drive and then the subject of the petition. I cannot conclude that this is mere coincidence."
Kocol wrote that despite what Heslin said about Ziner's skills fitting the job, her transfer was clearly a demotion. "Ziner went from reporting some of the top stories for [The Journal] to listening to police and fire department scanners and giving out information on the weather and lottery numbers," the ruling states.
Kocol also rejected as "not credible" Heslin's testimony that he didn't know about the petition, which had been delivered to Executive Editor Joel Rawson. "News of the petition made The New York Times. Indeed, Rawson, Heslin's superior, was quoted in the story. The New York Times article pertained [to] Heslin's own department. Further the petition was circulated in the newsroom, where Heslin's office is located. Under these circumstances it defies belief that Heslin would not have noticed this story. Moreover, Heslin's general demeanor as a witness was not at all convincing."
He ordered the company to reinstate Ziner to the day shift within 14 days of his ruling, which was dated April 11.
The charge concerning copy editors in the Features Department involves the company's decision to stop assigning four copy editors to design pages, known as "makeup" work. That decision came immediately after an arbitrator required the company to pay extra - the so-called "small grid" differential -- to copy editors who perform makeup work. Kocol ruled that this action was an "unlawful change in terms and conditions of employment."
The Journal, he wrote, "had for years assigned makeup tasks to the copy editors. This became a condition of their employment. The record is clear that [The Journal] stopped assigning makeup work to the copy editors resulting in a loss of pay to those employees; it did so without first notifying the union and giving it an opportunity to bargain."
To the Guild's disappointment, the Kocol failed to see the hostility the Journal showed its employees when it sent a letter on the eve of the February 2002 unfair-labor-practice trial with a vague, one-page, take-it-or-leave it contract offer. The company instructed the Guild to simply say "yes" or "no" to its offer and to drop its unfair-labor-practice charges. When the Guild suggested postponing the trial and bargaining to clear up the details, the company rebuffed us.
Kocol said the company's letter and its subsequent rejection of the offer to bargain did not violate the law. But he did rule that the Journal violated the law when it sent a copy of the letter to employees at the same time, before the union had a chance to study it. This, he said, was illegal "direct dealing" in which the company tried to bypass the union and bargain directly with employees. The company was ordered to stop direct dealing.
The other disappointing decision concerned the effects of the buy-out program in fall 2001. Because so many employees took advantage of the early-retirement program, their absence affected the working conditions of those left behind. The Guild sought to bargain over the effects of the buy-out, but the company refused. Kocol ruled that the Guild should have raised all its concerns about the buy-out when the program was first proposed, not afterward.
Kocol also ruled that the company was not threatening retaliation for union activity when Deputy Executive Editor Carol Young told Babette Augustin, a picture editor, that she had ruined the career of an intern by taking him to help distribute Guild leaflets at a Brown University event. Kocol said that Young merely "voiced her view that Augustin had ruined [the intern's] career," but did not threaten that the company would harm the others' careers in retaliation for leafleting.
Kocol also ruled against the Guild in the case of Michael Monti, who was retroactively fired when he attempted to return from medical leave. The National Labor Relations Board contended that this was unilateral change in medical leave policy. "I disagree," Kocol wrote. "Monti was terminated because [The Journal] believed he had abused the system by filing false claims."
TNG/CWA Local 31041
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