By Felice J. Freyer

The core questions in the case concern whether an impasse occurred in negotiations and, if so, whether the Journal responded appropriately.

But Journal lawyer Richard A. Perras addressed the impasse question only in his opening arguments -- and even then in a way that prompted the judge to question his logic.

The issue never came up again in the company's presentation, nor is it addressed in documents other than those that chronicle bargaining history.

The Journal's defense was so feeble that the National Labor Relations Board prosecutors are considering asking the NLRB Regional Director for permission to try to force the Journal to pay for the board's costs in prosecuting the case. Typically, the NLRB seeks to recoup costs only when a company's position is plainly without merit.

A company can declare impasse and impose terms of employment when extensive good-faith bargaining fails to yield an agreement. But the evidence presented at trial points to bad-faith bargaining and delay tactics by the Journal.

The only testimony on bargaining came from Guild Administrator Tim Schick. Even someone unfamiliar with labor issues, hearing Schick's account, would be hard-pressed to sympathize with the company's point of view.

Detailing the bargaining session by session, Schick described how the Guild made offers, how the company rejected those offers but made few changes in their own proposal, and how the company then gradually imposed on workers selected terms of its original contract proposal.

Two types of other charges

The other charges against the Journal can be divided into two categories: allegations that the company failed to provide timely responses to the Guild's requests for information, and allegations of numerous unilateral changes in working conditions.

On the information issue, the company defended itself by cross-examining Schick -- which is like doing catechism with the Pope. There was not one moment of bargaining history, not one subsection of the contract, that Schick was not thoroughly acquainted with.

Perras may have won a point or two -- Schick's testimony, for example, suggested that one information request may have been overbroad -- but his cross-examination served primarily to give Schick fresh opportunities to promote the Guild's case. On a couple of occasions, Perras's questions even opened the door for Schick to mention Journal misdeeds that were not part of the trial.

The Journal also had Human Resources Director Thomas J. McDonough testify on the information requests. McDonough appeared so befuddled and hesitant that it seemed apparent that he is not a key decision-maker. In one instance McDonough did respond with confidence and clarity -- but his answer backed up the Guild's position.

Perras, a partner with the prestigious law firm of Edwards & Angell, has spent many bargaining sessions and grievance meetings with McDonough at his side and Schick across the table from him. He must have known how these witnesses would perform -- and he must have had nothing better to offer on his client's behalf.

It probably did not escape the judge's notice that McDonough, who attended every bargaining session, was never asked to testify about bargaining.

Unilateral changes defense

The Journal reserved most of its firepower for the charges of unilateral changes, bringing in seven managers as witnesses in arguably the least important part of the case.

These charges involved the sort of issue that would normally be handled by grievances and arbitration. Under an expired contract, the Guild can file grievances, but except in limited situations, it cannot seek arbitration. The unilateral-change charges involve cases of alleged contract violations that the Guild grieved and the company rejected. With arbitration unavailable, the Guild filed unfair-labor-practice charges.

The Journal probably won a few rounds in this arena.

When Advertising Director Maura Brodeur testified that the ads in a special business section, sold by a subcontractor, were no different from the ads that the company normally accepts from advertising agencies, the NLRB (in consultation with the Guild) decided to drop the charge that the company had farmed out bargaining-unit work.

City editor Susan Areson's testimony about a training program for sports editors left questions about how late employees worked the night in question and how much overtime they were owed.

In other cases, the documents will clarify what testimony left ambiguous. Jack Simeone, special projects manager, testified that security changed little in May 2001, when the NRLB alleges the company eliminated 24-hour security at Fountain Street. This assertion is not only contrary to the experience of anyone who walked in and out the building during that time -- it is contradicted in a letter to the Guild from Perras. The NLRB lawyers will surely note the inconsistency in their brief.

Interesting but not crucial

Some aspects of the trial that held great interest to readers of these reports are actually not very important to the Guild's case.

No one will forget Managing Editor Pat Welker's attempt to discredit Editorial Assistant Doreen Tracey, but Welker's action will probably have little bearing on the outcome. Even if the judge believes that Tracey deliberately misrepresented her work on one time sheet way back in 1998, the facts of the issue at hand remain uncontested: In previous years Tracey received a differential for doing graduation lists; in 2000, the company stopped paying it. (The Guild has requested, but not yet received, a copy of the time sheet for Tracey to review; Tracey denies doing anything improper.)

And while it's amusing that Welker and Areson fingered each other for cutting off "small grid" differentials to copy editors, their disagreement doesn't really matter. They agreed about the issues that are critical to the Guild: Both testified that the company changed a pay policy without informing or involving the Guild

Guild members have looked forward to the NLRB trial as chance to seek justice. Now that we've had our day in court, we must face what we've known all along -- that justice will be delayed, and delayed, and delayed.

The trial was repeatedly postponed for almost a year. Yesterday, when the company refused to allow a separate hearing for additional charges that the NLRB is likely to file, the prospect of further delays arose. If additional charges are filed, the same judge will have to return to Rhode Island, probably in late summer or early fall, to hear the new charges before issuing a ruling.

And the Journal, ever litigious and dilatory, is likely to appeal the ruling as far as it can take it.

Meanwhile, though, virtually all the terms of our expired contract remain in effect. Members still have the protection of union representation, and the Guild still effectively protects their interests. Recently the Guild stepped in to ensure that an intern transferred to the Sports Department was hired as a reporter at full reporter's pay. A few days before the trial began, the Guild won an important arbitration ruling concerning small grid payments in Features. (A future Guild Leader newsletter will explain.)

When Belo called for staff cuts, some 70 people at the unionless Dallas Morning News were handpicked for layoffs based on managers' whims. At the Journal, because we have a union, voluntary buyouts were offered instead.

Guild members know why we need a union here. But only Guild members can preserve the union. The NLRB may take our issues to court, and it may well win, but the federal government isn't going to get us a contract. Only we can do that.

It's not easy -- but it's possible -- to turn around an intransigent company bent on destroying a union. But it will require the ongoing efforts -- and endless patience -- of many, many Guild members.

No outside agency can provide the strength that must come from within.

Felice J. Freyer is the Providence Journal's award-winning medical writer. She joined the paper in 1982 and was assigned to the medical beat in 1989. A member of the Guild's Executive Committee since 1994, she has taken a leave from the newspaper to cover the trial.

There is much more information about the dispute at the Guild's main website, www.riguild.org. E-mail the Guild at png@riguild.org. The union's mailing address is: The Providence Newspaper Guild, 270 Westminster St., Providence, RI 02903. Telephone: (401) 421-9466. FAX: (401) 421-9495