The Times Union broke the law when it removed workers from their jobs when the newspaper was supposed to be negotiating layoff criteria – and broke the law again when declaring impasse in those negotiations, a judge has now ruled.
Administrative Law Judge Mark Carissimi ordered the newspaper to return the 11 affected employees to their jobs or similar jobs and to make them financially whole for lost wages and benefits. The Times Union also was ordered to return to the bargaining table with the Newspaper Guild of Albany/CWA.
“The unlawful unilateral change of placing the employees it was proposing for layoff on paid leave establishes a lack of good faith,” the judge wrote.
You can read the full text here.
The decision is important not only for those laid off last year. It also means no other employees can be subject to similar treatment in the future, and it sets a precedent that bars other private-sector employers from similarly walking people out during layoff negotiations.
The judge rejected the Times Union’s argument the Guild was unwilling to negotiate over layoff criteria. In fact, the judge says, the union made a proposal the day before impasse was declared the company described as “movement” on the union’s part.
“Even though the (Times Union) had presented the union with a fait accompli regarding the issue of layoffs, the union was exhibiting signs of addressing the (newspaper’s) stated need for flexibility in conducting layoffs,” the judge wrote. “The record convinces me that, rather than exploring whether the union’s change in position could serve as a basis to move the parties closer to an agreement on this issue, the (Times Union) declared impasse.”
After only two days of bargaining over layoff criteria, the Times Union removed employees from their jobs last July. The newspaper’s own story called the action layoffs.
The judge rejected the company’s argument the leaves were equivalent to a “paid vacation.” The workers were made to hand over their entry badges, had their e-mail accounts taken away, and their names were stripped from mailboxes.
“In my view, being told your position will be eliminated unless later bargaining reverses the decision, and having all normal working contact with your employer cease, is not the equivalent of a paid vacation,” the judge wrote.
In fact, he said, the action was meant to send a loud and clear message to all employees and to put the union at a disadvantage in further negotiations.
“The (Times Union) spent four months developing and applying criteria for determining how it would conduct out of seniority layoffs,” the judge wrote. “After only two bargaining meetings, the respondent applied the criteria to unilaterally select the employees it wished to lay off and removed them from active employment. This action, in my view, seriously disadvantaged the union’s position in effectively bargaining regarding the criteria to be employed for out of seniority layoffs.”
He based his decision in part on the testimony of the company’s lawyer, who said the employees were walked out to “calm the atmosphere.” That testimony, the judge ruled, “confirms that the respondent intended this action to serve as a message to the employees who were not proposed for layoffs that their jobs were safe.”
The ruling drew swift reaction from area labor leaders.
“We knew they were breaking the law,” said Jeff Stark, executive vice president of the Capital District Area Labor Federation. “Now we just hope the Times Union will accept the decision, restore the workers and put this sad chapter behind them by settling the contract. It’s caused great hard feelings, and it’s tarnished a once great image.”
The decision comes after a trial last May, litigated by Al Norek of the Albany office of the National Labor Relations Board, and by Quinn Philbin, counsel with the firm of Barr & Camens, the Guild’s lawyer.
Like a conviction in a criminal case, the Times Union is now legally guilty as charged. The company can appeal to the full National Labor Relations Board in Washington, D.C., but the meter is running now on back pay owed to the laid-off workers.
The Guild is grateful to Al Norek, Quinn Philbin and the laid-off workers who testified.
“Those employees deserve better after all they have been through than a long, drawn-out appeal meant only to drag the case out,” Guild President Tim O’Brien said. “Justice can be delayed. It will not be denied.”