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.”

Under the terms imposed by the Company, your days off can be changed without your consent once a year. But what does “without your consent” mean?

This issue arose after a group of employees in the circulation department had their days off switched. Guild President Tim O’Brien and Chief Steward Brian Nearing met with company leaders Monday to discuss the changes.

Company leaders praised the employees’ performance, saying they had increased revenue in the first week handling outbound calls. The TU also is looking to bring work now done by an outside contractor, confirming new starts, in house.

That was welcome news, but we did have one question: “Did you ask the employees if they consented to the changes in their days off?”

The initial answer was no, but if no one said they disagreed with the switch, the company assumed the employees consented. That means if the TU wants to change the workers’ schedules again in a few months, it would argue that employees could not invoke their right to limit changes without consent to once a year.

The Guild said implied consent should not be enough. Employees should be specifically asked if they agree to the change. Otherwise, both parties could find themselves in a later dispute over whether silence meant consent.

To its credit, the Company then said it would provide a form to employees asking if they consent to the change. If an employee says yes, their days off could be changed again in less than a year without their agreement. If an employee says no, the company cannot change days off again within a year unless the employee agrees.

Employees should not worry they will be penalized for saying they do not consent to the change. You have a legally protected right to invoke a benefit.

While this issue first came up in circulation, it is relevant to every Guild-covered worker, and we thought you should know about it.

One of the best parts of attending the Guild and CWA annual meetings is to talk to other union leaders about what is happening in their locals.

And there is no one I look forward to chatting with more than Michael Cabanatuan, leader of the Northern California Media Workers Guild. It’s not just that Michael is a very nice guy. He also leads the Guild local at the Hearst-owned San Francisco Chronicle, and what happens there often heads our way next. (Michael also lives in Albany, California, an irony we both enjoy.)

Here’s his assessment of the Hearst Corp. and how it is treating workers there. It’s not pretty, but Chronicle workers are lucky to have a strong president and leadership. We support Michael and his colleagues as they have supported us.

U.S. District Court Judge Gary L. Sharpe ruled in our favor that the Company must allow the case over the cutoff of dues collection to go to binding arbitration.

You can read the text of the judge’s decision here.

The Newspaper Guild has won a major victory over the Times Union over the cutting off of our dues collection last year.

The newspaper tried to prevent the union from being able to take the cessation of dues to arbitration, but a U.S. District Court justice ruled Friday that the union has a right to be heard on the case.

Last year, in an effort to force members to accept a contract that would enable the  newspaper to lay off anyone without negotiation and to lay people off and outsource their work, the Times Union canceled its contract with the union and stopped collecting dues.

The Guild argues that the newspaper does not have the right to cease dues collection. The Times Union refused to let the case go to arbitration, which resulted in the court battle the union has now won.

“We are grateful to the Guild’s International and its lawyers for their hard work on this case,” Guild President Tim O’Brien said. “The Times Union needs to stop its harmful treatment of its employees. We know times are tough and have always been willing to make concessions, but employees still deserve to be treated with kindness, dignity and respect, and part of that is to respect the workers’ right to bargain over critical matters like layoffs and outsourcing. Cutting off our dues to compel members to support an unfair contract was improper and, we’re proud to say, it didn’t work.”