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Labor disputes at the Commercial Appeal! Read all about it!

Last Thursday, at the IBEW hall on Madison Avenue, Mark Watson, president of the Newspaper Guild of Memphis, had grim news for the small group of Commercial Appeal employees gathered in the borrowed union building.

But it could have been worse.

"There will be no more than five layoffs," he said. "If some workers accept early retirement, the number might be further reduced. The CA isn't offering buyouts [to early retirees]. Just early retirement."

The guild's 371 members include advertising sales reps, writers, artists, and custodians. They represent the collective skills and services necessary for the production of a major daily newspaper. Guild contracts expired on January 11, 2004. On August 9, 2004, the CA'snoted union-busting attorney, Michael Zinser, filed a federal declaratory-action suit against the guild in an effort to unbind the newspaper from an "evergreen" clause that extends terms of an expiring contract until it's replaced by a new agreement. Guild-covered employees received their last wage increase in January 2003.

"Layoffs will be mostly in the editorial department," Watson told his somber audience. He further suggested that the ax would strike hardest at the newspaper's copy desk, the department where Watson works. Watson doesn't imply that he's being targeted for dismissal, but guild literature alleges that its officials "have been harassed." In April 2004, Michael Burrell, the guild's sector representative and lead negotiator, was banned from TheCommercial Appeal building. When layoffs began last November, eight members of the guild's bargaining team lost their jobs. Two were members of the executive committee. One had recently received the second-highest employee evaluation in his department.

"Mark was moved to the copy desk as part of a ‘progressive discipline,'" says Shannon Duffy, an AFL-CIO organizer who has been working with the guild since March 2004. "The incident that caused this ‘progressive discipline' was related to union activity. … Union members tell me that they support the bargaining team, but that they would be much more active if they weren't afraid that when layoffs come around they will be at the top of the list."

Last August, CA negotiators said the paper would no longer offer across-the-board pay increases; all raises would be based on merit. Then negotiations ground to a halt in February.

Assistant to the publisher Henry Stokes, speaking on behalf of CA publisher John Wilcox, describes the break in negotiations as a kind of cooling-off period.

"At one point, the guild president [Watson] slammed his fist down on the table and said the guild would accept the [merit-based pay plan] ‘over [his] dead body,'" Stokes says. "Well, we don't want to kill anybody. … We suspended talks because we weren't getting anywhere. Maybe it helped."

In March, Burrell urged the CA to return to the negotiating table. On May 5th, Zinser responded, saying that the CA's position hadn't changed, and that without "substantial movement" toward the company's positions there was little point in re-engagement.

Meetings did resume in June, with newspaper negotiators proposing a one-time merit-based wage increase representing 2.75 percent of total payroll expenditures. Only employees in specific areas who had already reached their top minimum scale would qualify for the raises, however, and the guild has not yet accepted the proposal.

"It's been a couple of years since the guild people have gotten raises," Stokes says. "[The Commercial Appeal] has put an interim raise on the table. The guild's objections to merit pay have been based on fears that it will be arbitrary or capricious. We're trying to offer them a freebie so they can see how we would administer [merit pay]. Most [qualifying members] would get some money, and we think that's better than nobody [getting money]."

Duffy says the merit-pay offer is just another part of Zinser's "patented divide-and-conquer" strategy. He cites other newspapers represented by the Nashville-based attorney where similar deals were placed on the table to create confusion and division in union ranks.

"There's only one reason a newspaper would hire Michael Zinser, and that's to bust the union," Duffy says. "[He uses] the oldest tricks in the book. He's going to drag this negotiation out as long as he possibly can. And he's going to try to turn guild members against each other. If it goes on long enough, somebody is going to file a petition to decertify [the union]. There will be pressure, and somebody will circulate a petition to decertify."

Duffy describes the offer of a one-time limited pay increase as "a canny move" by Zinser. "He's a sonofabitch," Duffy says, "but he's a smart sonofabitch." Both Duffy and Burrell think that an outright rejection of the pay proposal makes the guild vulnerable to criticism should negotiations drag on.

"This could go on for a long time. And after a while [the CA] can tell employees, ‘We tried to give you some money but your union said no,'" Burrell says. Although the interim pay increase only affects a limited number of employees, he also fears that accepting any increase will make it more difficult to negotiate for across-the-board retroactive pay and that those who miss out on this merit-based pay raise will never be compensated for wages lost while working without a contract.

"Will [negotiations] take a while?" Stokes asks rhetorically. "It's all about what two parties are willing to do together. Sometimes these things move slowly, but when you get on the path to settlement you'd be surprised how fast things can move."

At a meeting last week attended by approximately 25 percent of the guild's membership, a counter-proposal for a 4 percent across-the-board raise received unanimous support. The proposal included retroactive pay for everyone represented by the guild. Before the vote was taken, a guild member compared the newspaper's merit pay offer to "free cigarettes." "It sounds like a sweetheart deal," he said, "but in the end it just kills you faster."

"Nothing has changed [since negotiations first stopped in February]," Burrell says. He shrugs, acknowledging that the CA has finally backed away from archaic policies that make dating a fellow employee cause for immediate termination. "But they kept that issue on the table for 18 months," he says. The company also softened contractual language that made employment outside the Memphis Publishing Company a fireable offense.

"Like I said, nothing of significance has changed," Burrell insists. "This is all a part of [The Commercial Appeal's] strategy."

The guild has three major issues with the CA's proposed contract: The merit pay system, portions of a management-rights proposal, and employment policies regarding non-negotiable causes for immediate discharge.

According to the CA's proposed contract, "just cause" for termination includes terms such as disloyalty, insubordination, and dishonesty.

"These are all subjective terms," Watson says. "Disloyalty? What does that mean? Am I being disloyal right now because I'm complaining to [The Memphis Flyer]?"

Duffy agrees with Watson's assessment and says TheCommercial Appeal is being dishonest. "All over America, management makes dumb-ass decisions," he says. "The workers don't make those decisions, but when it comes time to cut costs, they get penalized for them."

An internal CA memo leaked to the Flyer earlier this year provides grist for Duffy's comments. The memo, from CA editor Chris Peck, describes efforts to "re-plate" the newspaper to create slightly different editions targeted for urban blacks, suburbanites, and DeSoto Countians. According to the memo, those efforts had become financially untenable. The process had disrupted circulation, resulting in delayed deliveries.

It's not fair to suggest a direct relationship between zoning the newspaper to different demographics and impending layoffs, but costly managerial mistakes have been admitted and staff reduction is a reality.

According to the trade publication Editor & Publisher, E.W. Scripps, The Commercial Appeal's parent company, reported posted circulation declines for its newspapers of 4.5 percent daily and 5 percent for Sunday in the most recent reporting period. However, the company's total newspaper revenue increased by 2.8 percent in May 2005 compared with the same period in 2004. Newspaper advertising revenue company-wide grew 3.8 percent. Local advertising was up 2.7 percent, national advertising increased 3.7 percent, and classified revenues grew 1.1 percent. Circulation numbers for the chain's newspapers were less encouraging, however.

Merit Pay vs. Scale

"The Commercial Appeal is a good place to work. If you're male and you're white, it's even better." So begins an executive summary of a payroll data study executed by the Newspaper Guild with assistance from the Labor Bureau Inc., a Washington, D.C.-based consulting firm specializing in labor/management issues. The survey of current employees shows that male workers are twice as likely to receive merit-based pay or "any pay beyond the traditional cost-of-living adjustment." According to the report, "African Americans comprise slightly less than 30 percent of the newspaper's 371-member bargaining unit," but "as few as 8 percent of employees with merit pay are black."

"I've got three problems with the merit pay policy," Watson says. "It's too stale, too pale, and too male."

Stokes has seen the guild's study, and he says it's flawed because it only polls current employees and lacks historical perspective. In his opinion, the study reflects "payment above scale," which can't be compared to actual merit-based pay. "Departments are budgetarily limited," he says. "When a department has had the money to dole out for outstanding work, a limited number of people have gotten raises."

"I wouldn't say that the Labor Bureau's study reflects racism or sexism in company policy," Watson says. "It's a matter of practice. [Managing editor] Otis Sanford is a black man. [Assistant managing editor] Leanne Kleinmann is a woman. I doubt if they ever intended to discriminate against blacks or females. But merit-based raises have been going mostly to white males. The merit process is a lottery. One company manager might be excellent at rating employees on things like ‘overall attitude' or ‘flexibility.' But that manager's replacement may be the world's worst.

"Under a merit-only system, everything is subjective and all pay increases are determined by these kinds of [subjective] managerial decisions," Watson continues. "There's no promise that even employees with good reviews will necessarily receive a pay increase."

Stokes disagrees. "[The Commercial Appeal] proposes [eliminating] old-fashioned industrial-age [pay scale] brackets," he says. "We think [merit pay] is better and more practical. People can better control their own destiny. [Guild negotiators] haven't really wanted to discuss this with us."

Deliverance

It's Saturday afternoon in a Commercial Appeal-owned warehouse behind the Teacher's Credit Union near the corner of Chelsea and Willett. CA delivery drivers and haulers are here to stuff inserts into the Sunday paper. It's hot, and the bay doors are open. Box-fans hum and workers sweat and swat at mosquitoes while lethargically pushing shopping carts full of coupons and classified ads across the concrete floor.

The drivers' contract specifically states that no "employer/employee" or "master/servant" relationship exists between them and The Commercial Appeal. But the part-time employees who once stuffed inserts into the paper were let go a year ago, and drivers were told that stuffing inserts was now part of their job responsibilities.

"We weren't given a choice," one driver says. "We're supposed to be independent contractors and we're supposed to be able to negotiate these things, but we weren't given a choice."

Entire families are gathered around tables stuffing papers. "Mama treats me like her slave," one of the kids says.

"You don't know anything about a slave," the mother answers.

The delivery drivers are self-employed and responsible for their own cars, fuel, and insurance. They are paid eight cents per paper during the week and 15 cents per paper on Sunday. They are responsible for contracting and compensating any additional help. So if the paper is being prepared for delivery with the help of unpaid child labor, it's not TheCommercial Appeal's fault.

A handful of drivers come forward to talk. They say the newspaper is trying to have it both ways by treating them like employees without providing the accompanying benefits and protections. One driver shows a sign that had been posted in the warehouse stating that drivers will be charged back on complaints for wet, missing, and late papers: 75 cents for weekday papers; $1.75 for Sunday editions. They wonder aloud about how complaints are verified and what they can possibly do -- short of putting papers directly into the hands of every subscriber -- to ensure error-free delivery.

Drivers can quote passages from their contract, but they often have difficulty explaining what those passages mean. Nobody, for example, can explain the difference between an "employer/employee" relationship and their own existing relationship with the CA.

Although no efforts are under way to organize CA drivers and haulers, a recent court decision against the St. Joseph (Missouri) News-Press sets a precedent for unionizing. A judge ruled that News-Press drivers and haulers don't operate independent businesses but "devote virtually all of their time, labor, and equipment to providing the essential functions of the [newspaper's] business." The losing attorney for the News-Press was none other than Michael Zinser.

On this hot afternoon in the CA warehouse, one kid -- no older than 8 -- becomes bored with stuffing papers and goes outside to throw rocks, resulting in a broken car window. Only a small number of individuals working in the warehouse are actually "employed" by the CA and protected by EEOC rules. No matter how many windows he breaks, the kid isn't one of them.

Outsourcing the News

Unlike the CA's drivers, members of the Newspaper Guild are considered fulltime employees. But they can perhaps be forgiven for fearing that CA management might have a similar "employer/employee" arrangement in mind for their jobs. In fact, one of their biggest concerns with the company's management-rights policy proposals is the flexibility it provides the company to outsource labor.

"The paper could outsource every position but one in every department," Watson says. "I'm not saying that they have proposed this, but they could do it. You might have one person here in Memphis compiling data for classified advertising and the rest would be in India or Estonia or Arlington, Texas."

Even the idea of outsourcing editorial content isn't entirely farfetched. Watson points out that Reuters, a multimedia news agency, has been outsourcing some of its business news. Wall Street is now being covered from India. Reuters also plans to move its photo-editing desks in Canada and Washington, D.C., to Singapore. And according to Global Journalist magazine, 10 percent of Reuters' workforce will be located in Bangalore by mid-2006.

Stokes' response to guild concerns about outsourcing is that the previous contract also provided "pretty extensive rights to outsource. Flexibility is important to management," he says. "Flexibility to reward employees and flexibility to break down walls between [traditional] classifications."

Watson is encouraged by the solidarity his union is showing, but he's not entirely confident about the future. "Eventually the union will cave and then there won't be a bargaining team. ? I've been reading the biography of Mother Jones and thinking about Michael Zinser. He's not a gunslinger like the [lawyers] hired by Rockefeller or other robber barons. He's a lot subtler and much more effective, I think. If you want to defeat a union, all you have to do is wait."


The Other Union

A FEW WORDS with Randy Peeler, nightside union chairman FOR THE CA PRESSMEN

The Newspaper Guild hasn't got anything on the CA's Teamster-affiliated Pressmen's Union. The 35-man department hasn't had a wage increase in five years. They haven't had a contract for four years.

Flyer: Why have contract negotiations gone so slowly for the pressmen?

Peeler: The bottom line: The company doesn't negotiate. They make demands. They have demanded major concessions from our side concerning some sticky subjects that are hard to work around.

What are some examples?
Well, the drug policy, for one. The company wants to enforce Department of Transportation standards even though none of us drive company vehicles."We've been advised by our attorney not to accept the policy, because if someone received a DWI off the clock, they could be terminated. Also, the company wants to take work from pressmen and give it to people outside the shop. They want to hire 'assistants.' They want to hire cheaper labor they can bring in on a part-time basis."

What do pressmen do?
Primarily, members of the Pressmen's Union operate and maintain the presses. Right now we're short of people. It's hard to schedule days off because work fluctuates so much, and you have to have leeway.


The Lawyer...

The Commercial Appeal's labor negotiator, Michael Zinser, has become the Newspaper Guild's biggest bogeyman. He's the poster boy for union-busting, and defaced pictures of Zinser wearing devil horns are tucked away in cubicles all over the newspaper's building. On his Web site, ZinserLaw.com, Zinser cites his "significant victories," which include a "nationally precedent-setting case" defeating an EEOC attempt to enforce an "administrative subpoena in a sexual harassment case"; a 1997 ruling "for the employer in a racial harassment case"; a 1995 ruling "dismissing allegations of pregnancy discrimination"; and a ruling "dismissing employee claims of disability discrimination, [and] workers' compensation retaliation."

... and The Organizer

"Sometimes my job is being the skunk at the picnic," says AFL-CIO labor organizer Shannon Duffy. Lately that description has been particularly apt. Duffy and a small cadre of guild members have been dressing up like evergreen trees and picketing and hand-billing at Commercial Appeal-sponsored events. They protested during the grand opening of the Desoto Appeal offices and distributed literature at a recent CA-sponsored job fair and zoo event. The police have been called on to intervene but always deferred to the protesters' First Amendment rights.

"Do I think mobilization is working?" Duffy asks himself. "Yes, I do. We've been working with the faith community. We collected and sent 50 postcards from people in the community and sent them to John Wilcox this week. Two of the issues we've hit the hardest when we hand-bill have been the right to date a co-worker and the anti-moonlighting language. People respond to these things; they can't believe they are true. And I don't think it's an accident that those issues that we hit the hardest came off the bargaining table this week."

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