The Commercial Appeal has started playing hardball with its union employees. On August 9th, the CA filed a declaratory action suit in federal court against the Memphis Newspaper Guild (MNG). The CA and the MNG have been in slow-moving contract negotiations since November 2003. Two other unions, one for the pressmen and a second affiliated with the Teamsters, have been without contracts and in negotiations with the newspaper for nearly three years.
There are no damages awarded in declaratory action suits, which are generally filed to give clear and specific meaning to vague contractual language, presumably to avoid future legal actions. Though judges have historically preferred not to rule on such cases if there is no constitutional issue involved, in recent years insurance companies have used declaratory actions to avoid paying out settlements. In this instance, the CA hopes to avoid arbitrating grievances that have been filed since the MNG contract officially expired on January 11th.
An "evergreen provision" on the first page of the MNG contracts provides that in the absence of a new contract, the provisions of the previously existing contract roll over indefinitely. The CA has historically abided by the evergreen provision.
Assistant to the publisher Henry Stokes and CA counsel Warren Funk said they want the court to determine exactly what it means when a contract "expires." According to Funk, all grievances have been handled according to contractual obligations up to the point of arbitration, which is what the newspaper hopes to avoid.
A document titled "For Ever Green, an Update from the Memphis Newspaper Guild" states that there have been four grievances filed since contracts expired in January: one for discrimination against union activity; one for disregarding the evergreen clause; one for problems with the community editors agreement; and one concerning an employee who was suspended for two days.
"There will probably be more grievances filed soon," said Newspaper Guild president Mark Watson.
Late last year, the CA hired Nashville attorney Michael Zinser as its lead contract negotiator. That spelled bad news for the MNG. Zinser has built a career representing corporate media entities.
In 1995, Zinser won a case that allowed a Wyoming newspaper to fire two editors because they refused to honor management's "request" that all employees wear anti-union lapel buttons. Zinser also represented the Register-Guard in Eugene, Oregon, in a war of attrition with that paper's union employees. Wages were frozen for three years and union workers grudgingly accepted a contract after a "management-rights bargaining waiver" was removed. That waiver would have eliminated the union's right to negotiate workplace changes. When Zinser was hired to represent the Hawaii Harold-Tribune, Wayne Cahill, the union's administrative officer, told the Pacific Business News, "No employer hires Michael Zinser unless it's their intention to break a union."
According to Watson, there have been tentative agreements on seven contract issues which he described as "minor." The most recent delays in contract negotiation have resulted from disagreements over bereavement leave and from the lawsuit, which won't be settled until December.
"Really, we haven't made much progress at all," Watson said of the negotiations. "And it hasn't been pleasant." According to Watson, the primary disagreements result from the CA's unwillingness to consider the continuation of a longstanding policy of mandatory pay increases that range from 2 to 3 percent a year. "The company has basically taken a radical new approach at the bargaining table," he said.
"[Zinser] is good," Watson said. "And yes, he does brag about busting unions. But we wouldn't be in this situation if [he] hadn't gotten carte blanche from [CA] president John Wilcox. Wilcox has never been at a union paper before, and I have a distinct feeling that he doesn't like working with unions."
Watson is confident that the MNG will win the declaratory action suit. "We'll just have to wait until December to see how the judge rules," he said. "And you know what they say: Justice delayed is justice denied."