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.”

E-mail: davis@memphisflyer.com