Thomson Reuters’ lead lawyer – the one behind the illegal impasse that enabled management to unleash its pay-cutting work rules, health care increases, benefit cuts and the elimination of company 401(k) contributions – is losing again.
We’ve told you how the company's lawyers lost in federal court when we defended our right to arbitrate disputes. Now a National Labor Relations Board administrative law judge has ruled against the company's lead lawyer in a case involving an unrelated union and a different company, but the same lame strategy and high-handed tactics he is using with us.
The two companies and the two groups of workers are vastly different. At Thomson Reuters, we’re mostly journalists and technicians at a global multimedia powerhouse. At Daycon Products, the employees are drivers, repair people and warehouse workers based in Upper Marlboro, Maryland, just outside Washington, D.C. About 30 of them have been on strike since last April. What both cases have in common is the lawyer, Jay Krupin, who represents management at Daycon and at TR.
In his Feb. 15 ruling, Administrative Law Judge Joel Biblowitz ordered Daycon to reinstate the striking workers, make them whole for all lost pay and benefits and rescind its unilaterally imposed work rules. Krupin seems to have used the same limited – and losing – playbook for Daycon that he used for Thomson Reuters. A look Joel Biblowitz’s ruling shows why.
ANOTHER CASE ABOUT ILLEGAL IMPASSE
Like ours, the Daycon workers’ case features impasse as a central issue. At Daycon, the two sides were at the bargaining table when Krupin and his team said they needed to “go down the hall” to “crunch the numbers” on a recent union proposal. Instead, they left the building without informing the union negotiators and declared impasse later that day.
On behalf of Daycon management, Krupin had proposed a “performance-based” system and a two-tier wage scale where more junior employees would never catch up to senior ones. The union at Daycon, a unit of the Teamsters, saw these as non-starters, but came back with counter-proposals. Krupin et al just didn’t want to hear them.
If these terms sound familiar, they should. So-called “performance-based” pay and a system that has the potential to strand the newest workers at the bottom is something Krupin has tried at the behest of Thomson Reuters managers too.
Krupin presented a chart in the Daycon talks with union and management bargaining positions on it. Without changing management’s position, Krupin insisted that the union do so, so they could fill in the blanks. Krupin tried the same flimflam in our talks, most recently on Jan. 6 when he gave Guild negotiators a chart instead of a counteroffer. And just as he did in our negotiations, he gave Daycon workers what he called a “best offer,” not a “final offer” – suggesting there was room to negotiate, but refusing to do so.
But the central issue, for us and the folks at Daycon, was the impasse declaration. Without impasse, the two sides continue to bargain. With impasse, the company imposes its conditions, which is what occurred in both cases. In our case, Krupin and Co. failed to provide information the Guild needed for bargaining and to which we are legally entitled.
The Manhattan office of the NLRB is still investigating charges that we believe will lead it to issue a complaint , like an indictment, against Thomson Reuters for its illegal declaration of impasse and imposition of work rules. Once a complaint is issued, the case will be set for trial before an administrative law judge, like in the Daycon case.
The Daycon case, which was handled by the NLRB’s Baltimore office, is much further along. In that case, the NLRB even asked a U.S. District Court judge to reinstate the company’s striking workers.
While Daycon, has a right to appeal Biblowitz’s decision, we think his legal analysis is sound and gives us hope. His ruling favor of the union has some instructive words on what impasse is, and what it isn’t:
“The Board does not lightly find an impasse. It requires that the parties must have reached ‘that point in negotiations when the parties are warranted in assuming that further bargaining would be futile.’ Futility is what must appear, not some lesser level of frustration, discouragement, or apparent gamesmanship.”
Another point in the ruling: labor and management both must agree there’s nothing more to talk about. When Thomson Reuters managers declared impasse on Jan. 19, 2010, they had previously told Guild negotiators to check their calendars for further bargaining dates, indicating they figured there was room for discussion. (At least they didn’t get in their cars and sneak away, as they did at Daycon.)
Biblowitz made clear that “There is a big difference between hard bargaining and impasse … if either negotiating party remains willing to move further toward an agreement, this would support a finding of no impasse.” The burden of establishing an impasse rests with whichever party declared one, according to the judge’s ruling. In the Daycon case, which has many similarities to ours, he found the company didn’t do this.
There were also some choice words from the union negotiator at Daycon responding to Krupin’s letter declaring impasse:
“Your latest letter is perhaps the best piece of fiction I have read in quite some time. As usual, it contains numerous inaccuracies and misstatements …You can unilaterally declare whatever you want. We all know the actual facts.”
The union workers at Daycon know the facts about Krupin and their company’s management. And we know the facts about Krupin and Thomson Reuters management – except one. Who hired this guy?