Labor Daze
Bad blood boils at the Tribune-Herald

by Leah Gouker

Hawai'i Island's biggest daily newspaper went on trial last month in Hilo for alleged unfair labor practices. The Hawai'i Tribune-Herald faced 13 federal charges for events surrounding the firing of veteran reporters Hunter Bishop and Dave Smith. The seven-day trial, held at the Hilo Federal Building, ended October 31. Administrative Law Judge John McCarrick is not required to issue a verdict by any specific date, but will likely do so within a few months. The ruling can then be appealed.
The Hawai'i Tribune-Herald is owned by Stephens Media LLC of Las Vegas, which owns five Big Island newspapers and the island's only commercial TV station.
The question ultimately being decided is: Can an employee be fired for misconduct if those actions were motivated by the company's violation of the employee's rights?
For the past 50 years, the Hawai'i Newspaper Guild has represented reporters, photographers, advertising salespeople and others at the HT-H; there are currently 55 union members on staff. The Tribune-Herald is one of the very few (and possibly the only) unionized shop in the entire Stephens Media conglomerate of 63 newspapers coast to coast.
Stephens was represented by the Nashville law firm of Zinser and Associates. According to the firm's Web site, they represent "management in the area of labor and employment," and are a top choice for anti-union media companies.
Before the firm's Web site was updated several months ago, the tone was more vehemently anti-labor-boasting that it provides clients with "a union-free environment" in the workplace.

Union not welcome

Events that led to the Guild filing complaints with the National Labor Relations Board were triggered by a confrontation on Oct. 18, 2005, when HT-H circulation clerk Koryn Nako (a union member) admitted union representative Ken Nakakura into the Hawai'i Tribune-Herald building. When editor David Bock discovered the union rep was in the building, he immediately escorted Nakakura off the premises and summoned Nako to his office. Reporter Hunter Bishop, the union's shop steward, attempted to act as a union witness for Nako during the meeting, a right granted by the U.S. Supreme Court (and which is common practice when a union member faces discipline from management). Bock told Bishop it was none of his business, and met with Nako alone.
A week later, Nako was issued a written disciplinary warning for violating the paper's access policy. Bock accused Bishop of being insubordinate, confrontational, rude, and disruptive. He was suspended, and ultimately fired. In the NLRB trial, the Tribune-Herald is charged with failing to provide specific examples of Bishop's alleged misconduct, as well as proof that the policy Nako allegedly violated even existed.
Testimony describing Bishop's behavior is contradictory, depending on each witnesses union affiliation.
Nako testified that Bishop did not yell or act inappropriately. Leigh Critchlow, who has worked at the Tribune-Herald for 33 years, witnessed the exchange. She testified that there was no shouting or other misconduct. She also said that admitting non-employees into the office without managerial approval was common practice.
Margaret "Maggie" Premo, a non-union employee, testified on behalf of management. It was her third day on the job. She testified that in a "short but loud" exchange, she heard Bishop repeating, "You are denying her union rights." Premo said Bock asked Bishop to lower his voice. Premo called the incident a "scary situation," and said she told Bock that she thought Bishop's actions were inappropriate.
Tribune-Herald Production Director Arlen Vierra also witnessed the exchange between Bishop and Bock. Vierra described Bishop's voice as "moderately loud" with his demeanor "red-faced, tense, and angry." The Tribune-Herald's Advertising Director Alice Sledge and Circulation Director William Crawford both testified on behalf of management.
Sledge witnessed the exchange between Bishop and Bock, and prepared a statement for Nako to sign. Crawford was accused of illegally questioning Nako about union activity-a charge he denied in trial testimony. Nako testified that he asked very specific details of Nakakura's business on Hawai'i Tribune-Herald property. Uncomfortable with the interrogation, Nako asked him, "Do I have to tell you?" to which he replied, "Yes."
According to the union, the confrontation was sparked by Bishop, acting as shop steward, protecting Nako's "Weingarten rights." (In 1975 the U.S. Supreme Court ruled [NLRB v. J. Weingarten, Inc.] that union employees have a right to union representation during investigation-related interviews. In 1992 the Clinton administration extended this right to non-union employees as well). Weingarten rights violations are not charged in this case, although the perceived violations are significant.
On October 19, Bock suspended Bishop indefinitely without pay. By the end of the month he was fired. Four months later, Bock sent Bishop a letter additionally attributing his termination to low productivity. At the trial, Bock testified that a review of Bishop's disciplinary record contributed to his decision to end Bishop's 16 years at the Tribune-Herald.

On tape

In a separate incident five months later, after 18 years as a staff writer for the Tribune-Herald, union member Dave Smith was suspended indefinitely without pay on March 9, 2006 for secretly recording a disciplinary meeting between himself and Bock six days earlier. The taping was legan Smith maintains he did nothing wrong. Since 2004, Smith had been also part of the union's bargaining team, which has been in on again/off again, sometimes contentious, contract negotiations with HT-H management for three years. Bock testified that Smith's union activities had nothing to do with his termination.
Smith recorded the meeting with Bock after management denied fellow reporter Jason Armstrong's request for union representation during a disciplinary meeting. Smith considered this a violation of Arm-strong's Weingarten rights, and assumed that he would be denied a witness as well. Smith testified that he brought the recorder to ensure an accurate record of the meeting, because he was "very concerned" that Bock might fabricate an insubordination allegation as a result of the meeting.
Before entering the meeting with Bock and Associate Editor Richard Palmer, Smith's request for a union representative was denied, and he was issued a verbal warning for sub-standard productivity levels.
The Hawai'i Tribune-Herald defense is that, although there was not a specific policy banning secret recordings, it was not permissible. They maintain that policy could not be created for every possible action. Zinser said that recording an employer goes against "plain old common sense."
Bock testified that secret recordings are "wrong and unacceptable" and have "a chilling effect on communication." Bock said he considered the secret recording the "worst act of disloyalty" he had ever ex-perienced in his professional career.
Smith said that in a meeting on March 9, 2006, Bock called the secret recording defiant, malicious, and illegal.
On April 11, 2006, Bock provided Smith with a three-page letter detailing the Tribune-Herald's investigation of his alleged misconduct. Attached was an "acknowledgement form" for Smith to sign. Smith testified the statement the company prepared had "blatant errors," promised no more secret recordings, and admitted "serious misconduct." According to Smith, Bock said the findings of the investigation were non-negotiable. Smith refused to sign and was fired on April 26, 2006.
Zinser called to the stand Tribune-Herald freelance writer Karen Welsh, (who is not a Guild member). She testified that when she saw Smith planning to record the meeting, she was "completely disgusted" by what she called his "junior-high antics." She informed Bock that he was recorded on March 3, 2006.
Tribune-Herald staff reporter Peter Sur, a union member, also testified. He was suspended indefinitely on March 9, 2006 for loaning Smith the digital recorder used to secretly record the meeting with Bock. Sur was reinstated after missing 13.5 hours of work.
Sur testified that he did not think that a secret recording was wrong or grounds for disciplinary action. He testified on March 9, 2006 meeting, Bock and Palmer made it "abundantly clear" that secret recordings are against HT-H policy. Sur was unaware of any such policy until that meeting, and testifed that Bock accused him of unethical behavior. Zinser has earlier stated that Sur's apologetic conduct at the meeting qualified him for reinstatement.
HT-H staff photographer William Ing took the stand. He was questioned by Bock on March 9, 2006, because of his comments to Smith on March 3. Ing said he advised Smith to conceal the recorder well. Ing was not disciplined for his involvement.
NLRB lawyers called Marie Ella Burns. Burns has worked in the Hawai'i Tribune-Herald advertising department for over 16 years, and was an active union member. On March 9, 2006, she acted as a union witness for Smith and Ing, in the two separate meetings with Bock and Palmer.
In the beginning of the meeting with Smith that day, Burns testified that Bock seemed "agitated" and "flushed." Burns testified that Bock told Smith there are laws against secret recordings, and the fact that he hid the recorder shows his guilt.
Burns also witnessed the meeting with Ing, Bock, and Palmer. Burns testified that Ing told Bock that he did not think Smith was wrong.
According to Burns, Bock and Palmer, respectively, told Smith and Ing that there are some cases when Weingarten rights to union representation apply, but not always-even when disciplinary action is taken. Bock said that members do not understand Weingarten rights.

Disloyalty or self-protection ?

Chris Loos, now communications specialist for the Hawai'i County Police Department, was a Hawai'i Tribune-Herald staff reporter from 1988 until 2006. Her beat: cops and courts. Loos witnessed Smith planning to secretly record Bock on March 3, 2006. She testified that on that day, she encouraged Smith to use the recorder.
Loos said that when she arrived at work on March 9, reporter Jason Armstrong told her that Peter Sur had been indefinitely suspended, and Smith was next. Bock called Loos into a meeting. She asked Bill O'Rear, the Tribune-Herald sports editor, to act as her union witness. Palmer was also present at the meeting.
Loos said that Bock asked her if she had ever recorded a source without informing that person. When she replied in the affirmative, Palmer said, "That's illegal." Loos told Palmer it was not illegal, and he insisted it was. (In fact, secret recordings of conversations are legal in the state of Hawai'i, as long as one of the parties being recorded knows the tape is running.)
Loos testified that Bock said she "conspired to be disloyal." She said his tone was "very argumentative," that questions were repeated, and he often misstated her words.
O'Rear testified that in the meeting with Bock and Palmer, Loos said she believed Smith's actions were appropriate because he thought his Weingarten rights were being denied. O'Rear said that in response to Bock's questions, Loos said she is familiar with Hawai'i's wire-tapping laws, and understands Weingarten rights. According to O'Rear, Loos did not ask Bock how he discovered he had been secretly recorded.
The union members were dismissed in separate incidents of alleged misconduct; they believe they were to prevent violations of their federal rights by management.
Bock did not answer for his conduct on the witness stand, but defended his decision.
"We're not relying on a statute or policy," he said. "It's just common sense."
If the judge determines that Bishop's and/or Smith's actions constitute misconduct, than a ruling on whether or not that misconduct is grounds for termination, despite the lack of policy regarding such actions, will likely result.
Wayne Cahill also testified. He has been the Guild's administrative officer since 1996. Cahill represented Smith by corresponding with the management for him since the March 3, 2006 incident.
On March 27, Cahill provided Smith union representation at a meeting with Bock and Crawford at the Hilo Hawaiian Hotel. Cahill testified that Bock told him he was not allowed to speak on Smith's behalf. Cahill said he responded that he could, and Weingarten rights entail more than note-taking.
Cahill also testified that he asked Bock for a copy of the policy that prohibits secret recordings. According to Cahill, Bock said that there was no such policy; Bock used the example that even though there is no policy prohibiting Smith from slapping him, it nonetheless was not allowed.
The Tribune-Herald is also charged with violating the NLRA provision that protects a member's right to wear union insignia. In the wake of the firings, union members at the Tribune-Herald began wearing "Bring Hunter Back" buttons after Bishop's termination, and red armbands after Smith's suspension-until publisher Ted Dixon issued a memo ordering them to stop.

What next?

Both sides have until Dec. 5 to submit briefs to Judge McCarrick (that 35-day limit could be extended). There is no time limit for McCarrick to issue a ruling.
The Board's order has two objectives: to prevent and remedy unfair labor practices. Remedies may come in the form of reinstatement and/or back pay.
During the hearing, Tribune-Herald attorneys argued that Bishop's reinstatement would be problematic because of certain "disparaging" comments published on his blog (hunterbishop.com).
Representatives of Communication Workers of America, Local 14921 and Honolulu Typographical Union, Local 37 observed the hearing. CWA Local 14921 has members employed at the Tribune-Herald. President Jerry Ahue said that he has concerns about the Tribune-Herald's "arrogance and practices." Although no actions against their members have occurred, Ahue said he worries they may be "targeted" next.
This hearing comes after years of hostile relations between the Guild and the Tribune-Herald management. Guild members went on a contract extension in 2003; that extension expired on Dec. 31, 2004. Guild members have been working under month-to-month contract extensions ever since. Bishop said the Tribune-Herald management's determination to fight every grievance "tooth and nail" has led to low morale in the workplace.
Mike Burrell, a national representative for the Newspaper Guild, was present every day of the hearing. He has been assisting the Hawai'i Newspaper Guild with bargaining since Dec. 31, 2004. Burrell said that employees are waiting to receive a fair and equitable contract. He said based on the management's actions, there is still, "a long ways to go."
In recent years, the newspaper industry has changed from being primarily family-owned empires to corporate big business. According to Burrell, editors and publishers are under extreme pressure to fulfill investor's expectations, a task that is more difficult than ever because of free sources of news on TV and the Internet. Burrell said that this pressure for profit return filters down, and some employers may want to be relieved of certain restrictions of a contract. Typically, union contracts secure higher wages and benefits.
Bishop said that problems began when Stephens Media bought the Tribune-Herald. He said the change brought a "tycoon sentiment, doing everything they can to weaken the union." Bishop said that the union has provided a better standard of living for its members, and fair wages provide a public service to the community. He explained that when the Hawai'i newspapers' profits go towards its mainland owners instead of employees, the money goes out of circulation on the Big Island and into Nevada. Bishop said that this type of arrangement does not give back to the community-it just takes money out.
Stephens Media, LLC, is a Nevada-based company that owns 63 publications in nine states. On this island they own the Hawai'i Tribune-Herald, West Hawai'i Today, Big Island Weekly, North Hawai'i News, Westside Weekly and the recently created Hilo TV station, KHHB-TV.
Bishop has since become a full-time unit representative for the Hawai'i Newspaper Guild office in Hilo. Smith is now a freelance writer. (Since they were fired, both have written for HIJ.

Leah Gouker is a regular contributor to HIJ. She is not now, nor has she ever been, a member of the Hawai'i Newspaper Guild, but was hired by them as an independent contractor to cover the NLRB vs. Hawai'i Tribune-Herald trial. She attended every minute of every session. Read her full account of the proceedings at holomua.org.

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