N.I.C.E. News Alberta British Columbia Manitoba Saskatchewan Alaska Idaho Montana Oregon Utah Washington

Size: px

Start display at page:

Download "N.I.C.E. News Alberta British Columbia Manitoba Saskatchewan Alaska Idaho Montana Oregon Utah Washington"

Stuart Carson
5 years ago
Views:

1 N.I.C.E. News Alberta British Columbia Manitoba Saskatchewan Alaska Idaho Montana Oregon Utah Washington November 2010 President s Message by RUSS DAVIS O ne foggy night at sea the captain of a ship saw what looked like the lights of another ship heading toward him. He had the signalman contact the other ship by light. The message was: Change your course ten Russ Davis degrees to the south. The reply came back: Change your course ten degrees to the north. Then the captain answered: I am a captain, so you change your course ten degrees to the south. Reply: I am a seaman first class change your course ten degrees to the north. This last exchange really infuriated the captain, so he signaled back: I am a battleship change your course ten degrees to the south. Reply: And I am a lighthouse. Change your course ten degrees to the north! This story by Dan Bell illustrates the importance of setting the correct course. As Circulation Directors we face the challenge of setting the course for building readership and audience for our products. For a lot of us this starts with the budget course we outline each year. Most of us have started or finished the 2011 budget that will be our lighthouse for the coming year. Hopefully your course includes the exciting 2011 joint (Cal-West and NICE) conference coming this April in Reno, NV. This joint conference will provide a forum to discuss the challenges and opportunities we face, along with receiving presentations from some of the industries brightest minds. Also, the joint meeting will make it easier for more vendors to attend and opportunities for us to learn about new products and cost saving ideas. Recently I had the opportunity to interview for the Publisher s position at my newspaper. With my publisher retiring, I felt the opportunity to set a higher course was too great to pass up, so I applied. I am grateful I had this chance to share my 32 years of experience with the corporate team. During the interview process I gained a greater perspective of corporate thinking and the challenges we all face. We all have been given a ship in the fleet to run. How we run it depends on the course we set. I m not saving the joint conference in April will have all the answers. I will say that I am glad I had the opportunity to attend a circulation conference most years. A lot of my ideas have come from the associations developed at these conferences and the presentations given by outstanding individuals in our profession. As for my shot at the publisher position looks like another day. Currently I am the interim publisher and I await the opportunity to work with a new captain. I will have my course of action all set to present to him/her and look forward to helping our newspaper set the proper course for Hope to see you in Reno this April. How to reach us Secretary/Treasurer: President: Dale Irvine Russ Davis PO Box 778 Herald Journal La Conner, WA rdavis@hjnews.com nice@galaxynet.com Visit our website at:

2 L. Michael Zinser NICE General Counsel The independent contractor wars continue. This column will report on a class action victory for Publishers Circulation Fulfillment, a Michigan Court of Appeals case involving the Detroit Newspaper Agency, and a successful contract settlement for the Publisher of Hawaii Tribune-Herald. 1. Class action status denied newspaper carriers Class action status was denied newspaper carriers L. Michael Zinser because the U.S. District Court ruled that the critical determinant is the degree to which the reported employer exercises control in fact over the results produced or the means used to obtain them. There would need to be an individualized determination of the degree of control that PCF actually exercised over each of the punitive class members. In trying to prevail in class certification, the plaintiffs relied on the fact that all the carriers signed a form independent contractor agreement. However, the court said that was not dispositive because the agreement, on its face, only attempted to control the end result, not the manner and means of how the result is accomplished. Nothing in the form agreement supports a determination that PCF had a common policy of reserving control over the means the carriers used to complete their deliveries. Finally, the court rejected a claim that training materials for PCF supervisors evidenced control; plaintiffs failed to show that PCF used the training materials in a common way to control the manner and means of delivery of the newspaper carriers. 2. Jury will decide independent contractor issue While delivering newspapers for Detroit Newspaper Agency ( DNA ), defendant Barber ran a stop sign and ran into plaintiff Krywy, who suffered a serious injury. Krywy sued both Barber and DNA for damages from her injury. At the trial level, the judge found that there was no question of fact and that Barber was an independent contractor. DNA was dismissed as defendant. In deciding that there was no question about the independent contractor status, the judge took into account the following facts: The means and method of transportation for delivering papers was left to the carrier; The carrier was permitted to deliver other newspapers at the same time as delivering papers for DNA; The carrier was responsible for providing a substitute rather than DNA providing one; The carrier s contract refers to the carrier as an independent contractor; The carrier is not included in any Company benefit plans; The carrier s contract with the Company provides that the carrier shall indemnify, defend and hold DNA harmless from and against all claims, damages, losses, and expenses... asserted against DNA... by any other person, for injury... arising out of any acts or omissions of the Contractor or the Contractor s agents. Krywy appealed DNA s dismissal, arguing that there was indeed a question of fact as to Barber s employment status, and therefore a jury, not the judge, should make that call. The Michigan Appeals Court agreed. Specifically, the court found that there were questions of fact about the following: The Company owned the delivery route and contracted with whomever it chose once a carrier stopped delivering; New carriers were trained by the Company, not the prior carrier; The Company set forth rules or suggestions to be followed regarding how newspapers should be delivered; When the carriers did not comply with delivery instructions, or failed to deliver a paper,

they were fined a substantial penalty that had to be paid to the Company rather than to the customer whose paper was misdelivered; The contract between the carrier and the Company is at will; All

3 they were fined a substantial penalty that had to be paid to the Company rather than to the customer whose paper was misdelivered; The contract between the carrier and the Company is at will; All billing and accounting is handled by the Company rather than by the carrier; The newspapers are never owned by the carrier, but remain the property of the Company until they are left at the customers premises; The carrier could not cancel a customer for any reason (including nonpayment), without receiving permission from the Company. This court decided that, since there were questions of fact, it was up to a jury, and not the judge, to decide. 3. The wages of patience for Hawaii Tribune-Herald Hawaii Tribune- Herald and Hawaii Newspaper Guild Local reached a new agreement on August 17, The contract covers newsroom, advertising, circulation and business office employees. The negotiations for this contract began on November 30, Significantly, employees received no signing bonus. Nothing was made retroactive. The first year of the contract is a wage freeze. In the second year of the two-year contract, the employees will receive a 1% pay increase. This is the first general wage increase since February 1, The new agreement substantially changes the old. Significant Company gains in contract language include the following: 1. Management Rights The union agreed to a comprehensive management rights article. Management now has the right to unilaterally establish standards of productivity; supervisors have the right to perform bargaining unit work; management has the right to introduce new equipment and processes without bargaining; management has the right to subcontract. 2. Sales Representatives Pay The weekly base for outside and inside sales representatives was reduced. Additionally, a new Legally Speaking continued on page 4

4 continued from page 3 commission plan was instituted with this new contract. 3. Overtime Outside sales representatives are no longer subject to hours and overtime requirements of the collective bargaining agreement, making them consistent with the Fair Labor Standards Act as overtime exempt. 4. Severance Pay In the previous contract employees received severance pay even if discharged for cause. That has been eliminated, and now severance pay is only paid in the event of economic layoff. 5. Sick Leave The number of days of paid sick leave was reduced by 50%. 6. Payroll Deduction of Union Dues (Check-off) This was eliminated from the collective bargaining agreement; it had been in the collective bargaining agreement for decades. 7. Pension Plan The Guild pension plan is in critical status under the Pension Protection Act of Beginning in 2013, contributions to the pension plan must be increased by 3%. Under this new contract, those 3% increases will be funded by a reduction in employees wages. 8. No Strike/No Lockout A comprehensive no strike article was added. This had never existed in prior agreements. This will require Guild Local to cross the picket lines of other unions. 9. Union Access to Property Non-employee union representatives must seek and be granted permission to come onto Hawaii Tribune-Herald premises. In the past, the union has been disrespectful of the private property rights of Hawaii Tribune-Herald. That will come to a halt under this new agreement. 10. Drug/Alcohol Testing The union agreed to a comprehensive drug and alcohol-testing proposal. The company will have the right to require employees to undergo testing if the Company has reasonable suspicion that someone is under the influence. 11. No Secret Surveillance New language states, The Employer shall have the right to discharge any employee who secretly audiotapes, videotapes and/or photographs (with a camera/cell phone or any other device) any employee or supervisor of Hawaii Tribune-Herald.

5 continued from page Notice to the Union Hawaii Tribune-Herald eliminated from the contract a requirement to notify the union two weeks in advance of either layoffs or discharges. In the past, such two weeks notice created disharmony in the workplace. That will not happen in the future. 13. Auto Allowance Eliminated from the contract was a weekly guarantee of $39. Now employees will be reimbursed on a sliding scale based on the price of gasoline and must submit a report to be reimbursed. ENGARD, Frederick L. April 6, 1918 to October 4, 2010 Son of Frederick Engard and Florence Rhinehart of Philadelphia, Fred moved with his parents and older brother, Bob, to Spokane in Starting at age 12, Fred delivered the food section ads to nonsubscribers of the newspaper. By 14 he had his own Chronicle route that started over a mile from where the papers were dropped off. After graduation from Lewis Clark High School in 1936, Fred was hired full time as a subscription crew manager for The Spokesman-Review. He became a district supervisor in 1940 and married Fay Anna Schumaker of Troy, Idaho. Between August 14, 1943 to June 3, 1945 he served as a medic in World War II with the U.S. Army s 70th Artillery Division, spending time in both France and Germany. In 1956, Fred was named Circulation Director for The Spokesman-Review, the Spokane Daily Chronicle and Northwest Farm Magazines, and in 1978 he was appointed Manager and General Agent of the Northwest Farm Magazines. During that time, he also acted as president of the Agricultural Circulation Managers Association and the Pacific Northwest International Circulation Managers Association. Upon his retirement in 1983, after 47 years and 7 months working for the Cowles Publishing Company, he lived an active life walking, gardening, walking, woodworking and walking some more. Over the years he built special memories with his family, taking them to Hawaii every other year, building snow forts for his granddaughters, and once feeding his unsuspecting daughter a chocolate covered grasshopper Hawaii Tribune-Herald never waivered from its goals. Throughout the six-year period, the union engaged in boycott activity to no effect. This included informational picketing, radio commercials, advertiser contacts, etc. The real losers here are the employees. The language that the union agreed to was available to the union years ago. The union stubbornly refused to even consider the language goals of the Company. At one point, management had on the table a potential 5% raise on signing, which included a 3% across-theboard increase and a 2% merit pool. The union not only rejected the proposal, but refused to present it to the employees for ratification. When the recession hit, Hawaii Tribune-Herald withdrew from the table its proposed wage increases. Recognizing the resolve of management to achieve its goals, the union finally gave consideration to management s goals, agreed to them and signed a contract. Editor s note: Hawaii Tribune- Herald was represented by The Zinser Law Firm, P.C. He and Fay celebrated their 70th wedding anniversary on September 2 with Nancy, Jim, Penny and their daughter, Pam, son-in-law, David Forbush, two granddaughters: Lesley Baker and Erin Forbush, and first great-grandchild, Callum. In honor of Fred s request there will be no memorial service. Fred Engard, long-time circulation director of the Spokane (WA) Spokesman- Review, died October 4, He was 92 years old. Active in the Pacific Northwest International Circulation Managers, he served as its president. He was also active in ICMA and served on its Board of Directors from 1976 until 1979.* The information below is from the obituary in the Spokesman-Review, sent by Norm Gervais, a RICMA type who worked with Fred for many years and succeeded him at the newspaper.

Anthony D. Rizzotti. Focus Areas. Overview

Anthony D. Rizzotti. Focus Areas. Overview Shareholder Co-Chair, Healthcare Industry Group One International Place Suite 2700 Boston, MA 02110 main: (617) 378-6000 direct: (617) 378-6009 fax: (617) 737-0052 arizzotti@littler.com One Financial Plaza