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Guild wins challenge to PIP use in discipline at Thomson Reuters

11/19/2012

(Updates earlier version)

In the first of more than two dozen challenges to the widespread use of so-called performance improvement plans as a disciplinary tool, an arbitrator has ruled that Thomson Reuters Editorial managers violated the contract when they disciplined a New York-based reporter for job performance that was addressed in a PIP.

The ruling by Arbitrator Carol Wittenberg, which sustains a grievance filed by the Guild, concludes that language added to the new Guild-Reuters contract last year bars management from disciplining employees for job performance that is addressed in PIPs.

“What the company conceded in negotiations was its right to discipline employees for their failure to achieve the objectives set forth in an individual PIP,” Wittenberg wrote in an 18-page decision dated Nov. 8 that the Guild received on Monday.

The company’s recently installed Editorial management team has flooded the newsrooms with PIPS this year, targeting 32 Guild-represented journalists with them and with simultaneous discipline. The total includes eight who were terminated and nine who left voluntarily. Ten others were later removed from their PIPs.

The reporter whose disciplinary case came before Wittenberg was placed on a PIP in September 2010 and again in May 2011. Those PIPs, unlike the deluge issued this year, did not contain disciplinary language and were not accompanied by simultaneous verbal warnings. This reporter’s verbal warning, which cited a failure to meet the requirements of a PIP, came in September 2011, a couple of months after Guild members ratified the current three-year contract.

Wittenberg ordered the company to expunge the verbal warning. Arbitrators’ rulings are binding and all but impossible to overturn.

JOURNALIST WAS LATER TERMINATED
In September, with Wittenberg’s ruling already pending, Editorial managers terminated the reporter. Although the ruling undermines management’s justification under the contract for having “just and sufficient cause” to discipline and terminate the reporter, Wittenberg did not order the company to reinstate the reporter, nor was that even an option available to her.  

The Guild is grieving and arbitrating the cases of all of 32 PIP targets, except for the nine journalists who left with voluntary separation agreements that rule out litigation. Many cases, including that of the journalist before Wittenberg, involve multiple arbitrations, one for each level of discipline (verbal, written, final written and termination). Each case may be before a different arbitrator.

Arbitrators usually give great deference to rulings that have already interpreted contract language they are being asked to construe, especially those of highly respected arbitrators, like Wittenberg. If management continues to deny the Guild’s requests to reverse all PIP-related discipline and terminations, Wittenberg’s ruling will become a key piece of evidence in all remaining PIP cases.

In her ruling, which relied heavily on statements made and positions taken during bargaining, Wittenberg, rejected management’s claim that PIPs were separate from the appraisal process, or “performance management program,” which the contract says “shall not be used in connection with the discipline of any employee” (Article VII, Section 1(i)).

“The Arbitrator finds that the PIP, if not a ‘substitute for’ is at the very least a ‘supplement to’ the company’s performance management system,” she said. 

A DISCIPLINE-FREE ZONE
As such, Wittenberg said, PIPs must be accorded identical treatment under the contract as a discipline-free zone, as the Guild had contended.

“As company witnesses testified, a PIP is a positive tool to help employees achieve performance levels expected by the company by providing the employee with feedback, guidance and coaching – a positive performance tool,” she said.

Notwithstanding the discipline-free zones of PIPs and the performance management program, Wittenberg said management retained its right to discipline employees, which the Guild did not dispute in this case.

“There is nothing in the new language on performance appraisals that limits the company’s right to discipline or discharge employees, including for poor performance as long as the PIP itself is not ‘used in connection with the discipline of any employee,’” she said.

To discipline an employee for poor performance, Wittenberg said management must first remove the employee from a PIP and base the discipline on performance that was not addressed in the PIP or that occurred after the PIP period. Managers may cite the fact that an employee had been on a PIP if they issue subsequent discipline, as long as they don’t discipline the employee for performance that occurred during the PIP period, she added.

Guild-covered employees targeted in this year’s torrent of PIPs are older and longer-serving than others who haven’t been targeted. Their median service time with Reuters is 21 years, nearly twice the 11.5-year median of other Guild-represented employees, and their median age is 56, versus 46 for everyone else. Several non-Guild journalists and low-level managers, and dozens more outside of the United States have also been targeted.

Several high-profile journalists were among those pushed out of the company because of the PIP assault. But even for many journalists not targeted, the proliferation of PIPs in the newsroom has been an anxiety-producing morale crusher.

 

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