US arbitrator rules against Thomson Reuters in PIP case
Monday 19 November 2012
In the first of more than two dozen challenges to Thomson Reuters' use of performance improvement plans to discipline employees, a US arbitrator has ruled that editorial managers violated the company's contract with The Newspaper Guild of New York when they disciplined a reporter for poor job performance.
Arbitrator Carol Wittenberg sustained a grievance filed by the Guild, concluding that language added to the union’s new contract with Reuters 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 a binding 18-page decision. The ruling was dated 8 November and received by the Guild 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,” a union statement said after the ruling. The total includes eight who were fired and nine who left voluntarily. PIPs were later lifted from 10 others.
The New York-based reporter whose disciplinary case came before the arbitrator 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,” the Guild said. “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.
In September, with the ruling already pending, Editorial managers fired the reporter. The Guild said the ruling undermined management’s justification under the contract for having just and sufficient cause to discipline and terminate the reporter. She did not order the company to reinstate the reporter, an option not available to her.
The Guild has taken up the cases of all of 32 PIP targets, except for the nine journalists who left with voluntary separation agreements that rule out litigation.
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”.
“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. As such 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 do not discipline the employee for performance that occurred during the PIP period, she added.
The Guild said Thomson Reuters employees who are members of the union and have been targeted by PIPs this year are older and longer-serving than others who have not 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 the United States have also been targeted.
It added: “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.” ■