Strike replacement law precedent p.8

By: Mark Fitzgerald Labor board backs reporter who refused training for possible walkout

A systems operator at a 31,000-circulation daily who would not train to be a strike replacement has broken new ground in labor law.
In 1997, Dwight Biermann was a rising star not only at The Herald-Palladium in Benton, Mich. but throughout the Hollinger International group. Then he refused to train as a replacement worker for a possible strike at the chain's U.S. flagship, the Chicago Sun-Times.
"While I enjoy my position," Biermann wrote publisher David Harrison, "I cannot reconcile the idea of being a scab with what I was brought up to believe in and stand for."
Biermann was fired an hour after delivering that July 24, 1997 letter.
The threatened Sun-Times strike never came to pass.
Biermann's firing, however, is setting a new standard for what constitutes a sympathy strike. For what appears to be the first time, the National Labor Relations Board is ruling that refusing to train for a strike is as much a so-called "protected activity" under labor law as refusing to cross an actual picket line to become a replacement worker.
The ruling, issued Dec. 17 by administrative law judge Robert T. Wallace, is a new speed bump to newspapers using employees from their other papers as replacements during a strike.
"I let the Guild take the case?they basically had to talk me into it?in the hopes it would protect people in similar situations to mine," says Biermann, who now runs the computer system for the State News student newspaper at Michigan State University. "The fact that the government is backing my decision ?that is kind of cool."
Way cool, says Ken Edwards, attorney for Chicago Newspaper Guild Local 71, which brought the case against Hollinger.
"Now we can go to a chain's satellite newspapers and say, 'You don't have to train for a strike.' I think it gives us another line of defense," Edwards says.
Hollinger's attorneys in the case, Richard Pincus and Jan Rauen of the Chicago firm Fox & Grove, did not return phone messages for comment on whether the chain intends to appeal the ruling.
A management-side labor attorney who was not involved in the case, L. Michael Zinser, of the Nashville firm of Zinser & Patterson, says the ruling follows a recent NLRB pattern.
"The NLRB in its current composition has been very aggressive in terms of an expansive reading of what is considered to be inside 'protected concerted activity,' " says Zinser. "Without having read it, it's hard to comment, but very possibly it may be precedent setting. "Remember, though, that these things ebb and flow. During the eight years of the Reagan administration, the NLRB took a quite different view."
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