No Free Lunch Hour

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Should reporters be subject to their employers' rules when they're not working

Windsor Star editor Carl Morgan and reporter Alan Abrams were two blocks
apart when they spotted each other that lunch hour in March 1989. Abrams,
walking a CBC radio picket line, knew he’d been caught in the act. It was an act
that would have potentially profound consequences for Canadian journalists.
“Oh shit. Here’s Carl, and he sees me,” he thought, as Morgan steadily approached.

Abrams stood his ground. Morgan’s eyes were on him, and they never left-not for a secondas the editor continued toward him. Soon he was directly across the street, and Abrams thought that he’d walk straight into traffic if he crossed, he was staring so hard. But Morgan didn’t cross. He kept walking and, one block down, turned a corner and disappeared from sight, on his way back to the Star.
Abrams and labor reporter Don Lajoie, who hadn’t seen Morgan until he’d passed, headed back to the office immediately.

Abrams sensed trouble, and his instincts were right. His lunch-hour picket has had enormous consequences. Nearly three years later, the Star and its unionized employees were still awaiting the decision of an arbitrator on the rights of papers to limit the outside activities of their staff.

The case has been at the forefront of the journa1istic ethics debate because it could decide for the first time in Canada whether the trend toward limiting the civil rights of reporters in the name of journalistic integrity will continue.

Abrams, who rarely wrote about labor issues, was surprised that March afternoon when then metro editor Kevin McIntosh told him that he had been in a conflict of interest and that the paper could no longer send him out to cover related stories. On his way out after the meeting with McIntosh, Abrams stopped by the desk of Julie Rowe, then-president. of the Windsor Newspaper Guild, told her what had happened, and asked her to look into it.

Rowe met with Morgan and managing editor Jim Bruce later that afternoon. The managers reiterated the view that what Abrams and Lajoie had been doing constituted a conflict of interest, and that the fact that they did it on their lunch hour was not at issue. Julie Rowe did not agree. She said that Abrams and Lajoie, as well as a group of about six other Star employees (herself included) who had been at the CBC television station at the same time, were entitled, on their own time, to show support for their CUPE colleagues, who were striking to protest funding cutbacks that they feared would lead to the station being closed, and their jobs being lost.

Not surprisingly, the meeting did not produce a resolution to these two conflicting points of view, the implications of which are vast.
Should reporters be forced to steer clear of any form of activism or public involvement in their free time? Several recent cases in the United States point to a trend toward increased control over reporters’ outside activities. In a bid to avoid even perceived bias, newspapers are increasingly clamping down on all kinds of behavior by journalists-behavior that most citizens in a democratic society take for granted. Should reporters be allowed to take part in pro-choice or antiabortion rallies? What about peace marches, gay and lesbian parades, anti-violence or anti-racism rallies? Should they be allowed to canvass on behalf of political candidates? The Windsor Star case could set a new precedent for deciding whether journalists must give up their right to take part in such activities.

Right from the start, the lines were clearly drawn. In a memo dated March 16th, Julie Rowe stated the guild’s position for the record: “The guild believes its members have the right to do whatever they please… on their lunch or time away from work. To suggest that a reporter or editorial employee cannot do his or her job because they have shown support for members of another union is unreasonable. Our reporters feel their integrity is being questioned by your stance on this issue and feel they are professional enough to put personal biases aside in order to cover any assignment given them.”

In a March 21st memo signed by Carl Morgan, management replied: “What is at issue is recognition of the importance for active, working journalists to avoid becoming involved, as third-party participants, in events that we have collectively undertaken to report on as impartial, arm’s length observers. If we are to maintain the position of
disinterested observers, it is absolutely imperative that we do nothing to erode that role…that trust in the eyes of the public.”
The idea that newspapers have an obligation to provide fair and impartial news stories to their readers is not new. In fact, for most of the twentieth century it has been the accepted moral and ethical foundation of the profession. Few newspapers, however, have written policies specific enough to cover every threat to this impartiality. Lorne Slotnick, former labor reporter for The Globe and Mail and currently on staff at the Southern Ontario Newspaper Guild, says that whether or not a written policy exists depends on the size and culture of each organization. Some papers, like The Toronto Star, have comprehensive policy manuals dealing with almost all possible conflicts of interest. But most, such as the Kitchener- Waterloo Record, if they have policies at all, deal only with the more black-and-white issue of financial conflicts of interest, like reporters accepting gifts or paying for information from sources.

Slotnick says that even if a paper does publish a written policy, that does not make it law in the guild’s view. So, as in the Windsor case, the problem is often one of interpretation.

Jim Bruce, managing editor of The Windsor Star, says that although the paper did not have a policy manual at the time the dispute began, the contract between the paper and its guild employees did address the issue of conflict of interest. The clause in question reads: “Employees shall be free to engage in any activities outside working hours unless such activities are demonstrably in conflict with their duties and responsibilities as employees of the Employer.” Bruce says it was up to union leadership to make sure its membership knew what the clause meant. The union contends that the clause, when negotiated, was intended to prevent Star editorial staff from freelancing for competing organizations, not participating in non-journalistic activities on their own time.
After the Alan Abrams incident, the Windsor guild and its members didn’t need much urging to show management how they felt about this issue. On the weekend between the posting of the Rowe and Morgan memos, more than 40 people attended a previously planned guild membership meeting at a downtown Windsor hotel. But normal business took a back seat to the events of the preceding week, and it was decided to stage another picket the following Wednesday to protest the Star’s response.
Approximately 40 members of the guild, which includes circulation as well as editorial and clerical support staff, split up into two groups and spent their lunch hour picketing

both the CBC radio and the CBC television stations. They carried signs that read “GUILD SUPPORTS CUPE” and “WINDSOR GUILD SUPPORTS CHANNEL 9.” Three Star reporters were filmed marching behind Julie Rowe as she was interviewed on the picket line: two general assignment reporters-Doug Williamson and Alan Abrams-and the paper’s then-environment reporter, Chris Vander Doelen.

When Star management saw members of their staff on television, on the picket line of another union, there was no question that something had to be done. “Management is often accused of being too vague about what their expectations or their policy might be,” says Jim Bruce, “but we felt that Carl’s memo had clearly enunciated our position on this issue. We made the decision, after seeing them on television, to issue letters of reprimand. We wanted to send a signal that this was a serious matter, that the position that was expressed in the letter was one that we were going to apply to members of the staff.”

Julie Rowe was not disciplined because management felt that as an editorial assistant she was not in a position of conflict or bias. The other three each received a formal letter of reprimand, stating that they were in violation of the collective agreement. From this time on, Williamson, Abrams and Vander Doelen would be known jokingly by their colleagues as “The CBC Three.”

“The CBC Three” may sound like a group of organized radicals, but really they are just three people who by the luck of the draw have been called upon to defend a principle. All three were long-term Star employees. Abrams had worked there, full-time or part-time, for nine years. He has since moved on to The Toledo Blade. Vander Doelen joined the paper in 1982 and plans to stay. Williamson, with the Star since 1976, has been promoted since the incident. (He is even described by Vander Doelen as a “white-haired boy” in management’s eyes.) All three describe their actions as part of a struggle over the right to control journalists’ social actions.
When the guild learned of the letters of reprimand, they immediately decided to challenge them. The ensuing notice of grievance, dated April 14, 1989, alleges that “The Windsor Star, through these letters, has violated several sections of the collective agreement. The Windsor Newspaper Guild views the letters of reprimand as harassment over a legitimate union activity in the employees’ own time and seeks removal of these letters from the employees’ personnel files.” The arbitration hearing took place at the (Compri) Convention Centre, just around the corner from The Windsor Star. In all there were 10 days of testimony between April 14, 1990 and June 17, 1991.

The arbitrator in the dispute was Richard McLaren, a law professor at the University of Western Ontario. His mandate was two-fold. First, he had to interpret the clause in the contract that the reporters allegedly violated-the one about employees avoiding activities that are “demonstrably in conflict with their duties and responsibilities as employees of the Employer.” McLaren’s other task, which he referred to as “secondary,” was to decide whether or not the Star had just cause in issuing the reprimands.
McLaren heard arguments from Stephen Krashinsky, the Toronto lawyer representing the guild, and Len Kavanaugh, the local attorney acting for the Star. In addition to questioning the people involved, each lawyer also called on an “expert witness” to give testimony about conflict of interest and how it should be defined. It was their testimony, more than anything, that attempted to express the larger issue that McLaren was to decide: the question of a newspaper’s integrity versus its employees’ civil rights. The Star’s witness, John Miller, would regulate the behavior of journalists through written policies to avoid even a hint of bias. The guild’s witness, Anthony Weste11, would trust journalists to lead full lives as citizens but still report in a fair and balanced manner, as professionals.

Miller, chair of the Ryerson School of Journalism, spent most of his career at The Toronto Star.

While holding his last position at the Star, as senior deputy managing editor, Miller rewrote the paper’s extensive policy manual, one of the few that attempts to address the issue at question in The Windsor Star case. Two clauses in the policy manual give an indication of his stand on this issue. The first reads: “Care should be exercised to avoid open endorsement of any political candidate or cause, since this might reflect on the newspaper and employee.” And the second says: “Staff members should not hold office in community organizations involved in activities about which they may write or make editorial judgments. This includes fund-raising or public relations work, and active participation in community organizations and pressure groups that take positions on public issues.”

The Windsor Star case is not the first to address this issue. The Toronto Star applied that second clause in a similar case in 1986-and won. In that case, a general assignment reporter named Susan Craig was challenging the paper’s attempt to prevent her from heading a labor organization called Organized Working Women, or giving her another job until her term as president expired. The paper’s concern was not one of real bias, but rather of the possible perception of bias. The arbitrator in the case ruled that the paper did have cause for concern, and was justified in not allowing her to cover labor stories.

Miller resisted defining conflict of interest at the Windsor arbitration hearing, because, he says, “every situation is different.” Instead, he based his testimony on the all-important issue of perception.

Miller doesn’t see this as a case of infringement of civil rights. And he finds the guild’s assertion that reporters should be allowed to do whatever they want on their own time “untenable.” “If you had to start keeping lists of ou tside invo1vements, you would lose the power to assign staff. And that’s not fair to management,” he says.

“If we believe that it’s a professional calling to be a journalist, then there are certain things that we cannot do, like showing support for one side in a contentious issue,” Miller says. “A newspaper’s currency is trust. Anything that undermines that trust should concern everyone, including the guild.”

Guild witness Westell, director of the School of Journalism at Carleton University, characterizes Miller’s view as old-fashioned and outdated. “This is a policy that many papers have followed for a long time, but I feel that !;; times have changed and that now there’s a great deal more attention being paid to individual rights,” he says. While he agrees with Miller that a precise definition is impossible and” probably not desirable, Westell feels it is unreasonable to say that reporters should be asked to surrender many of their civil rights, such as their right to take part in a public debate, or to become involved in public life, just because there is a chance that they might, at some stage, have to cover a related story.

He believes that the test should not be whether there might be a perceived conflict, but what in fact the reporters actually wrote. If they wrote stories which were fair and balanced, then that ought to be enough. In any case, he says, “There’s not much evidence that I’ve ever seen that the public cares about this one way or another.”

This central issue of trust and objectivity is at the heart of the disagreement between Miller and Westell. Says Westell, “I don’t really believe that there is such a thing as objectivity. Most journalists are members of a trade union, and that’s known.”

Miller likens Westell’s argument that “objectivity doesn’t exist anyway” to “saying that everyone knows there’s a crime rate, so let’s do away with the police force. ‘Let’s give up.’ That’s in effect what he’s saying.” Only one thing was certain in the
Windsor Star case: neither side was giving up-or giving in. Despite the fact that the arbitration process cost both sides thousands of dollars in legal, arbitration, and witness fees, and wages for time spent at the hearing (the guild paid for its people), both sides were seeing this through to the end. And everyone involved says they’d do it over again.

Says Vander Doelen, “I was fuzzy on the issue before. But after sitting through the hearings, I’m now certain that we did the right thing. Because no one else is going to defend our craft but other journalists. I have to defend my craft because no one else will.” The mere thought that the paper was in the right, he says, makes him feel “the way anyone would if they had some of their freedom taken away against their will. It’s a horrible thing to lose freedom.”

The ultimate significance of this case does not lie in what happens to the people involved.

As Williamson points out, it’s really a moot point now; the CBC station has closed and the letters of reprimand were removed from the files last spring. What is important is what the arbitrator’s ruling in the Windsor Star case means to the freedom of journalists across Canada.