Daily Labor Report ®

NPR’s Union Doesn’t Escape Criticism in Wake of Harassment Claims

Feb. 23, 2018, 11:48 AM

National Public Radio executives aren’t the only ones under fire for fumbling sexual harassment allegations. The union representing NPR staff is also getting flak for not communicating clearly with members about its responsibilities when dealing with harassment claims.

The situation highlights a level of confusion, and at times distrust, about a union’s role when two members are at odds. Typically, the union has to represent both the accuser and the accused, which concerns some employees who see that as an inherent conflict of interest.

Unions sometimes hesitate to take on cases of member-on-member harassment because there’s so much pressure to appear as objective as possible, Lauren Hoye, a partner at Willig, Williams & Davidson in Philadelphia, told Bloomberg Law.

NPR staff members who act as liaisons between the union and its members want clarification on the procedure for filing a claim, particularly if it’s against a fellow member.

Marisa Penaloza, a senior producer on NPR’s national desk, wants to ensure the union speaks to both parties when the accused is also part of the bargaining unit.

“If the union is going to make the case that the harasser, as a member of the union, has the legal right to representation, then the union should actively reach out to the accusers, also union members, if not for representation, at least to get their side of the story,” Penaloza told Bloomberg Law.

More than 400 workers at NPR in Washington are represented by the Screen Actors Guild-American Federation of Television and Radio Artists.

“Members can be disciplined for sexual harassment and the penalties can range from reprimands to expulsion depending on the circumstances,” a SAG-AFTR spokeswoman told Bloomberg Law Feb. 23. The union would hold a disciplinary hearing before it took any action against a member, and the member would have an opportunity to appeal an adverse decision, she said.

But even if SAG-AFTRA kicked out a member, “the union would still be obligated to represent them in the workplace as the exclusive bargaining representative under federal law,” she said.

Report Lays Out Harassment Woes

Penaloza and other staffers spoke at a Feb. 22 meeting of NPR’s board of directors. A report outlining the findings of an independent investigation of sexual harassment at NPR drove the discussion. The meeting ended with public comments from NPR staffers, many of whom described a culture of “simmering resentment” because of a lack of accountability for senior management.

The Feb. 19 report, by Morgan Lewis & Bockius, highlights various instances in which management failed to take disciplinary action against Michael Oreskes, NPR’s former senior vice president of news. Oreskes was accused multiple times of inappropriate workplace behavior.

Investigators found a “very prominent distrust of management at NPR.” One factor is the perception among employees that “HR is secretive about complaints that are made” and not properly disciplining harassers, the report said.

Oreskes was forced to resign from the company in November. At least two other senior NPR employees have been pushed out because of sexual harassment.

Lack of Communication Problematic

Members might not even know they can file sexual harassment complaints with the union, Lori Todd, a SAG-AFTRA shop steward at NPR, said.

The staff and union are working with SAG-AFTRA leadership to ensure members know they can file complaints directly with union lawyers, Todd said. The union also needs to clarify that it is the “expectation for SAG-AFTRA to represent both the accuser and the accused,” she said.

“We understand how upsetting and hurtful that is, so we’re recommending SAG-AFTRA better clarify to all membership what their role in this is,” Todd said.

SAG-AFTRA released a new national sexual harassment code of conduct Feb. 11. It includes a commitment to pursue complaints against fellow members.

If a member files a complaint with the union against another member, SAG-AFTRA gives the accuser a questionnaire seeking details of the allegations, a SAG-AFTRA spokeswoman told Bloomberg Law Feb. 12. A special committee determines if there’s sufficient evidence to act on the claim, SAG-AFTRA said.

If so, there is a disciplinary hearing. If the member is found guilty, that committee decides the penalty, which can be appealed.

Between Rock and Hard Place

Unions are in a tough position as well, Howard Berkes, a correspondent for NPR’s investigations team, told Bloomberg Law.

“You don’t want to create a situation in which an abuser is permitted to leave and then goes somewhere else and be able to abuse again because nobody knows about the previous instances of abuse,” Berkes said. He used to be a shop steward for the union at NPR and has been a union activist for more than 30 years, he said.

So he understands the concern of the union’s possible conflict of interest but thinks handling sexual harassment claims can be done in an objective way, he said.

“Each person can be provided with separate representation and that representation can include attorneys outside of SAG-AFTRA so that everybody involved is assured of complete and fair representation,“ he said.

The best way to ensure neither member gets burned is for unions to do thorough investigations themselves, Hoye of Willig, Williams & Davidson said.

Each case has unique details, but overall unions should see the new emphasis on preventing sexual harassment as an opportunity to advocate for its members, she said.

Union Negotiations Fueled Distrust

NPR’s management is also under fire for its relationship with the union. Contentious contract negotiations between the union and NPR last year contributed to employees’ overall distrust of management, according to the Morgan Lewis report.

Last year was the first time in the union’s 40-year relationship with NPR that a federal mediator was brought in, a staffer told Bloomberg Law in July. Negotiations went down to the wire, and staff threatened to walk out if they couldn’t come to an agreement.

That “left a very bad taste in the mouths of many staff members,” the report found.

In an effort to rebuild trust among employees, NPR is attempting to smooth over its relationships with SAG-AFTRA, an NPR spokeswoman told Bloomberg Law. That includes setting up frequent meetings between union officials and management and delegating a first point of contact for management on all union issues.

“We are also working to ensure that union members are part of decision-making teams on important projects,” she said. Those include employee input on the climate survey of the office and selecting providers for some of employees’ benefits.

The union is satisfied so far with the company’s response to the internal investigation but plans to keep tabs on management, Todd said.

“We’re going to seek them out and really make sure they know what’s going on at NPR and that they have a more active role because there continues to be a lack of trust here,” she said.

To contact the reporter on this story: Jacquie Lee in Washington at jlee1@bloomberglaw.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bloomberglaw.com

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