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Federal appeals court hears News-Press case

March 13, 2009 7:27 AM


The 9th U.S. Circuit Court of Appeals is weighing whether eight newsroom employees discharged from the Santa Barbara News-Press should be reinstated.

In May 2008, a federal judge in Los Angeles denied a request by the National Labor Relations Board to force reinstatement. The order by U.S. District Court Judge Stephen V. Wilson held that granting the injunction sought by James McDermott, NLRB Los Angeles regional director, posed significant risk of infringing the First Amendment rights of News-Press parent company Ampersand Publishing LLC.

The NLRB appealed, claiming the employees were wrongfully terminated for union activity and other reasons.

Margaret E. Luke presented oral arguments on behalf of the NLRB on Wednesday in Pasadena. Sri Srinivasan, a partner with O'Melveny & Myers, appeared on behalf of Ampersand.

A decision is expected within 60 days.

The newspaper asserted in briefs, during NLRB hearings and before Judge Wilson, that a newsroom union campaign began with employees' desire to control the content of the paper. That, according to A. Barry Cappello, managing partner of Cappello & Noel LLP and an attorney for the paper, violated Ampersand's constitutional rights.

Judge Wilson based his order on the finding that an administrative law judge acted in an erroneous fashion when he ruled in favor of the union and said there were no First Amendment issues at stake regarding the discharges.

In November 2008, media companies controlling more than 100 U.S. newspapers, from the Santa Maria Times to the Las Vegas Review-Journal to USA Today, filed briefs on Ampersand's behalf opposing the NLRB's appeal. Similar briefs were also filed by the Newspaper Association of America, which supports newspapers' interests in First Amendment issues.

The briefs include court transcripts that the media companies say show repeated occasions throughout the campaign in which the employees were not concerned about money issues, but, rather, sought to take control from the owner and publisher with the goal of writing what they wanted, when they wanted.

An arm of the Teamsters union was certified as the employees' representative on Aug. 16, 2007, a year after the campaign began. A trial before the administrative law judge concluded later that year, and the administrative law judge issued his recommendation to reinstate on New Year's Eve 2007.

The NLRB's Mr. McDermott sought immediate reinstatement of the employees, but Ampersand took its case to federal court, arguing that the administrative law judge was wrong to discount the effects the recommendation would have on the publisher's First Amendment rights.

In his order, Judge Wilson called the NLRB's sought-after injunction "a state action limiting (the paper's) ability to combat pressure placed on it to limit its exercise of editorial discretion."



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