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Judge denies newsroom workers' request for reinstatement: First Amendment rights of News-Press publisher upheld by federal judge

SCOTT STEEPLETON, NEWS-PRESS ASSOCIATE EDITOR
May 29, 2008 10:35 AM


A federal judge in Los Angeles has denied a request by the National Labor Relations Board to force the Santa Barbara News-Press to rehire eight newsroom employees discharged in 2007, according to a ruling made public Wednesday.

In an order signed May 21, U.S. District Court Judge Stephen V. Wilson held that granting the injunction sought by James McDermott, the NLRB's Los Angeles regional director, poses a significant risk of violating the First Amendment rights of Ampersand Publishing LLC, parent company of the News-Press.

For more than a year, the newspaper has asserted in briefs, during NLRB hearings and, most recently, before Judge Wilson that a campaign to unionize the newsroom began with certain employees' desire to control the content of the paper. That, according to A. Barry Cappello, managing partner of Cappello & Noel LLP and attorney for the paper, amounted to a violation of Ampersand's constitutional rights.

William Kocol, an administrative law judge who heard an unfair labor practices case against the paper last year and ultimately ruled in favor of the union, found the First Amendment argument lacked merit.

But in his order, Judge Wilson holds that view "erroneous."

"In making this determination, the ALJ did not acknowledge that the union campaign was not simply making general demands to restore journalistic integrity, but making a specific demand related to the content of the News-Press," Judge Wilson reasoned.

Without the National Labor Relations Act "regime," the order notes, the paper could retaliate against such actions through typical disciplinary means.

"The sought after injunction," Judge Wilson continues, "amounts to a state action limiting (the paper's) ability to combat pressure placed on it to limit its exercise of editorial discretion."

In his order, Judge Wilson states Ampersand is correct in asserting that "employees' union-related activity had as a central demand the ceding of an aspect of (the publisher's) editorial discretion."

The judge noted that at a union meeting on July 13, 2006, employees drafted a letter to the paper in which their first demand was, "Restore journalism ethics to the Santa Barbara News-Press: implement and maintain a clear separation between the opinion/business side of the paper and the newsgathering side."

Judge Wilson held that this demand goes to the heart of Ampersand's editorial discretion.

The judge highlighted the words of discharged reporter Melinda Burns, who, during the unfair labor practice hearing last year, testified, "To keep its credibility, a newsroom has to have independence from the editorial side of the paper. . .and not be pressured by the publisher to report (the news) or gather it in a certain way."

To this, Judge Wilson writes: "The quote makes clear what independently is fairly obvious to the Court: the separation of the opinion/business side of the paper and the newsgathering side is a demand related to control falling within the publisher's editorial discretion."

Wendy McCaw, co-publisher of the News-Press, said Wednesday: "This is a great day for the First Amendment and I salute Judge Wilson for upholding our constitutional rights."

When reached for comment, Mr. Cappello stated: "As the News-Press has always asserted, a careful review of the constitutional issues would result in upholding all the actions it had taken. The Union's position has been completely discredited. Some apologies are in order for the hysterical remarks of various media pundits."

As part of its argument for the injunction, the NLRB urged Judge Wilson to heed the opinion of Judge Kocol that there was no potential First Amendment violation at stake and that the employees' effort to enforce a separation between what they see as the two sides of the paper was protected union activity.

Judge Wilson, however, rejects "as clearly erroneous" the ALJ's view "that the Union campaign was not, at least in part, aimed at forcing concessions from (Ampersand) directly related to its exercise of editorial discretion."

In further analysis of the ALJ's findings in the 2007 hearing, Judge Wilson notes that Judge Kocol determined no First Amendment matters were at issue because, as Judge Kocol saw it, disciplinary action taken by the paper was not rooted in Ampersand's desire to maintain editorial control "but merely by general animus toward the Union."

"The Court finds this analysis highly problematic as it rests on a false dichotomy," Judge Wilson writes. "The Union was organized, in part, to affect Respondent's editorial discretion and undertook continual action to do so. It therefore does not seem possible to parse, at least in the manner the ALJ sought to do, Respondent's animus toward the Union generally from its desire to protect its editorial discretion. The motives necessarily overlapped in this case."

Ira Gottlieb, the attorney representing the workers, told the Associated Press he was disappointed with the ruling and hoped the labor board would appeal the decision.

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