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News-Press fends off government's latest attack : NLRB denied a rehearing by the 9th Circuit

October 22, 2010 5:49 AM


The National Labor Relations Board lost another round in its fight with the News-Press after the U.S. Court of Appeals for the 9th Circuit denied a petition to rehear a motion to immediately reinstate employees discharged for union activity aimed at pressuring management to give up editorial control over news reporting.

Seeking a rehearing by the full court of a three-judge panel's decision upholding a federal judge's ruling that forcing the rehiring of eight employees would violate owner and co-publisher Wendy McCaw's First Amendment rights was NLRB Los Angeles director James McDermott.

Mrs. McCaw and co-publisher Arthur von Wiesenberger said the denial of Mr. McDermott's latest petition should send a message.

"This marks the third time we have won in these ongoing attempts to take our First Amendment rights -- in the federal court and now in the Ninth Circuit Court twice. It makes one wonder how many times you have to prove your case until an adversary gets the message?"

"We sincerely hope this marks the end of a four-year jihad against the Santa Barbara News-Press by James McDermott and the Teamsters. It is time they stop their frivolous and malicious lawsuits to take over our rights as a newspaper and recognize that justice has been served three times -- and now they are out."

Michael Zinser, one of the attorneys representing the paper, said union tactics ended up hurting the union cause.

"The principle issue is that the organizing campaign had as its central goal taking over the content of the News-Press, and that posed serious risk of infringing on the owner's First Amendment rights," said Mr. Zinser.

"It's an important case for all newspapers who could face that kind of organizing drive, where one of the goals is hijacking the content of the newspaper."

Joining the News-Press in its case were media companies controlling more than 100 U.S. newspapers, from the Santa Maria Times to the Las Vegas Review-Journal to USA Today -- all filing friends of the court briefs opposing the NLRB's appeal.

Friends of the court briefs were also filed by the Newspaper Association of America, which supports newspapers' interests in First Amendment issues.

Included in the briefs were court transcripts that show the union organizing campaign was not about money, but, rather, a desire by the employees to write what they want, when they want.

The decision to deny Mr. McDermott's petition for an en banc rehearing was entered Thursday.

Judges Richard R. Clifton and Milan D. Smith voted to deny the petition. Judge Michael Daly Hawkins recommended granting the petition. A judge of the court called for a vote on the petition for rehearing by the full court.

A vote was taken, and a majority of the active judges of the court failed to vote for a full rehearing.

"At this point, it's over," said Mr. Zinser. "The next thing for (the government), if they choose, is to petition the Supreme Court."

It was Judge Clifton and Judge Smith who in January made up the 2-1 majority upholding the May 2008 order by U.S. District Court Judge Stephen V. Wilson that granting the injunction posed significant risk of infringing on the constitutional rights of News-Press parent company Ampersand Publishing LLC.

"The First Amendment protects the right of a newspaper to control its content," Judge Clifton wrote. "The main thrust of the employees' campaign to secure representation by the Graphic Communications Conference, International Brotherhood of Teamsters appears to have been to block or limit the influence of the owner and publisher of the News-Press over the content of the news sections of the paper and to focus that authority in the employees themselves, as reporters and editors."

The denial of the en banc rehearing does not end the government's case against the paper.

Pending before the NLRB in Washington, D.C., is the recommendation from 2007 by an administrative law judge that the paper reinstate the employees over what the ALJ found were unfair labor practices. When that will be decided is anyone's guess -- and whatever the order, an appeal is likely to follow.

That body has a serious backlog of cases dating to 26 months or so in which it operated with just two members.

President Obama used his recess appointment power to add two members, bringing to four what was intended to be a five-member board.

Meanwhile, the Supreme Court ruled that a panel of two is insufficient to hear cases and the board had to go back and start reconsidering about 600 cases decided in those lean years.

"As I read the recent decisions that come out every week, there is no rhyme or reason as to the sequence they choose," said Mr. Zinser.

"When you think about the length of the (2007 News-Press) hearing -- something like 17 days -- it's a huge undertaking to review all the documents and transcripts and briefs. It's hard to say when they'll make a decision in the case."


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