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News-Press wins major victory in labor fight : NLRB violated First Amendment rights; firings legal

By SCOTT STEEPLETON NEWS-PRESS CITY EDITOR

December 19, 2012 10:11 AM

Striking a blow to the National Labor Relations Board's assault on the First Amendment rights of the publisher of the Santa Barbara News-Press, the U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled that the owner had the right to fire several reporters who made a hallmark of their union-organizing campaign taking over the content of the paper.

As they have in previous cases, the words of former employees were all this three-justice panel needed to rule that the organizing campaign went far beyond permissible activity regarding wages, hours and working conditions and instead was focused on employees controlling what was put in the News-Press.

"The First Amendment affords a publisher - not a reporter - absolute authority to shape a newspaper's content," Senior Circuit Judge Stephen F. Williams said on behalf of the court, reversing a decision of the NLRB that the discharge of eight employees, among other allegations, violated the National Labor Relations Act.

The fight dates to 2006 when Wendy McCaw, co-publisher of Ampersand Publishing LLC, tried to address what she saw as biased reporting. Instead of making changes, some editors walked out - and some reporters went with them.

Others stayed on and started organizing with an arm of the Teamsters to keep ownership from having a hand in content decisions. Their first demand was restoring what they saw to be "journalism ethics."

They also engaged in a campaign of public disparagement that included urging people to cancel their subscriptions, and some were discharged over this.

One of the most vocal of the discharged employees, reporter Melinda Burns, ended up being the one who probably did more to bring to light the flaws of their campaign, using at least one public forum to describe her remarks as being "on behalf of a majority of newsroom employees who desperately want to be able to practice our profession in an atmosphere of ... journalism ethics...Above all, we hope to restore the News-Press as a place where openness and fairness in reporting - the foundations of a free press - will again flourish and thrive."

Another vocal discharged employee, Dawn Hobbs, buttressed what the campaign was really about, testifying before an administrative law judge that what newsroom employees sought to achieve through collective bargaining was protection from "ethical breaches" and to protect their credibility and integrity. Tuesday's ruling states: "When asked whether they sought any other 'contractual procedures or provisions or benefits,' she responded, "At that time, I think we were just really focused on that ..." meaning content control.

The NLRB argued that the employees' actions "were not in protest against a change in the (paper's) editorial stance," but rather that management decisions that the workers protested "had and threatened to have a direct impact on the autonomy (that employees) had enjoyed in performing their work according to their perceptions of applicable professional norms as well as on their actual, day-to-day duties."

One state court and one federal court rejected this notion, stating the publisher's First Amendment rights were threatened by the NLRB's argument.

The NLRB, however, pressed forward, ordering the paper to rehire the reporters - a move that drew criticism from the appeals panel, which said Tuesday the NLRB "recognized the First Amendment problem ... only to dismiss it out of hand."

The NLRB decision, said the court, "sanctions (the newspaper) for trying to discipline employees who sought to remain on its payroll and at the same time call on newspaper readers of Santa Barbara to cancel their subscriptions because (the newspaper) would not knuckle under to the employees' demands for editorial control."

The panel stated that not only was the employees' goal unprotected by federal labor law, "but in many aspects of their campaign they also used prohibited means - public disparagement of Ampersand's product. Such disparagements, then, were doubly unprotected."

In a statement, News-Press attorney Michael Zinser said, "The court noted that public statements and testimony of employees demonstrated that the actions of employees were rooted almost entirely upon controlling the content of the newspaper and the employees' subjective beliefs of newspaper quality.

The resulting disparagement of the newspaper was not protected; the newspaper acted within its rights to discharge the offending employees to protect its editorial control."

The NLRB had no comment on the ruling. "We just let the decision speak for itself," said Nancy Cleeland, NLRB director of public affairs.

The D.C. Circuit judges said the employees' demands are not protected by the National Labor Relations Act because they focused on controlling newspaper content, not on employee benefits.

Even though the reporters included some benefits - hours, wages, benefits and working conditions - in their request, their main focus was on "journalism ethics" and "who rightfully controlled the content of the News-Press," Judge Williams said.

The court compared reporters' tacking employee benefits on to their argument so as to be protected under the National Labor Relations Act to including a Biblical verse into a porn film to redeem the film.

"A truly pornographic film would not be rescued by inclusion of a few verses from the Psalms" in the same way the employees' dispute over content was not protected by adding a few "verses of protected issues," the court said.

Ira Gottlieb, attorney for the International Brotherhood of Teamsters, was less than thrilled with the comparison.

"First of all, there's a certain insulting quality to the comparison," he said. "The comparison is respectfully flawed. The union's campaign slogans were related to the employees' terms and conditions and were directed toward getting toward a point where it could collectively bargain with the News-Press."

The National Labor Relations Act gives employees the right to form or join labor organizations and to engage in other activities for the purpose of collective bargaining.

But the act has limitations.

"Where enforcement of the act would interfere with a newspaper publisher's 'absolute discretion to determine the contents of (its) newspaper,' the statute must yield," Judge Williams wrote on behalf of the court. "A publisher's editorial policies do not constitute a 'term or condition' of employment."

The NLRB now has three options: accept the ruling; appeal to the full D.C. Circuit Court; or appeal to the U.S. Supreme Court.

In a statement, the News-Press said, "We had faith that once an objective, judicial panel viewed our case, the biases and overzealousness of the NLRB would come to light."

"We will continue to publish the best newspaper in the country, free from any attempted interference - government, union or otherwise. We will continue to strive for unbiased coverage of the news and to serve the readers of the greater Santa Barbara area to the best of our capabilities."

Read the Court of Appeal's 14-page decision

Staff writer Emily Parker contributed to this report.

email: ssteepleton@newspress.com



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