Judge rules against News-Press

BY ERIC LINDBERG
DAILY SOUND STAFF WRITER

In a lengthy, earlier-than-expected decision, a judge found the Santa Barbara News-Press guilty of violating labor law, siding with union attorneys on nearly every aspect of 15 unfair labor practices charges leveled against the newspaper.
Administrative Law Judge William Kocol issued his decision, dated Dec. 26, ordering the News-Press to reinstate, with backpay, eight fired reporters, among other recommended remedies.

“We are very, very happy with this ruling,” said Melinda Burns, one of the reporters fired following unionization of the newsroom in mid-2006.
“We feel vindicated and we feel like it shows you can have a lot of money and be able to hire a lot of lawyers but justice will prevail in the end.”
Judge Kocol heard testimony and argument during a 17-day hearing beginning in August. His recommendation will stand unless the newspaper appeals the decision to the full National Labor Relations Board.
Attempts to contact News-Press management were not successful, although a statement that appeared in the News-Press by attorney Michael Zinser, who represented the paper at the recent hearing, suggests they plan to file an appeal.
“The Santa Barbara News-Press is extremely disappointed with the ALJ opinion as it believes it acted lawfully in all respects,” Zinser said in the statement. “The ALJ opinion is merely a ‘recommended’ decision and order, and is not enforceable in its own right. … The News-Press will exhaust all possible appeals, and fully expects to achieve justice through that appellate process.”
In addition to agreeing with union attorneys that the newspaper had illegally fired reporters for supporting unionization efforts, Judge Kocol also found that the News-Press had violated labor law by canceling Starshine Roshell’s column; threatening suspensions for attempts to deliver a demand letter to News-Press owner and publisher Wendy McCaw; lowering performance evaluations to deny bonuses to union supporters; ordering the removal of “McCaw Obey the Law” signs and buttons; firing assistant city editor Bob Guiliano; and conducting surveillance of union meetings and rallies.
“It was a resounding victory,” Burns said. “We’re just ecstatic.”
“We are gratified that the judge has so quickly and thoroughly found that the News-Press has wronged the newsroom employees, even as we regret that this massive enforcement action proved necessary,” lead union organizer Marty Keegan said in a prepared statement.
In his 78-page decision, Judge Kocol wrote that he based his ruling largely on facts determined by testimony from the eight fired reporters and Roshell.
“Even taking into account the fact these witnesses are alleged to be discriminatees and therefore stand to benefit from the outcome of this case, I nonetheless conclude that their testimony was truthful,” he said. “Their demeanor was serious and believable and they tended to corroborate each other.”
In contrast, he found the testimony of News-Press management, including associate editor Scott Steepleton and editorial page editor Travis Armstrong, largely insincere, stating that Steepleton seemed overeager to answer affirmatively to leading questions.
“Steepleton’s demeanor while answering those questions was entirely unimpressive; it had a smirking quality to it,” Judge Kocol said. “…Armstrong’s general demeanor as a witness was not particularly impressive; the content of his testimony seemed exaggerated more to make a point than to relay the facts.”
Many of the issues in the case hinged on whether journalistic integrity is a suitable topic for discussion through the collective bargaining process, and Judge Kocol determined there is room for collective bargaining on that issue under current law.
“That might especially be true here,” he wrote, “where the News-Press presents itself as a credible newspaper and expects its employees to maintain high ethical standards yet engages in conduct that employees believe undermines their credibility as journalists.”
Despite arguments by News-Press attorneys that six reporters who hung banners and signs reading “Cancel Your Newspaper Today!” and “Banish the Bias” had engaged in disloyal conduct, resulting in their dismissal, Judge Kocol ruled that such statements are “clearly protected” and not disloyal, and that their termination constituted a violation of labor law.
In his analysis of the firing of vocal union supporter Melinda Burns, which newspaper management said resulted from her biased writing, Judge Kocol again sided with arguments by union attorneys that she had been illegally fired due to union activity.
“The termination came without warning to an award winning, 21-year veteran employee with an otherwise unblemished work record ... The News-Press was seeking to create support for its decision to fire Burns where none existed,” he said.
His ruling on Anna Davison’s firing, another reporter News-Press management said was fired for biased writing, ran along the same lines.
“There is no evidence that the News-Press routinely fires employees for bias appearing in articles,” he said. “To the contrary, the record shows other instances of perceived bias by the News-Press that did not result in discipline of any kind, much less termination.”
In regard to the charge that the newspaper illegally cancelled Roshell’s popular column due to her strong, pro-union stance, he agreed with union attorneys that her union activity had entered into the decision.
“I have concluded that the News-Press has failed to show by credible evidence that [columns] were eliminated as part of a new business plan or model that would include the elimination of Roshell’s column,” he said.
Since Roshell resigned from the newspaper shortly after the cancellation, reinstatement of her column is not a requested remedy.
Judge Kocol also determined that, despite attempts by News-Press attorneys to portray the delivery of a demand letter to McCaw as raucous and disruptive, the action fell under protections offered by the National Labor Relations Act.
“No evidence was submitted to support the various assertions … that the employees had engaged an (sic) attempt to physically intimidate anyone or disrupt the work of others,” he wrote.
On the charge that the newspaper management had coercively interrogated employees concerning their union activities, specifically questioning them about the leaking of an internal memo regarding employee loyalty to other local media outlets, Judge Kocol ruled that such action constituted a violation of labor law.
He again sided with union counsel on a charge that management had illegally ordered employees to remove buttons and signs reading “McCaw Obey the Law,” ruling that employees have the right to display that message despite arguments by News-Press attorneys that it is defamatory.
“McCaw … has interjected herself personally in the effort to defeat the union,” he wrote, continuing by quoting the union’s argument on that matter.
“This is a debate McCaw and her representatives are quite willing to participate in as aggressors, while claiming victim status when the employees … rejoin in kind.”
Although Judge Kocol acknowledged that supervisors do not enjoy the same labor protections as employees, he found the firing of assistant city editor Bob Guiliano for failing to deliver a reprimand to Davison to be a violation of labor law.
However, due to the “bizarre” personal content of messages sent by Guiliano to McCaw and others, he decided that reinstatement should not apply as a remedy in Guiliano’s case.
In reference to the charge that the News-Press had intentionally lowered the performance evaluations of key union supporters in order to deny them annual bonuses, Judge Kocol again found in favor of the union.
Finally, he also decided that the News-Press failed to show any proper justification for filming union rallies in De la Guerra Plaza or sending an attorney to a union meeting at a public library, ruling that the News-Press had violated labor law on those counts as well.
In his recommended remedies, the judge issued a sweeping cease and desist order commanding the News-Press to refrain from interfering, restraining or coercing employees in their right to organize.
“The flagrant nature of the violations in this case, from the unlawful discharges of Burns and Davison to the six employees for their protected conduct on the Anapamu Bridge, resulted in the termination of over 20 percent of the unit and 25 percent of the probable union voters,” he wrote. “To make matters worse, the News-Press discharged a supervisor who would not go along with its unlawful conduct.
“…I find it necessary to issue a broad order requiring the [News-Press] to cease and desist from infringing in any other manner on rights guaranteed employees by … the Act.”
In addition to offering the fired reporters full reinstatement with backpay, Judge Kocol also ordered the newspaper to rescind discriminatory evaluations and remove any reference in its files to unlawful discharges or suspensions.
Burns said she has talked with several of the other fired reporters and that they hope to return to their positions at the News-Press soon.
“I think that most of us are determined to stay here and go back to the paper,” she said. …We think this ruling is a perfect opening for the owner to reinstate us.”
As far as an appeal to the NLRB and potentially a federal appellate court, Burns said she is confident that any attempt to drag out a final ruling will ultimately fail.
“We’ve held out for more than a year. We are intent on getting our jobs back.”