Judge denies reinstatement for fired reporters

BY ERIC LINDBERG
DAILY SOUND STAFF WRITER

A federal judge denied a temporary injunction seeking to reinstate eight reporters fired from the Santa Barbara News-Press as ongoing litigation concerning the labor dispute at the newspaper continues to unfold.
In a decision filed May 22 and made public Wednesday, U.S. District Court Judge Stephen V. Wilson ruled that forcing the newspaper to rehire discharged reporters would violate the First Amendment.

“It is clear that the requested injunction does burden [newspaper management’s] exercise of its editorial discretion,” he wrote in his ruling.
While the decision keeps the fired reporters from returning to work, it does not overrule a separate ruling in December 2007 finding the News-Press in violation of labor law.
Federal attorneys sought the injunction to allow the fired reporters to return to their jobs as the National Labor Relations Board considers an appeal of that ruling.
In denying the injunction, Judge Wilson weighed favorably on arguments made by News-Press attorneys that a requirement to reinstate the fired reporters would infringe on First Amendment rights by forcing News-Press owner and publisher Wendy McCaw to publish articles against her will.
He specifically found credence in the argument that constitutional law supporting freedom of the press outweighs labor law, citing an earlier decision by a federal court that found the National Labor Relations Board’s opinion is not entitled to special consideration when there is a significant risk of violating the First Amendment.
“The standard for finding a ‘significant risk’ of a First Amendment violation … is low,” he noted, adding that the newspaper “need only raise a plausible First Amendment argument” to be successful.
News-Press attorney Barry Cappello said he hammered that argument during a 17-day hearing before Administrative Law Judge William Kocol last fall into 15 unfair labor practice charges, including the eight firings.
Judge Kocol ultimately dismissed Cappello’s line of reasoning while ruling largely in favor of the fired reporters.
“We said that the matter would be decided appropriately in the courts and when we got a court that was impartial, the judge read the Supreme Court cases … and he applied the law,” Cappello said. “…That’s why federal judges are there, to make sure the Constitution is protected.”
Judge Wilson said he found Judge Kocol’s decision to be erroneous, noting one of the union’s demands has consistently been to restore journalism ethics and maintain a wall between the editorial section and the news section.
Any demand affecting a publisher’s control over content is a violation of that publisher’s rights, Judge Wilson said.
“The court must reject as clearly erroneous the ALJ’s view that the union campaign was not, at least in part, aimed at forcing concessions from [newspaper management] directly related to its exercise of editorial discretion,” he wrote.
Judge Kocol had determined that the union campaign did not constitute an effort to give control of the newspaper’s content to newsroom reporters, but merely to restore journalistic integrity — a topic he found has a direct impact on a reporter’s job and reputation, and is therefore subject to bargaining through a union.
After unionization of the newsroom in 2006 largely related to what reporters perceived to be inappropriate meddling in editorial affairs by McCaw, newspaper management fired eight reporters in the following months.
Union representatives have argued those employees lost their jobs due to their outspoken union support. News-Press attorneys maintain they were fired for disloyalty or biased reporting.
Union attorney Ira Gottlieb said he is “extremely disappointed” by Judge Wilson’s ruling but believes the NLRB will ultimately side with Judge Kocol’s ruling.
In an email message, he said a successful ruling on the appeal will “restore the proper balance between First Amendment rights, which are not properly utilized as a sword to injure workers who are trying to gain a voice in the workplace, and the organizational rights of employees.”
Dawn Hobbs, a longtime News-Press crime reporter and vocal union supporter who was fired in 2007, said the decision did not surprise her.
“Our request for temporary reinstatement was denied, but we still won the trial,” she said. “This just means we won’t be going back to work now. This doesn’t dampen our spirits in the slightest.”
As did Gottlieb, Hobbs said she is confident that the appeal of Judge Kocol’s decision will ultimately fail.
Cappello disagreed, arguing that Judge Wilson’s ruling paves a clear path for future decisions by the National Labor Relations Board or a federal court of appeals.
“We think this is precedent-setting as far as the NLRB is concerned,” he said. “This is a federal judge and this is a written opinion.”
When the NLRB might reach a decision is difficult to estimate. With a vacancy on the three-member panel, any ruling requires a unanimous decision by the two remaining members, a Republican and a Democrat.
If they don’t agree on the appeal, the decision will have to wait until a new member is appointed to the board, an action that isn’t expected until 2009.