News-Press labor trial draws to a close

BY ERIC LINDBERG
DAILY SOUND STAFF WRITER

Day 17 of the federal hearing into allegations of labor law violations at the Santa Barbara News-Press proved to be the last as attorneys for both sides cleared up minor issues and heard testimony from one final expert witness.
John Irby took the stand for the defense as an expert on the standards and practices of the journalism industry. However, Judge Kocol didn't allow much of his testimony, saying it wouldn't help him determine the issues in the case.

News-Press attorney Barry Cappello did manage to elicit some testimony from Irby — an editor of a 30,000-circulation newspaper in Bismarck, N.D. and former associate professor of journalism — concerning ethical standards.
Irby testified that a publisher has ultimate responsibility for all departments of a newspaper and can intervene in content. He also answered questions from Cappello about any philosophical or ethical walls between different sections of a newspaper, stating that the only wall that exists is one between the news content and the advertising content.
"It can hurt your credibility ... if the public sees you are favoring advertisers," Irby said.
National Labor Relations Board attorney Steve Wyllie asked if keeping the opinion section separate from the news department would increase a newspaper's credibility, receiving an affirmative response from Irby, who said he had knowledge of newspapers that operated their newsroom in that fashion.
Judge William Kocol pressed him further on that issue, asking how a wall between advertisers and the newsroom is any different from a wall between the opinion section and the news section. The judge offered the example of an author of an editorial in favor of a politician attempting to influence news coverage of that political figure.
Irby answered by saying a separation does and should exist, but that newsroom employees typically work together and that issue doesn't arise often.
"I don't think that generally happens," Irby said.
As Cappello rested his case, Gee attempted to bring former News-Press reporter Melinda Burns to the stand during his short rebuttal argument to question her about the union's goal of bargaining for restoration of journalistic ethics and integrity. However, Cappello objected and the judge agreed that Gee should have covered that area during his case-in-chief.
Judge Kocol moved on to a short hearing concerning sanctions requested by Cappello against the prosecution for fraudulently concealing evidence, among other issues. At the heart of Cappello's complaint were two e-mails, referred to now as the "rock the house" and "blitzkrieg" e-mails, that the defense said were concealed because they suggested an August 24, 2006, attempt by newsroom employees to deliver a letter to News-Press management was disruptive, not calm and professional as participants have testified.
Judge Kocol ruled that union attorney Ira Gottlieb should exhibit more care in the future, but that he "can't conclude that there was deliberate concealment," denying the sanctions. Several witnesses whose names appeared on the e-mails as recipients testified that they likely deleted them, a sentiment echoed by Gottlieb, who was also listed as a recipient.
The judge also denied sanctions against the NLRB attorneys for failing to conduct their investigation with due diligence — Cappello argued earlier that they should have discovered the e-mails during their preparation for the trial — saying that argument had no merit.
With that, Judge Kocol advised the attorneys that post-trial briefs offering closing arguments will be due October 31 and reply briefs will be limited to 10 pages and due two weeks after that before officially closing the trial.
Following the hearing, attorneys discussed what appears to be a key issue in ruling on many of the charges filed by the NLRB, namely whether union activity related to ethics and integrity is protected by the National Labor Relations Act.
Cappello has argued that activity — specifically the display of banners and signs from a footbridge over Highway 101 by six newsroom employees urging the community to "Cancel Your Newspaper Today!" and "Banish the Bias" — is not protected, rendering the decision to fire those employees for disloyalty legal.
"The publisher has the First Amendment right to control the newspaper," Cappello said. "...I think the ultimate issue is an issue of constitutional weight."
He went on to echo an argument he reiterated on numerous occasions in court, that the quality and integrity of a newspaper is purely the management's prerogative and that he has the legal history to back that claim.
"We believe we have the cases and the law in our favor," Cappello said. "There are cases that say journalism ethics and integrity are the sole prerogative of the owner and publisher."
Wyllie agreed in part with that characterization, but said that ethical issues are tied to an employee's job and their ability to perform that job.
"It's intimately intertwined with the terms and conditions of these employees," Wyllie said.
He cited discipline of reporter Camilla Cohee, for publishing the address of a Montecito lot where actor Rob Lowe planned to build a home, and reporter Anna Davison, for "quoting the mayor too much" in an article she wrote about a project involving trees being cut down on State Street, as examples of ethical concerns affecting working conditions.
Wyllie said the fact that employees have to worry about what stories to write and how to write them without defined ethical guidelines affects their ability to perform their job, especially if they have to worry about being disciplined. NLRB attorney Brian Gee said he felt they had presented enough evidence to Judge Kocol to convince him that attempts by employees to develop or bargain on those ethical guidelines through union activity, such as the footbridge demonstration, is protected by labor law.
Which side will eventually prevail on that issue will likely not be known for at least several months. Cappello said a decision from Judge Kocol is likely to occur in early 2008 and the final ruling by the NLRB will follow four to six months later. Appeal to federal court after that decision is also possible.