Wednesday, August 15, 2007

NLRB Hearings Begin, Time To Load Up On No-Doze and Caffeine

I doubt that it's the kind of thing that they keep statistics on but I'd be surprised if there ever was a bigger turnout of people to observe an NLRB hearing than there was this morning down at the Bankruptcy Court building on State Street for the commencement of NLRB vs. Ampersand Publishing. Of course, around here Ampersand is better known as the Santa Barbara News-Press.

There was already a line at the door when I arrived at about 9:40 am. A good number of people waiting to get in had been subpoenaed by the News-Press and got to go to the front of the line. With airport style security procedures in place, waiting to get inside was a slow process.

By the time I actually made it into the courtroom it was 10:30 am. I got one of the last empty seats and I'd estimate that there were 60 or so people in the audience.

Outside the courtroom in the foyer were 25 to 30 of the witnesses who had been subpoenaed. Prospective witnesses are under orders to stay outside the courtroom until they are called. Most of them were chatting and socializing while they waited except for Scott Steepleton, the News-Press' associate editor, who was standing off by himself. He would be the first witness called to testify in the case.

Inside the courtroom, union attorney Ira Gottlieb was wrapping up his opening statement. After Gottlieb concluded and sat down it was Barry Cappello's turn to make his opening statement on behalf of the News-Press.

Cappello walked administrative law judge William G. Kocol through the whole sorry saga of the paper. A saga that is familiar to all of us but undoubtedly new to the judge. Cappello emphasized that this was not the normal union/employer labor dispute as it was really a battle for control of the paper as opposed to one over wages, hours and working conditions.

Much of Cappello's statement sounded as if it was taken from Wendy McCaw's missives. He talked about McCaw's concern, long before the events of last July, that the paper's circulation was declining. When Cappello stated that "young people prefer to get their news from the Internet" the judge interrupted him to add; "Some older people also get their news from the Internet." I wonder if the judge reads the blogs?

In any event, according to Cappello, McCaw attributed the drop in circulation and the decline in readership to biased reporting by the paper's writers and promised that we would see many of McCaw's memos to then publisher Joe Cole expressing her concerns.

As I listened to Cappello's opening statement I tried to put myself in the position of the judge who was hearing this story for the first time. From that perspective two things struck me as being eyebrow raising; Wendy's appointment of her boyfriend, Arthur as her co-publisher and acting publisher Travis Armstrong's arrest for driving under the influence which of course resulted in newsroom turmoil when McCaw ordered the story of his sentencing killed.

Armstrong was sitting in the front row of the courtroom and, according to Cappello, he will be the paper's representative at the proceedings. There were four attorneys sitting on the News-Press side of the counsel table. A few feet away, volumes of enormous loose-leaf binders were stacked up shoulder high.

About 30 minutes into Cappello's opening statement the judge interrupted and told him to "get to the highlights." Ten minutes later the judge interrupted Cappello again to ask him to "wrap it up."

When testimony began in the afternoon the focus was on two areas; the freeway banner incident and whether reporters Melinda Burns and Anna Davison were fired because of their union activism or because their reporting was biased.

Steepleton was the first witness called by the general counsel of the NLRB who is prosecuting the case.

As he testified two themes emerged. The News-Press is going to defend its firings in the freeway banner incident by arguing that there is no evidence that it was a protest being made in the context of a labor dispute, something they insist is an essential element in order for such a demonstration to be protected conduct.

And in trying to prove that Burns and Davison were discharged because they favored unionization the union and the labor board's counsel are trying to establish a pattern of disparate treatment, on the part of the paper, of those who favored the union as opposed to those who didn't.

In listening to Steepleton, there were two things in his testimony that tested the bounds of credulity for me. First he claimed he had no idea of whether his wife, Charlotte Boechler, the paper's assistant features editor, had any allegiances to the union. (I wonder what they talk about on those long daily commutes between Santa Barbara and Ventura where they live?)

And if Steepleton truly didn't realize that the freeway overpass demonstration was part of the labor dispute, as he claimed he didn't, then he was the only guy in the whole town who didn't know it.

By the time the day's proceedings ended at 4:30 pm, that crowd of over 60 in the audience had dwindled down to a little more than 20.

Most effective moment of the day came after Steepleton testified that Davison was fired because her article on the removal of trees on lower State Street, that was part of the city's beautification project, didn't reflect the fact that there was opposition to the tree removal and that if she had bothered to look at the paper's editorial pages she would have been aware of that. Shortly after he made that assertion, counsel for the NLRB showed Steepleton a 30 second video, that was produced by the News-Press and posted on the News-Press TV website, that played like a puff piece for the downtown beautification project. As far as we know the producer of the video is still working for the paper. (You can view the video that was shown by going to this link and then browsing the videos listed under April 2007 and then clicking on the link that says; "Lower State Street Construction."

Biggest surprise of the day came when Cappello informed the judge that he may call me as a witness. I think I know what it's about but on the advice of my attorney (myself) I won't be discussing my possible testimony.

The media, both local and from afar, turned out to cover the hearing. In attendance were reporters from the L.A. Times, Associated Press, Ventura County Star, Ventura County Reporter, South Coast Business Times, The Santa Barbara Daily Sound and even Hannah Guzik from the News-Press was there.

Although their camera people weren't allowed inside KEYT and KSBY had video crews out on the sidewalk and reporters inside the courtroom. And yes, the Independent beat me on-line with their account of the day's proceedings.

Spending an entire day inside a courtroom when it's 85 degrees and sunny outside reminds me of why I never miss practicing law.

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