I opened up my post this morning by analogizing the NLRB hearings to a baseball game. After sitting through this morning's session I think I should change it to more like watching a marathon being run, one runner at a time.
Cross-examination by News-Press attorney Barry Cappello of fired senior writer Melinda Burns continued this morning. With the parties at odds over the reason given for her termination, biased reporting according to the News-Press while the NLRB and the Union maintain that it was her union organizing that got her canned, we never got around to questions and testimony on that issue until we were over two-and-a-half hours into the morning session.
Instead most of the morning's questions by Cappello focused on whether the activities of Burns and the other union supporters in the newsroom were "protected" activity.
While complaints about wages, hours and working conditions are legitimate areas for union protest Cappello argues that concerns about "journalistic integrity" and "ethics" aren't. Cappello appears to me to be attempting to position the News-Press to be able to contend that even if the judge finds that the eight reporters were wrongfully discharged the News-Press won't be obligated to hire them back due to their subsequent acts of disparaging the News-Press and the newspaper that it puts out. If he can show that he may very well have succeeded in winning the case on behalf of Wendy McCaw because other than reinstatement and back pay, there is no other meaningful penalty for having violated the National Labor Relations Act by committing an unfair labor practice.
At one point while questioning Burns about the Union's demand to restore journalistic integrity to the paper he asked Burns if she had read the American Society for Professional Journalists standards on the subject. She admitted that before July 2006 she hadn't. Cappello then asked what standards she had in mind. Burns responded "how about report the news without favor to friend or foe?"
One of the most interesting exchanges took place during a morning recess. As the audience was standing up to stretch, Larry Farwell, a former Goleta Water District employee who is apparently not accustomed to the aggressive tactics that lawyers sometimes employ, wondered out loud to the person standing next to him how Cappello could sleep at night. Cappello heard the comment and turned to face Farwell, whom according to Cappello, repeated it to his face. A visibly perturbed Cappello told Farwell that if he made another comment like that again he'd have him removed from the courtroom.
Outside in the hallway, Farwell explained to myself and Nick Welsh of the Independent that while he didn't come to the hearing with the intention of making a "verbal lob" he was "raised with ethics and values, but I'm always astounded how people can work with parties who are damaging to society." Further on in our conversation Farwell stated: "I was absolutely stunned to come to this case and see this kind of behavior. The only motive to take this case (on behalf of McCaw) is greed."
At the lunchtime break I asked Cappello for his side of the story. He confirmed the gist of what Farwell had said and stated that he thought it was an inappropriate remark to be made in the hearing room and that as an officer of the court he would have no hesitation to warn people about making inappropriate remarks.
Cappello is certainly a skilled cross-examiner and knows how to lead a witness as he is permitted to do under the rules of evidence. He even managed to do a pretty good job of muddying the surrounding circumstances of the Rob Lowe address incident to make Lowe look fairly sympathetic and McCaw look fairly reasonable. It will be the job of the opposing attorneys to clear that up. And in case you're wondering if Cappello has been badgering Burns as she testifies from the witness stand, I can assure you, the judge won't let him.
Time to get back to the marathon.
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