Tuesday, October 02, 2007

Predicting the Outcome, Part 2

Yesterday's prediction of how Judge William Kocol will rule on the legality of the firings of the six reporters who demonstrated on a freeway overpass was a fairly easy one to make in light of the evidence. Today I deal with a much tougher issue; whether the firings of former News-Press reporters Melinda Burns and Anna Davison will be allowed to stand.

The News-Press claims that it fired the two reporters because of repeated instances of "bias" in their reporting. The NLRB and the union are alleging that the claim of bias was just a pretext. The real reason both were fired was because they were union adherents.

So what's the evidence? In Davison's case, the chief witness against her was News-Press owner Wendy McCaw herself.

Davison's beat, environment and science, put her on McCaw's radar and eventually in her doghouse as she wrote about McCaw's pet topic, animals.

Davison drew assignments that called upon her to report about the government's efforts to manage and control the wildlife population at the Channel Islands National Park. Those efforts involved plans to bring in hunters to thin out the feral pig population on Santa Cruz Island.

Apparently Davison's failure to find and include the quote of someone who would give an unqualified condemnation of the hunting and killing of pigs caused McCaw to do a slow roast.

By the time McCaw hit the witness stand at the NLRB hearing her long simmering anger over the articles had erupted. You could almost see McCaw's blood pressure rise as she talked about Davison's reports. Her description of Davison as being a "shill" and the "handmaiden" of government wildlife regulators seemed better reserved for someone who had committed treason rather than someone who had written about sea otters.

It was a Tour de Frump performance from McCaw and describing it as a performance is not to suggest that it wasn't genuine. It was genuine, and that was the scary part about it.

A casual observer might assume that to successfully defend the termination of Davison the News-Press would only have to show that the firing wasn't motivated by a desire to get rid of a union sympathizer. If they got rid of her for any other reason, even an irrational one, they would beat the unfair labor practice rap.

Not only was McCaw the paper's star witness on this point, her displeasure with Davison was long-standing and well documented. They produced memos from McCaw that complained about Davison, articles of Davison's that had been annotated by McCaw, all going back for several years.

But in the end, it wasn't an animal story that got Davison fired but rather one about trees on State Street. And at first McCaw didn't demand that Davison be fired but rather only "reprimanded." When her supervisor, Bob Giuliano refused to do so, Davison ended up getting fired, and shortly after that so was Giuliano.

What the News-Press never really satisfactorily explained was whose decision it was to fire Davison. Associate editor Scott Steepleton claimed it was his decision and his alone boasting that "the buck stops with me." But while Steepleton may have been aware of the fact of McCaw's contempt for Davison, there wasn't really evidence that he was aware of the depth of it.

If the News-Press really is the institution it claims to be then it has to be bigger than the whims of McCaw. Who else at the paper would share McCaw's fanaticism for animal rights and conclude that Davison had to go because she had too few quotes from sea otter aficionados and too many quotes from Mayor Blum?

And if biased reporting was really the issue didn't the News-Press have an obligation to warn Davison about it? (They apparently didn't.) Or to provide some training on how to guard against it? (They indisputably didn't.)

Under labor law, the paper's failure to investigate, train or give Davison a chance to defend herself against the charges of bias can be considered by Judge Kocol as evidence of discriminatory intent.

And of course there's the case of Burns. There had been mentions of bias in some of her prior performance evaluations but they had been satisfactorily resolved. When proponents of Measure D incorporated quotes from one of Burn's articles on the subject into their campaign literature that was seized upon as evidence of bias and cited as grounds for her termination.

According to McCaw the article was biased "because if it was neutral this group would not have used it in their mailer." Even Judge Kocol appeared to have trouble with that leap in logic. He asked McCaw; "How does it follow that the fact that this advocacy group used it shows it was biased." McCaw had no real answer for that.

If the judge is as careful and as thorough as I suspect he will be in analyzing the law and the evidence on these issues, the News-Press may indeed have a hard time in making these firings stick.

* * *

Tomorrow I'll discuss the remaining charges and have some thoughts from veteran journalist Lou Cannon.

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