Wednesday, May 28, 2008

Injunction Denied

It what is undoubtedly the Union's biggest setback thus far in the judicial arena and Wendy McCaw's biggest victory in the nearly two-year old struggle by newsroom employees of the Santa Barbara News-Press to free themselves from the tyranny of a publisher running amok, a federal judge has denied the request of the National Labor Relations Board for an injunction requiring McCaw to immediately reinstate eight fired reporters who had previously been found to have been wrongfully terminated.

I have read Judge Steven Wilson's 33 page opinion which was filed on May 22nd but only made available today and indeed the bottom line is that the First Amendment can be a license to engage in unfair labor practices.

The judge has bought McCaw's freedom of the press argument lock, stock and barrel and is applying a higher standard to be met than in the usual labor relations case in order to demonstrate entitlement to reinstatement of the fired employees.

"The court finds the presence of First Amendment issues in this case requires the court to dispense with the usual deference owed to the Board," wrote Judge Wilson.

Indeed he held News-Press attorney Barry Cappello to a very low standard ruling that the News-Press need only "raise a plausible First Amendment argument not necessarily clearly established by existing authority."

That wasn't a very tall order for an attorney with persuasive fire power of Cappello.

Judge Wilson took the view that the union organizing at the News-Press had the central demand of ceding of an aspect of the publisher's editorial discretion.

As an example of that he cited the employee's July 13, 2006 letter where the first demand was "restore journalism ethics to the News-Press and implement and maintain a clear separation between the opinion/business side of the paper and the news gathering side." Judge Wilson felt that this demand goes to the heart of the paper's editorial discretion.

The judge also felt that the separation of the opinion/business side from the news gathering side was a demand related to content control falling within the publisher's editorial discretion.

Although he stated he was "loathe to," Judge Wilson rejected as clearly erroneous administrative law judge William Kocol's view that the Union campaign was not, at least in part, aimed at forcing concessions from McCaw directly related to her exercise of editorial discretion.

The judge reasoned that by preventing the News-Press from retaliating through disciplinary means the sought after injunction amounts to state action limiting the paper's ability to combat pressure placed on it to limit its exercise of editorial discretion.

Judge Wilson seems to feel that a newspaper should have freedom to combat union demands, backed by economic pressure, to bargain over subjects related to their editorial discretion even if it means engaging in what in any other context would be regarded as unfair labor practices.

In response to an e-mail request for a comment, Union attorney Ira Gottlieb had this to say:

We are extremely disappointed by this ruling, which we respectfully believe was incorrectly decided. We hope that the NLRB will appeal the decision, and with a successful appeal, restore the deference to ALJ decisions and respect for the protection of NLRA rights to organize that the Act and specifically 10(j) was enacted to protect, and 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. We remain optimistic that the NLRB will uphold Judge Kocol's decision, and that any court considering that decision will also uphold it in its entirety.

The judge's ruling effectively ends any hope for reinstatement of the reporters within the immediate future. The case will still be reviewed by the full National Labor Relations Board and that review could very well come to a different conclusion than Judge Wilson has.

However, the conclusion of that process won't be any time soon. In the meantime the Union, and the local community are, in my opinion, today's biggest losers.