Thursday, May 29, 2008

Injunction Misfunction

That popping sound that could be heard in the vicinity of De La Guerra Plaza yesterday afternoon was that of champagne bottles being uncorked as News-Press owner Wendy McCaw was toasting a federal judge's decision refusing to order her to immediately reinstate eight reporters that she had fired.

And no, I'm not being facetious or taking literary license. The report is that McCaw and her associate editor Scott Steepleton were actually toasting the fact that she didn't have to re-hire those reporters.

If you have the patience to read and the bandwidth to download a 33 page PDF document you can read the judge's decision for yourself here.

In the meantime, I've anticipated a few questions you may have as to what this all means.

Question 1. Is there any silver lining in the judge's refusal to reinstate the reporters?

Like so many things in life, Judge Wilson's decision was both good news and bad news. The bad news is that the reporters won't be getting their jobs back anytime soon. The good news is that they don't have to go back to work for Wendy McCaw right now.

Question 2. Back in March you boldly predicted that the chances were good that the reporters would be reinstated. How could you be so wrong?

By his own admission the judge dispensed with the usual deference accorded to the National Labor Relations Board's interpretation of labor law and required the attorneys who were seeking reinstatement of the reporters to satisfy a higher burden of proof than in the typical labor relations case. His justification for the higher standard was the First Amendment guarantee of freedom of the press.

Question 3. Well if you're such a smart lawyer, why couldn't you anticipate that?

I practiced law for 25+ years, I never claimed to have been particularly smart about it.

Nevertheless, Judge Wilson's reasoning that requiring McCaw to hire back the fired reporters would interfere with her editorial discretion still doesn't wash with me. Only two of the eight reporters (Melinda Burns and Anna Davison) were fired on the grounds that McCaw didn't like what they were writing. And an administrative law judge determined that those allegations were trumped up. The other six weren't fired for what they wrote but rather were fired because they were "disloyal" in taking part in the demonstration on the freeway overpass urging people to cancel their subscriptions to the paper.

That demonstration was determined to be protected labor activity and it was found that the reporters were in fact fired as a result of McCaw's animus towards the Union. They weren't given the boot because their articles were biased or because they wanted to control the paper. Judge Wilson is now saying the First Amendment can be cited as a reason for not requiring McCaw to take those reporters back? You don't have to be the sharpest tool in the shed to appreciate the opportunities for mischief and abuse the judge's ruling has now opened up.

In any event, Judge Wilson's decision will be the last word for some time. The NLRB can appeal, but even if they do, that will take months to be resolved. Likewise, the News-Press' pending appeal of administrative law judge Kocol's ruling will also take months to be resolved. If that ruling is upheld, the reporters will ultimately get their jobs back.

For the time being, victory is McCaw's to claim. But she can't use the decision to sell more papers, woo subscribers who have cancelled back into the fold or attract more advertisers. For that she's on her own and she won't be able to count on Judge Wilson to bail her out.