Wednesday, January 27, 2010

News-Press Decision: Not Worth Waiting For


After 10 months of waiting, the wait is finally over. And, if you were rooting for the fired newsroom employees of the Santa Barbara News-Press, it was hardly worth waiting for.

A federal court of appeals has refused to order the immediate reinstatement of "The News-Press 8."

There is no denying that this is a big victory for News-Press owner Wendy McCaw and a huge setback for the employees who were hoping to get their jobs back. Back in December of 2007 a labor law judge, William Kocol, ruled that McCaw had illegally terminated eight News-Press reporters in retaliation for their union activities. McCaw has appealed that ruling to the full National Labor Relations Board. While that appeal is pending, the General Counsel of the NLRB (the equivalent of the "DA" in labor relations cases) tried to get an injunction which would have compelled McCaw to immediately rehire the employees while the appeal was being decided.

A federal trial judge refused to issue such an order. The general counsel appealed that ruling. Oral arguments in the case were held March 11 of last year. Tuesday, the court issued a 41 page opinion, that refused to disturb the trial judge's denial of the injunction.

It was a 2 to 1 decision. The two judges who sided with McCaw were both George W. Bush appointees. The dissenting judge, who believed the employees should be immediately reinstated, is a Bill Clinton appointee. Do the math and that probably goes a long way in explaining the result.

The two judges who formed the majority seemed concerned with the risk that granting the injunction would encroach upon McCaw's First Amendment rights as a newspaper publisher. "No matter how laudable the goals of the fired reporters in promoting the Union to restore 'journalistic integrity,' the risk that granting an injunction will infringe the News-Press' right to publish what it pleases is inescapable," they wrote.

They went on to say, "Telling the newspaper that it must hire specified persons, namely the discharged employees, as editors and reporters constituting over 20 percent of its newsroom staff is bound to affect what gets published."

The dissenting justice, Michael Hawkins, had what looked to me like a pretty good rebuttal: "The injunction here only seeks reinstatement for terminated employees. Period. It does not enjoin speech. Rather, the injunction addresses troublesome, retaliatory terminations and disciplinary actions the News-Press took only after union organizing began. The injunction addresses terms and conditions of employment, and it leaves the News-Press’s right to publish its desired content entirely intact."

He went on to say, "(Judge Kocol's) extensive factual findings detail a variety of unfair labor practices orchestrated by the News- Press and include reasonable findings that key testimony offered on the News-Press’s behalf was not credible and the justifications advanced for its actions were in large part pretextual."

And unlike justices Richard R. Clifton and Milan D. Smith Jr, who ruled in favor of McCaw, Hawkins seemed to appreciate the fact that ultimately McCaw's most effective weapon is time.
To permit illegal employer conduct to go unaddressed while the Board’s corrective machinery grinds toward resolution would subvert the underlying purposes of (injunctive relief) and allow those who commit unfair labor practices to reap the benefits of that conduct. Here, the longer the complaint sits with the Board without action, the weaker the union appears to remaining employees and the less energy exists in support of unionization, injuries that are immeasurable and irreparable.

So, although the dissenting justice in this case had the better argument (at least as far as I'm concerned) anyone who has been in one of my classes can tell you what I say about dissenters: "Show me a dissenter and I'll show you a loser." And indeed it's McCaw and company who will be uncorking the champagne around De la Guerra Plaza.

So what's next for the Union and the "News-Press 8?"

Tuesday's decision does not overturn the Union's 2007 victory when Judge Kocol ordered the fired reporters immediate reinstatement along with back pay. The full National Labor Relations Board has yet to rule on McCaw's appeal of that ruling. The NLRB could ultimately return the reporters to their former jobs. It's just that a ruling out of the NLRB is nowhere in sight.

Asked for her reaction to Tuesday's ruling, Melinda Burns, one of the fired reporters, had this to say: "The notion that we reporters were somehow trying to control the content of the News-Press is absurd and unfair. It's hard to understand how any judge could twist the law in this fashion. We joined the Teamsters to protect ourselves from Wendy McCaw's arbitrary attacks, and we got fired for it. And that's illegal. We've seen how McCaw with her millions can break the law and delay justice for years, but this fight is not over. We remain confident that we will win in the end."

Former News-Press reporter Dawn Hobbs, who was also fired by McCaw, doesn't appear to be giving up either. "We, of course, are disappointed in the decision and strongly disagree with it. As much as we would have liked to see this ruling come down the other way, it in no way dampens our spirits because we know that one day soon we will be back doing the jobs we love."

The next step is the possibility that the general counsel of the NLRB will ask for a rehearing of the case. That would mean that it would be reconsidered by all of the justices who sit on the Ninth Circuit, not just the panel of three who issued Tuesday's ruling. If that occurs, anything could happen. The only thing that is certain is that this entire process is going to drag out for a whole lot longer.
© 2010 by Craig Smith and www.craigsmithsblog.com

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