Citing First Amendment protections, a federal appeals court has sided with the owner of the Santa Barbara News-Press and overturned a National Labor Relations Board order that eight reporters fired during a union-organizing battle be reinstated.
The U.S. Court of Appeals for the District of Columbia — acting on an appeal by News-Press owner Ampersand Publishing LLC —handed down its 14-page decision Tuesday.
“The (NLRB’s) analysis was tainted by its mistaken belief that employees had a statutorily protected right to engage in collective action aimed at limiting Ampersand’s editorial control over the News-Press,” the judges wrote in rejecting the NLRB’s decision in August 2011.
Arguments in the case took place Nov. 8 before a three-judge panel including Chief Judge David B. Sentelle, Senior Circuit Judge Stephen F. Williams and Circuit Judge Karen LeCraft Henderson, all of whom were appointed by Republican presidents. The opinion was written by Williams.
Don Katich, director of news operations for the News-Press, provided a written statement commenting on the ruling. It read in part:
“The court vindicated our First Amendment rights, and validated what we believed to be appropriate action all along. We had faith that once an objective, judicial panel viewed our case, the biases and overzealousness of the NLRB would come to light…
“We will continue to publish the best newspaper in the country, free from any attempted interference – government, union, or otherwise. We will continue to strive for unbiased coverage of the news, and to serve the readers of the greater Santa Barbara area to the best of our capabilities.”
In a 55-page decision released in August 2011, the three-member NLRB board had upheld a 2007 ruling by Administrative Law Judge William Kocol, who found that co-publishers Wendy McCaw and Arthur Von Wiesenberger had acted unlawfully by waging an “extensive campaign of retaliatory conduct against employees because they exercised their rights to seek union representation.” Kocol’s ruling had been appealed by Ampersand Publishing LLC, which owns the newspaper.
In its own ruling, the NLRB concluded that the News-Press “committed multiple unfair labor practices during a union organizing campaign by newsroom employees.”
The board rejected Ampersand’s argument that an order in favor of the employees would interfere with the publisher’s First Amendment right to control the newspaper’s editorial content.
During the “News-Press Meltdown,” as it’s known locally, 15 journalists resigned in protest, claiming McCaw, the sole owner of Ampersand LLC, was interfering in their news reporting and editing. Newsroom employees later voted to join the Teamsters union.
The NLRB board ordered the News-Press to offer reinstatement to eight employees who were fired for “biased reporting” and hanging a banner from a footbridge that urged people to cancel their subscriptions. The board also ordered the paper’s management to rescind discriminatory evaluations of four union supporters, rescind 11 suspension notices and give back pay to all discriminated employees.
The eight fired reporters are Melinda Burns, Anna Davison, Melissa Evans, Dawn Hobbs, Rob Kuznia, Barney McManigal, Tom Schultz and John Zant. Burns was fired in 2006 and the rest were fired in early 2007.
“We believe the court was wrong in its reading of the record and application of the law,” said Ira Gottlieb, an attorney representing the teamsters, said of Tuesday’s ruling.
“We’re quite disappointed with (the decision),” he added.“We think that the court expanded the First Amendment beyond where precedent up till now has allowed it to go.
“The court turned it from a sword protecting a newspaper’s right to publish, to now being a sword where you can lash out against employees who allegedly threaten editorial prerogative.”
Gottlieb said no decision has been made regarding a possible appeal of the decision. The NLRB could seek a rehearing from the Appeals Court, or ask for a review by the U.S. Supreme Court.
Noozhawk staff writer Giana Magnoli contributed to this story.
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