Santa Barbara News-Press, (2011)

Docket Number:31-CA-027950

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Ampersand Publishing, LLC d/b/a Santa Barbara News-Press and Graphics Communications Conference International Brotherhood of Teamsters and Robert Guiliano. Cases 312013CA201327950 312013 CA201327965, 312013CA201328043, 312013CA201328104, 312013 CA201328116, 312013CA201328131, 312013CA201328151, 312013 CA201328161, 312013CA201328162, and 312013CA201328157

August 11, 2011



At issue in this case is whether the judge correctly found that the Respondent, a newspaper publisher, committed numerous violations of Section 8(a)(1) and (3) of the Act after its newsroom employees initiated a union organizing campaign.1 The Respondent also raises two threshold matters. First, the Respondent argues that the organizing campaign, in its entirety, was not protected by the Act because the employees2019 primary demand was to protect their integrity as professional journalists at the newspaper,2 a matter concerning which, the Respondent

1 On December 26, 2007, Administrative Law Judge William G. Kocol issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed cross-exceptions, a supporting brief, and an answering brief to the Respondent2019s exceptions. The Respondent filed answering briefs to the General Counsel2019s and the Charging Party2019s cross-exceptions, and reply briefs to the General Counsel2019s and the Charging Party2019s answering briefs.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge2019s rulings, findings as modified, and conclusions and to adopt the recommended Order as modified and set forth in full below.

The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and positions of the parties.

The Respondent has excepted to some of the judge2019s credibility findings. The Board2019s established policy is not to overrule an administrative law judge2019s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

2 We recognize that each side characterizes what was at stake in the employees2019 demands differently 2013 the Respondent as an effort to prevent it from exercising editorial control over the paper2019s content in order to prevent bias and the employees as an effort to preserve their autonomy as journalists in order to prevent the publisher and editor from inserting their editorial stance into coverage of the news. We

argues, its employees had no statutorily protected interest. Alternatively, the Respondent argues that the organizing campaign was unprotected because it involved disloyal conduct. Second, the Respondent argues that any governmental intervention on the employees2019 behalf will impermissibly interfere with its First Amendment right to control the content of its newspaper. For the reasons explained below, we reject these threshold arguments, and we agree with the judge2019s unfair labor practice findings.3


The Respondent publishes a daily newspaper in Santa Barbara, California, which has been copublished by Wendy McCaw and Arthur von Wiesenberger since April 2006. As discussed by the judge, employees began to organize following a series of management decisions in mid-20064 that led employees to believe that the new publishers were inappropriately interfering with the work of the employees on the news-gathering side of the paper.

need not and do not address the question of which side2019s characterization is correct in deciding this case.

3 The Respondent excepts to the judge2019s decision to revoke its subpoena duces tecum of Sam Tyler, a documentary filmmaker who filmed interviews with current and former members of the News-Press staff. The Respondent requested that Tyler produce all documents and recordings in his possession that related to the labor dispute at the News-Press. (At the time of the hearing, Tyler2019s film had not been completed or screened for the public.) Tyler filed a petition to revoke the subpoena, arguing that the requested footage was not relevant to the Board2019s proceedings, and that compelling its production would interfere with his First Amendment rights and his ability to produce the film. We find no merit in this exception.

The Board affirms an evidentiary ruling of an administrative law judge unless that ruling constitutes an abuse of discretion. 300 Exhibit Services & Events, 356 NLRB No. 66, slip op. at 1 fn. 1 (2010). Here, the judge2019s revocation of the subpoena was well within his discretion. Counsel for the Respondent stated that its primary purpose in requesting the material was to potentially discover defamatory statements made by the discriminatees on camera that could be presented as a basis for denying them backpay. The Board has previously rejected similar requests. Parts Depot, Inc., 348 NLRB 152 fn. 6 (2006) (holding that the Respondent was free to cross-examine claimants regarding their postemployment conduct, but that the judge properly precluded it from 201casking questions which amounted to nothing more than a fishing expedition201d). In addition, even if an unlawfully-terminated employee had made defamatory statements to the filmmaker, that alone would not necessarily have been a basis for denying reinstatement or backpay. See Hawaii Tribune-Herald, 356 NLRB No. 63 (2011). Finally, in ruling that the Respondent2019s request was overbroad, the judge indicated that the Respondent was free to narrow its request during the hearing to state more specifically what material it required. There is nothing in the record to indicate that the Respondent made any effort to do so. Finally, the Respondent could have questioned the discriminatees about what they said to Tyler and then, if necessary, renewed its request, but it did not avail itself of this opportunity during the hearing despite the judge2019s invitation to do so.

4 All dates herein are in 2006 unless otherwise stated.

357 NLRB No. 51


The first of those incidents occurred in May, when the publishers limited coverage of the arrest and sentencing of Travis Armstrong, the paper2019s editorial page editor. A second incident occurred in late June, when McCaw formally reprimanded a reporter and three editors for writing an article that included the future home address of actor Rob Lowe, a friend of McCaw2019s. Employees criticized McCaw2019s decision as an abrupt, unwarranted departure from the paper2019s longstanding practice of publishing the addresses of controversial building projects as well as the name of the owner involved. A final incident occurred shortly thereafter when management circulated a revised 201cBusiness Conduct201d policy, placing new limits on employees2019 ability to disseminate information concerning the News-Press to other media outlets. Employees objected to the new policy as a 201cgag order,201d and at least 15 employees, including editors, columnists, and reporters, resigned from the paper following its issuance. The judge found that the employees resigned to protest what they perceived as McCaw2019s and von Wiesenberger2019s improper interference with their reporting of the news.

Immediately following the resignations, the remaining newsroom employees began meeting with representatives of the Graphics Communications Conference, International Brotherhood of Teamsters (the Union). During one of the meetings, employees drafted the following letter, which was delivered to Travis Armstrong on July 13:

We, the newsroom employees of the Santa Barbara News-Press, can no longer remain silent about the intolerable conditions at the newspaper we love.

We respectfully request that you:

1. Restore journalism ethics to the Santa Barbara News-Press: implement and maintain a clear separation between the opinion/business side of the paper and the news-gathering side.

2. Invite back the six newsroom editors who recently resigned: Jerry Roberts, newsroom editor; George Foulsham, managing editor; Don Murphy, deputy managing editor; Jane Hulse, city editor; Michael Todd, business editor and Gerry Spratt, sports editor.

3. Negotiate a contract with the newsroom employees governing our hours, wages, benefits and working conditions.

4. Recognize the [Union] as our exclusive bargaining representative.

We look forward to discussing these issues further with you. Thank you.

To raise awareness of their efforts, employees staged a series of rallies outside the News-Press headquarters and in the community during which they reiterated their demands.

On July 20, employees announced a campaign to persuade readers to cancel their subscriptions if the employees2019 demands were not met by September 5.5 The Respondent refused to recognize the Union or accede to the employees2019 other demands by that date, and the cancellation campaign commenced.

In the meantime, in August, the Union had petitioned for a representation election among the newsroom employees. The employees voted for representation and the Union was certified as the employees2019 exclusive collective-bargaining representative.6

As described below, the judge found that, from shortly after the Union filed its petition through February 2007, the Respondent committed numerous...

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