Santa Barbara News-Press owner and publisher Wendy McCaw scored a huge victory Tuesday morning when a United States Court of Appeals determined the National Labor Relations Board had blended reporters’ requests for more editorial control with protected union claims, and that the line in the sand was clear — the First Amendment protected McCaw.
This decision overturns an NLRB order to reinstate with back pay eight employees fired in 2007. That means it’s likely the end of the road for the group, which said their firing was illegal and in connection with protected union activity over employment terms. The NLRB agreed earlier this year, ordering the paper to hire back the employees.
But the appellate court disregarded that, opining that they were seeking editorial control over the newspaper. “The First Amendment affords a publisher — not a reporter — absolute authority to shape a newspaper’s content,” wrote Senior Circuit Judge Stephen Williams in a unanimous opinion Tuesday. Said News-Press attorney L. Michael Zinser: “The NLRB collided with the First Amendment, and the First Amendment won.”
The dispute between newsroom workers and McCaw has been simmering for years, after the initial explosion in 2006. Then, disagreements over news coverage led to the resignation of several top newsroom employees, including editor Jerry Roberts and longtime columnist Barney Brantingham, (both of whom now write columns for The Santa Barbara Independent).
Among the disputes were how the DUI arrest of former editorial page editor Travis Armstrong was covered, as well as the reporting on the address of a proposed home for actor Rob Lowe.
After the initial group walked out the door, several remaining reporters and editorial staff sought to join the Teamsters Union. The employees sent a list of demands to McCaw, the first of which was to “restore journalism ethics to the Santa Barbara News-Press.”
As reporters slowly began leaving, residents came together to support the remaining newsroom staff, holding rallies and cancelling subscriptions by the thousands. But McCaw stayed strong.
Reporters Melinda Burns and Anna Davison were eventually fired for alleged biased reporting, while six more were subsequently fired not long after hanging a sign on a footbridge over Highway 101 urging drivers to cancel their newspaper subscriptions. They argued, however, that these actions were protected union activities.
After the NLRB agreed with that characterization in 2011, McCaw appealed. And now she’s won. “We knew all along we weren’t going to accept what the NLRB decision was because the law is in our favor,” explained News-Press attorney Matthew Clarke, who went on to say the NLRB is heavily biased in favor of unions.
Former reporter Burns said the group was “devastated” by the news. “This case is about workers’ rights to form a union, and it’s shocking to us that the appellate court judgment cloaked McCaw’s actions in the First Amendment,” she said. She said the decision “seems to justify McCaw’s retaliation.”
The Court of Appeals panel — comprised of three conservative judges, two nominated by President Ronald Reagan, the other by President George H. W. Bush — said the analysis by the NLRB 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 court found a distinction between editorial control and the pursuit of fair wages, benefits, and working conditions. “Here, newsroom employees’ conduct was focused largely on protecting the quality of the relevant product, as they perceived it, from Ampersand’s editorial policies,” wrote Williams.
The only remedy remaining for the fired workers is to ask the Court of Appeals to reconsider its decision, or petition the U.S. Supreme Court. Both scenarios contain grim outlooks for the group.
The Teamsters are still fighting to represent newsroom staff, but the NLRB found in September of this year that the News-Press was bargaining in bad faith. That issue will be heard by the same Court of Appeals next year. Also coming up in the next year is a trial in front of an NLRB administrative law judge regarding allegations of more bad faith actions by the newspaper.