Read All About It: Santa Barbara News-Press Workers’ Struggle for Justice
October 19, 2012 10:54 am
By: Ira L. Gottlieb
This is the still-unfolding tale of a determined group of newsroom workers in Santa Barbara struggling to achieve a voice and a degree of security in their working lives, while creating the content of a local daily newspaper.
They’ve faced an uphill battle of extraordinary proportions: the hostile, ethically challenged billionaire owner, Wendy McCaw, who bought the Santa Barbara News-Press in 2000, has proven herself determined to resist her employees’ reasonable desires. She has used her editorial and advertising pages as bully pulpits, employing union-busting lawyers in negotiations and litigation to engage in bad faith bargaining and ponderous and harassing courtroom tactics. Indeed, the News-Press’ lawyers themselves have participated in McCaw’s unfair labor practices — including misrepresenting facts about employer practices and policies, surface bargaining, making threats, barging in on a union-sponsored meeting, and issuing subpoenas eliciting confidential information. News-Press management, meanwhile, has fired nine union supporters since 2006 in a bargaining unit now numbering just 25. It has also fired a supervisor for refusing to commit an unfair labor practice, hired temp employees to undermine the unit, artificially lowered employee evaluations of certain union supporters to deny them yearly bonuses, stopped its practice of giving annual merit raises immediately after the union won a representation election, threatened to discipline union stalwarts, engaged in illegal surveillance, and offered testimony repeatedly found not credible in several administrative hearings — all in support of its labor outlawry.
Six years ago, on September 27, 2006, the Graphics Communications Conference of the International Brotherhood of Teamsters overwhelmingly won a secret ballot election conducted by the National Labor Relations Board. The News-Press newsroom employees voted 33- 6 to be represented by the union. The newsroom had historically been unionized, until the New York Times busted the newsroom workers’ union in 1992.
The organizing and eventual election victory came rapidly on the heels of a crisis at the newspaper that July, when owner McCaw, who had appointed herself publisher just three months before, decided to breach her own ethics rules and public promises to maintain a separation between her editorial and news pages. McCaw, whose personal interests colored her understanding of how the news should be reported, threatened and imposed discipline upon newsroom reporters who sought to edit and report ethically and with a modicum of journalistic autonomy (standard components of newsroom employees’ terms and conditions of employment, unionized or not). On July 6, 2006, several senior editors and a columnist resigned from the paper in protest, and the reporters who remained began to organize themselves into a union.
It is saying something that September’s union vote was won by a larger margin than the original card collection percentage at the start of the organizing campaign less than three months before. Management used familiar union-busting campaign tactics (supervisor discouragement; a “consultant” hired to lie about and distort what unions — and this union in particular — did) coupled with ham-fisted use of its own editorial pages to libel the union and its supporters. This understandably pissed off the electorate it was trying to woo, and united the newsroom workers in their desire to protect themselves.
That summer, Santa Barbara, the drowsy burg ordinarily given over to the pursuit of touristic pleasure, featured some dramatic labor theater. Courageous News-Press reporters dressed in black rallied the community’s support at De La Guerra Plaza, the City Hall-adjacent headquarters of the paper. They placed duct tape over their mouths to protest McCaw’s edict pronouncing it a disciplinary offense to talk publicly about the labor struggle inside the Mission walls. Coverage of the events went national and international – the story was covered by “Vanity Fair,” the New York Times, and the American Journalism Review, and was made into a documentary film, “Citizen McCaw.” Anyone seeking to weigh in on the story was well-advised to engage an attorney after McCaw’s private army of legal gendarmes enthusiastically issued litigation threats far and wide — against journalists, filmmakers, union representatives and supporters. McCaw even threatened litigation against local Santa Barbara shopkeepers who placed “McCaw Obey the Law” placards in their store windows.
It is a travesty that I am writing this story after the sixth anniversary of the election, and almost as long again since the illegal firings began in 2006. It was not until May, 2010, that an administrative law judge found (and the NLRB affirmed on September 27 of this year) News-Press management to have been in bad faith from the inception of bargaining in November, 2007. As of this writing, not a single one of the dozens of unfair labor practices brought against McCaw’s team has been remedied, and the parties are still miles apart at the bargaining table. The News-Press knows full well that there is no valid defense to its tactics, yet it has not moved off of any of its blatant bad faith positions. (Ordinarily, there’s no effective labor law remedy for bad faith bargaining. In this case, though, where the Board found the News-Press to have a “proclivity” to violate labor law, the agency adopted the union’s request that the News-Press pay its considerable bargaining expenses for the entire bad faith bargaining period, as recompense for wasting so much time and resources over the years of negotiating futility.)
This campaign, started with the highest of hopes and intentions, has been mired in the quicksand of fundamental flaws in the state of labor law. It has been exacerbated by employer bad faith delay and unethical lawyering, and hampered by both rabid Republican politics and a newfound expansion of the corporate right to free expression.
Eight of the News Press firings — found by the NLRB in August, 2011 to have been unlawful — are due to be considered by the DC Court of Appeals later this year. The second host of unfair labor practice filings has just resulted in a Board decision upholding all of the findings of an administrative law judge, condemning the newspaper for those wall-to-wall transgressions that affected every member of the bargaining unit. (The Board decision in the earlier case — where another judge ruled in the employees’ favor in December, 2007 — was stalled for two years because the NLRB agency, due to anti-worker Republican intransigency in the Senate, dropped to two members at about the same time. The Supreme Court ruled that the Board’s decisions, issued by only two members, were invalid. Chances are, the two members could not agree on a decision in that News-Press case, though in August, 2011 three members, including Republican Brian Hayes, did agree that the newspaper had engaged in “egregious” unfair labor practices.)
In March, 2008, the NLRB agency tried to cut through the administrative muck by going to court to seek a federal judge’s order to reinstate eight of the illegally fired reporters. The lower court and the appellate court majority concluded that despite a devastating impact on the bargaining unit caused by the News-Press’ attempt to crush the union’s strength in the newsroom through commission of egregious unfair labor practices, an injunction putting the reporters back to work might pose some risk of a threat to the newspaper’s right to publish as it saw fit. Hence, in a 2-1 decision issued in January, 2010, the Court of Appeals denied the Board’s request for injunction. The judges who took that view declined to separate McCaw’s right to publish and ensure that her reporters were toeing her editorial line from McCaw’s duty to comply with the rigors of labor law as any other employer must (and as the US Supreme Court declared that newspapers must, some 75 years ago). Last year the NLRB unanimously found no merit to the News-Press’ attempt to use the constitution as a sword to eviscerate labor law rights — a notion that could, if adopted, privilege newspapers from having to comply with any workplace regulation in the name of freedom of the press.
The Board’s bad faith bargaining decision has finally been issued (but is likely to be appealed). The initial wave of News-Press misconduct, found to have been in blatant disregard of the workers’ rights, is soon to be ruled upon by a Court of Appeals. There is still some reason to believe that justice will eventually be served at Santa Barbara’s oldest newspaper. But this discouraging experience amply illustrates the need for profound labor law reform – including increased penalties for violators, mandatory “card check” elections, more regulation over employer misconduct during the organizing phase, and expedited treatment of first contract negotiations. It also demonstrates the need for a better understanding by the public, and the judiciary, of the place unions and collective bargaining should hold in this society, as mandated by a Congress motivated by a depression to boost and protect the middle class. Today, with the middle class shrinking, income inequality spiraling, and corporate dominance ever more overbearing, that need to return to and enhance those values could not be more strongly felt.
Ira L. Gottlieb has been a partner at law firm Bush, Gottlieb, Singer, Lopez, Kohanski, Adelstein and Dickinson since 1989.
Image from here