Wednesday, January 27, 2010
Ninth Circuit Declines to Force Newspaper to Rehire Employees
Divided Panel Upholds Use of Heightened Scrutiny in Dispute Over Content
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday declined to force a Santa Barbara newspaper to temporarily rehire eight employees allegedly fired for union activity directed at pressuring the owner and publisher to refrain from exercising editorial control over news reporting.
A divided panel held the employees needed to make a heightened showing of equitable need because a temporary injunction ordering reinstatement while their unfair labor practices complaint remains pending before the National Labor Relations Board posed a threat of violating the Santa Barbara News-Press’ First Amendment rights.
The employees were fired in a long-running dispute with News-Press owner and co-publisher Wendy McCaw, who in 2004 began taking actions to try to eliminate bias she perceived in the newspaper.
After several editors and reporters resigned in 2006 to protest what they said was censorship of local news, the remaining newsroom employees voted to join the Graphics Communications Conference of the International Brotherhood of Teamsters and staged rallies asking News-Press readers to cancel their subscriptions.
Unfair Practices Complaint
The paper later terminated eight employees and the union filed a series of charges with the NLRB alleging that the News-Press had engaged in a variety of unfair labor practices. An administrative law judge agreed in December 2007, recommending reinstatement for the eight discharged employees, who represented more than 20 percent of the newsroom staff.
However, within weeks of the company’s appeal, the NLRB lost three of its five members, putting the dispute on hold indefinitely. The Senate’s Health, Education, Labor and Pension Committee in October approved President’s Obama’s nominations to fill the seats, but they remain pending before the full Senate.
After initially being denied permission to do so by the NLRB before it lost its quorum, Regional Director James McDermott filed a petition seeking a temporary injunction compelling the employee’s reinstatement in March 2008, but U.S. District Judge Stephen V. Wilson of the Central District of California denied the request.
Ruling that the requested injunction, “in its entirety,” posed “a significant risk of violating [the News-Press’] First Amendment rights” since the “employees’ Union-related activity had as a central demand the ceding of an aspect of [the News-Press’] editorial discretion,” Wilson applied a heightened burden and concluded that McDermott fell short of establishing that relief would be “just and proper.”
First Amendment Concerns
On McDermott’s appeal, Judge Richard R. Clifton wrote that the district judge correctly required a heightened showing of equitable need given the First Amendment concerns. He also said Wilson did not abuse his discretion in finding that the employees’ right to organize did not outweigh the newspaper’s right to exercise and defend its First Amendment rights.
Judge Milan D. Smith Jr. joined Clifton in his opinion, but Judge Michael Daly Hawkins dissented, arguing that the proposed injunction did not pose a significant risk of First Amendment infringement because it did not “require the paper to change its editorial policy” or “dictat[e] what a newspaper must publish.”
Representatives of the NLRB and counsel for the News-Press could not be reached for comment.
Glendale attorney Ira Gottleib of Bush Gottlieb Singer Lopez Kohanski Adelstein & Dickenson, who represented the union, criticized the majority’s decision.
“The First Amendment is no defense to media employers or other employers who engage in this type of retaliation,” he said.
But Nashville, Tenn., labor attorney Michael Zinser, who represented media companies appearing as amici curiae in opposition to the injunction, said the majority “made the right decision” given the “very unique circumstances” presented by “the implication of the First Amendment and the attempt to keep control of content.”
Zinser commented that unless McDermott seeks reconsideration from the Ninth Circuit or certiorari from the Supreme Court, a decision on the eight employees’ reinstatement will be up to the NLRB, but will remain on hold pending confirmation of some or all of Obama’s nominees.
He said the board’s two current members have been ruling on some cases while shelving others that do not present clear-cut issues, and noted that a separate action challenging the board’s authority to act with only two members is currently pending before the Supreme Court.
Despite negotiations that commenced in August 2007, representatives of the News-Press and its employees’ union have yet to reach a collective-bargaining agreement.
The case is McDermott v. Ampersand Publishing, LLC, 08-56202.
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