Santa Barbara News-Press

National Labor Relations Board - Administrative Judge Opinions

Dec 26, 2007

31-CA-027950 (N.L.R.B. Dec. 26, 2007)

JD(SF)–37–07
Santa Barbara, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES SAN FRANCISCO OFFICE
AMPERSAND PUBLISHING, LLC
d/b/a SANTA BARBARA NEWS-PRESS
and Cases 31-CA-27950
31-CA-27965
GRAPHICS COMMUNICATIONS CONFERENCE 31-CA-28043
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 31-CA-28104
31-CA-28116
31-CA-28131
31-CA-28151
31-CA-28161
31-CA-28162
and 31-CA-28157
ROBERT GUILIANO, an Individual
Steven Wyllie and Brian D. Gee, Esqs.,
for the General Counsel.
Ira L. Gottlieb, Esq., (Bush, Quinonez, Gottlieb, Singer,
Lopez, Kohanski, Adelstein & Dickenson)
of Burbank, CA, for the Union.
A. Barry Cappello, Esq., Matthew M. Clarke, Esq.
and Dugan P. Kelley, Esq., (Cappello & Noel, LLP)
of Santa Barbara, CA, and
L. Michael Zinzer, Esq., (The Zinzer Law Firm)
of Nashville, TN, for the News-Press.
DECISION
Statement of the Case
WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Santa Barbara,
California, for 17 days beginning on August 14 and concluding on September 26, 2007. The
initial charge, Case 31-CA-27950, was filed was filed by the Graphic Communications
Conference, International Brotherhood of Teamsters (herein the Union) on August 25, 2006. On
February 28, 2007, Robert Guiliano, an individual, filed a charge in Case 31- CA-28157. An
Order Consolidating Cases, Second Consolidated Complaint, and Notice of Hearing (herein the
Complaint) issued on May 31, 2007. The Complaint alleges that Ampersand Publishing, LLC
d/b/a Santa Barbara News-Press (herein the News-Press) violated Section 8(a)(1) of the Act by
threatening employees with discipline if they engaged in an “employee delegation,” interrogating
employees about their union and protected concerted activities, instructing employees to
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remove buttons and signs that read “McCaw obey the law,” and engaging in surveillance of and
interfering with the union activities of its employees. The Complaint alleges that the News-Press
violated that same section of the Act by discharging its supervisor Robert Guiliano because he
refused to issue a pretextual reprimand to an employee in furtherance of that employee’s
unlawful discharge. The Complaint also alleges that the News-Press violated Section 8(a)(3)
and (1) by discharging employees Melinda Burns, Anna Davison, Dawn Hobbs, Rob Kuznia,
Barney McManigal, Tom Schultz, John Zant, and Melissa Evans, canceling the weekly
newspaper column of employee Starshine Roshell, issued two-day suspension notices to 11
employees, issuing lower performance evaluations and failing to award performance bonuses to
four employees, all because those employees engaged in union and other protected concerted
activities.
The News-Press filed a timely answer that admitted the allegations in the Complaint
concerning the filing and service of the charges, jurisdiction, labor organization status,
supervisory and agency status except that it clarified that David Millstein was its agent but not
its supervisor. The News-Press denied that it had committed any unfair labor practices and
asserted a number of general affirmative defenses.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs and reply briefs1 filed by the General Counsel, the News-Press, and
the Union, I make the following
Findings of Fact
I. Jurisdiction
The News-Press, a limited liability company, publishes the Santa Barbara News-Press, a
daily newspaper, at its facility and place of business in Santa Barbara, California, where it
annually derives gross revenues in excess of $200,000, held membership in or subscribed to
the Associated Press, advertised nationally sold products, and purchased and received goods,
supplies, and materials valued in excess of $5000 directly from suppliers located outside the
State of California. The News-Press admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
As indicated, the News-Press publishes a daily newspaper. Wendy McCaw and Arthur
von Wiesenberger are co-publishers. Travis Armstrong is editorial page editor, Scott Steepleton
is associate editor, and Yolanda Apodaca is director of human resources. McCaw purchased
the News-Press from the New York Times in 2000. The News-Press’ offices are located on De
La Guerra Plaza, the central square in Santa Barbara. In the center of the square is a large
grassy area where fiestas and rallies and the like are held.
Part of this case involves concerns of journalistic ethics and the need to assure that
there is no bias in the reporting coming from the news department of the News-Press. In this

1 The News-Press filed a reply brief both to the brief filed by the General Counsel as well as
the brief filed by the Union.
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case these concerns are viewed through two separate pairs of eyes. From the view of Wendy
McCaw, the owner and co-publisher of the News-Press, she saw bias in the reporting and
sought to eliminate it. But from the view of some employees in the newsroom, they saw
McCaw’s efforts as an attack on journalistic integrity through the injection of McCaw’s own
biases into their reporting. According to those employees this resulted in the breakdown of a
“wall” that should separate McCaw’s control of the opinion pages of the newspaper from control
over the news reporting pages.
The News-Press has a conflict of interest policy that contains the following:
The duty of the journalist is to seek truth and provide a fair and comprehensive
account of events and issues, without bias, and without real or perceived
conflicts. Journalists should act independently, free from obligation to any
interest other than the pursuit of the truth. Journalists should present analytical
reporting without bias or stereotype, avoiding undue influence from any outside
forces, including family and peers, advertisers, sources, story subjects, political
and powerful individuals, and special interest groups. In this regard journalists
must avoid impropriety and the appearance of impropriety. The public must have
confidence in the objectivity of the News-Press and know that what they read is
objective and untainted by personal bias.
In 2005 the New-Press held training sessions with the staff about a lengthy survey that
the News-Press had arranged to be performed to survey the readership on a number of matters.
Then editor Jerry Roberts reported, among other things, that the study showed that 64 percent
of the readers of the News-Press thought that reporters writing about local politics tend to
project their views in stories instead of staying neutral. He also mentioned that this percentage
typically shows up in other surveys that assess readership perceptions of bias.
As the tension between McCaw as owner of the News-Press and the news department
had been developing over time, some background is necessary. As indicated above, Anna
Davison is alleged to have been unlawfully fired in 2007; the News-Press claims she was fired
for biased reporting. On July 28, 2004, the News-Press published an article written by Davison
that covered the reintroduction of bald eagle chicks to Santa Cruz Island. McCaw wrote on a
copy of the article that it was very biased and that the article quoted the National Park Service
and U.S. Fish and Wildlife. She noted that the article did not point out the disadvantages to the
reintroduction program. It ended “[Davison] has become like the reporter before her, a
mouthpiece. Disgusting.” She forwarded her comments and the article to Joe Cole, who was
publisher at the time.
On August 1, 2004, the News-Press published an article by Barney McManigal about
how some residents of a community had become fearful of walking outdoors because of a
growing coyote population. The article noted that coyotes had attacked five children in
Southern California, including a 3-year old who was killed, and how the community association
had decided to remove and destroy the coyotes. The article reported how some residents had
lost pets and supported efforts to rid the community of the coyotes while others had mixed
feelings about seeing any animal destroyed. A resident pointed out how the coyotes had rid her
property of gophers and rats. McCaw forwarded a copy of the article to then editor and vice
president of the news department Jerry Roberts with a handwritten note indicating that she felt
the article was biased. At the trial I asked McCaw to explain what, in her view, was biased
about the article. She explained:
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It was anti-coyote. . . . And it was very negative toward those poor animals that
were in danger of being annihilated because of the hysteria that was based on
nothing. . . . Well, I think, you know, there are other groups, in fact, my foundation
brought in a group to discuss the issue with [the community] and tried to get them
to stop this killing because there was really no reason for it. It was mass hysteria
by a couple of people who had a problem with coyotes. .. But if you start killing
coyotes, you create a lot of other problems. So it’s unintended consequences
that were not even being thought about. So those other groups were not even –
[the reporter] never even went to anybody else to see what the other side might
be to this.
McCaw also sent an email message to Cole indicating that the coyotes article was another
piece of biased reporting. She continued:
I’m sick of this. We have talked to [Roberts] repeatedly about one-sided
reporting and NOTHING seems to get done. Another problem in yesterday’s
paper, [an architect who had sued McCaw] was again photographed on the
FRONT PAGE . . . . What is it that is not understood? How many conversations
have we had with Roberts about this? The last article, which I talked to [Roberts]
about last week, was about the baby bald eagles from Alaska taken out to the
[Santa Barbara Channel] Islands (Last Saturday’s front page story, lots of ink and
color photos), which was only ONE side, that of Fish and Wildlife and National
Park Service. No dissenting voices. Anna Davison has been taken in by those
guys and only wrote that side of it. I was told she was supposed to have an
environmental background. I’m think[ing] there is no such thing at the paper.
Today’s article was the same, only worse. No one in the article expressed any
outrage or opposition. I don’t think I’m the only one who feels that way. I wasn’t
quoted, nor was I even asked ([Roberts] never contacted me), so something is
really wrong out there.
Cole spoke with Roberts about many matters, including McCaw’s concerns about bias. He
reported back to McCaw:
Lack of Balance in Environmental Stories. [Roberts] said you were right with the
eagle story. He said the coyote story was done on deadline, which happens
frequently in a daily paper. The newsroom wanted to publish something other
than Barney Brantingham’s column about the coyote issue before the editorial
ran. It was not meant to be the definitive piece on the coyote issue. We
discussed the need to balance the stories by talking with all sides.
At the trial McCaw pointed to an article prepared by Davison and published by the News-
Press on April 9, 2005, nearly two years before Davison’s termination. The article was entitled
“Bullets fly as divisive pig hunt on Santa Cruz Island gets under way.” It began:
Opponents denounce effort as a killing spree. Proponents: Eradication needed
to help native species. The National Park Service disclosed Friday that hunters
have fired the first shots in a long and controversial campaign to rid Santa Cruz
Island of the feral pigs that have roamed here for 150 years.
On April 15, 2005, the News-Press weighed in on the controversy by running an editorial
entitled “Our Opinion: Killing spree off our coast.” The editorial criticized a local member of the
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United States House of Representatives for supporting the “’eradication’” programs. The
editorial continued:
Mrs. Capps isn’t alone in participating in the spin. The reporting by news outlets,
unfortunately including the News-Press, after a controlled media trip to the island
failed to challenge park officials about the former superintendent’s revelations.
Reporters clue readers into their own biases when they don’t aggressively
pursue stories or use derogatory sounding words, such as feral or invasive, to
describe wild creatures that have lived on the island since the 1850’s.
On March 26, 2006, another article written by Davison was published by the News-Press.
This article concerned the relocation of sea otters to the Santa Barbara Channel. Davison’s
article reported the protests of local abalone and urchin fishermen who feared that the
reintroduction of the otters would be the end of their commercial fisheries and would be contrary
to a deal struck between the fisherman and government in 1987 that kept sea otters away from
the waters near Santa Barbara. McCaw felt the article was biased because it did not report
“anything about the otters in a positive fashion.” On April 4, 2006, the News-Press published
another article written by Davison. This article concerned the growth in the populations of foxes
on the Channel Islands. According to the article those foxes had been endangered animals.
McCaw circled Davison’s name on the article and wrote “Continuing biased reporting. She’s a
shill for the feds.”
On April 8, 2006, McCaw sent a message to Cole that began:
Since you’ve been away, I’ve been doing a lot of thinking about the paper and
what has not been happening. I am extremely frustrated that my goals for the
paper are not being achieved, in fact I feel they have been actively thwarted.
McCaw then detailed 21 items that she saw as continuing problems at the News-Press. The
first item was:
“Us” vs “Them” mentality. This has been a very big problem for far too long. Not
because you haven’t heard a lot of my complaints about this, but because you
have done nothing to stop it. This will stop IMMEDIATELY even if it means firing
the whole newsroom and hiring new people, including the editors. This has
nothing to do with the purported wall between news and editorial, it has
everything to do with biting the hand that feeds you.
Later McCaw continued:
Biased reporting. If things weren’t already bad enough with her biased reporting,
Anna Davison has now become a mouthpiece for the Feds and Nature Conservancy
regarding Santa Cruz Island and the fisherman regarding otters. Anything we write
about on the editorial pages, apparently someone feels the need to write the opposite on
the news pages. Virtually every time we write something on the editorial page, she
comes out with the latest press release from the Feds et al, see 4/4/06 article “Island
foxes may be in for a baby boom”. Her “article” on 3/26/06 about the otter meeting is
more of an opinion piece than a news report, saying the “Relocation plan could
jeopardize abalone, urchin,” (says who?); it was pejorative, calling otters “voracious
eaters” and it was again biased in favor of the fishermen against the sea otter. Her
reporting has only one side and it’s hers. This is a continuing problem, again not
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because you haven’t heard anything about it, but because you have done NOTHING
about it, nothing has changed. Since there has been no accountability, bad behavior
has been allowed to flourish. Anna isn’t the only one guilty of this type of reporting,
she’s just the most egregious.
McCaw ended:
I shouldn’t have to remind you or anyone else at the paper what my goals are,
and it would be a waste of time anyway, since they will undoubtedly continue to
be ignored and worse thwarted. With that in mind, I am going to be making some
major changes at the paper in the new future.
On about April 27, 2006, Cole resigned as publisher of the News-Press and McCaw and von
Wiesenberger took over that position as co-publishers.
Two public events led some on the News-Press staff to become concerned about the
issue of journalistic integrity. The first event dealt with the News-Press’ coverage of the arrest
of Travis Armstrong, the News-Press’ editorial page director, for driving under the influence on
May 9.2 Reporter and alleged discriminatee Dawn Hobbs prepared a report on the arrest and
the News-Press published the report on page A-3 above the fold. On May 17 von
Wiesenberger sent a message to Roberts listing 12 questions and concerns, one of which
pertained to the reporting on Armstrong. It read:
Article on [Armstrong]. This was overkill, and was clearly given too much space.
Why? The front page story in Tampa had no similarity to this one. In that case,
as was reported in the mainstream media, the executive editor called in the story
herself so as not to allow another paper to scoop hers. That was not the case
here. Another fact that was different, she had a documented blood level,
[Armstrong] did not. It seems you have it in for [Armstrong] and permitted your
personal views to color your news judgment. I’d like to know why?
But the controversy continued concerning whether the News-Press should report on
Armstrong’s sentencing hearing. The sentencing hearing covered matters such as Armstrong’s
blood alcohol level as well as his sentence. In preparation for the story Hobbs tried to interview
Armstrong, but Armstrong refused to be interviewed and instead claimed the newsroom was
targeting him. Although Hobbs prepared a story concerning the sentencing hearing, the News-
Press refused to publish it; Armstrong had raised the matter with McCaw, who then instructed
that the article not be published.
Among other things raised von Wiesenberger in his May 17 message was “we need
more local news, fewer opinions and fewer columnists.” On May 19 von Wiesenberger replied
to Roberts’ response to von Wiesenberger’s May 17 message.3 Von Wiesenberger indicated
his real concern about two stories that had caused extensive damage with the News-Press’
advertisers, commenting “While I expect you will characterize this criticism as us cowering to
commercial interests and bring out your book of Journalistic ethics, it has nothing to so with
ethics.” It continued:

2 Unless otherwise indicated, the dates that follow are in mid-2006 to early 2007.
3 Roberts’ response was not offered into evidence.
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Biased reporting. A good example is Anna Davison. She seems to have become the
mouthpiece for government agencies and the Nature Conservancy, as every time there
is a press release she writes an article. Very troubling that she seldom has the “other
side” quoted and in virtually every one of her articles that last paragraph shows her bias.
A good example is the headline in her 3/26/06 article “Relocation plan could jeopardize
abalone, urchins”, in the paper and on line “Dining habits keep otters on unwanted
visitors list”. That appears to be her opinion, as there is nothing to indicate that either
abalone or urchins are in danger because of otters or that they are “unwanted”. Her
ending sentence in that article was “’If it was happening on the land and it was doughnut
shops, you’d be concerned,’ abalone fisherman Mr. Rebuck told the crowd.”
The broader message is that the newsroom is not meeting our expectations. This was
expressed repeatedly to Joe Cole but I’m not sure you heard it. The newspaper should
be a “must read” every day. Front page stories should be local, local, local. There
should be many more local stories and fewer wire service stories. What we want to see
are compelling local news stories (not opinions or columns). Since Dawn Hobbs is at
the Police Department let’s get more local crime reporting (like a police blotter) and
Sheriff reports. I’ve sat in on enough newsroom meetings to feel a lack of enthusiasm
from a number of staff. You need to put a fire under the reporters and get them
passionate about the news. If they are on cruise control, replace them. Maybe they are
lulled into some false sense of security as the newsroom parades “awards”. Awards
don’t pay the bills. Readers and advertisers pay the bills. Our readership is declining
and the readers are voting with their wallets and not renewing subscriptions. The letter I
had Carol copy you is indicative of the prevailing feeling in this community. To renew a
subscription because the subscribers only like the puzzles says that something is terribly
wrong with the news in the paper.
The second public event involved actor Rob Lowe’s plans to build a house for himself
and his family on a vacant lot in Montecito. The size of the planned house apparently drew
objections from Lowe’s neighbors and public hearings were held before the Montecito Planning
Commission on the matter. It was standard practice at the News-Press to publish the exact
location of a controversial project under such circumstances and News-Press reporter Camilla
Cohee attended the hearing before the Montecito Planning Commission on June 21 to prepare
an article on the controversy. That same day after the hearing Lowe, who is a personal friend of
McCaw’s, called Armstrong and explained that there had been a meeting before the Montecito
Planning Commission that day and he was concerned about the publication of the address of
the location where he was planning to build a home because he had small children; Lowe
described how he had been involved in stalking incidents. Lowe said he did not want the
address printed in the newspaper. Armstrong replied that he understood how Lowe felt and he
would pass the information to editors in charge of the newsroom. That same evening
Armstrong sent the following email to George Foulsham, the News-Press’ managing editor.
Rob Lowe called me and I told him I’d forward his concern onto the proper
editors: Mr. Lowe is concerned about the publication of the address and location
of his new house because of the safety of his family. He says he believes there
will be a story on his house in the paper tomorrow.
On June 22 the News-Press ran a story that began on its front page written by reporter Camilla
Cohee about Rob Lowe’s “dream home.” The story reported how the Montecito Planning
Commission had narrowly approved the plans for the house over the objections of some in that
community. The story also contained the address of the property at which Lowe’s house was to
be built. Lowe’s assistant called after the article was published and left a message that he was
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going to cancel his subscription to the News-Press because it had published the address. On
June 23 McCaw directly issued substantially identical reprimand letters to George Foulsham,
Michael Todd, Jane Hulse, and Cohee; this was the first time that McCaw had directly
disciplined News-Press staff. The reprimand letters read:
This is an official letter of reprimand concerning yesterday’s front-page story
about Actor Rob Lowe’s “dream home” written by Camilla Cohee and edited by
[George Foulsham, Michael Todd and Jane Hulse.]
Mr. Lowe’s new home address was an unnecessary detail in the story. Including
Mr. Lowe’s address has damaged our credibility with the Lowe family and
potentially damaged relations with other high profile readers. As a result of this
error the Lowe family cancelled their subscription.
It is now company policy that no addresses are to be published. If an editor
wishes to publish an address he/she will get the publishers’ approval. This policy
will prevent any excuses regarding this kind of privacy breach.
Please be advised that future errors of this type will be cause for more severe
disciplinary action, up to and including, suspension and dismissal.
This letter will be placed in your Personnel file.
The prior News-Press policy was to not publish the addresses of crime victims, but it had no
policy concerning the publication of the addresses of celebrities. Rather, in circumstances
involving planning issues that were the matter of public hearings the News-Press routinely
published the address or location of the matter at controversy. Cohee responded to her
reprimand in a letter to McCaw.
This letter is in response to a letter of reprimand issued to me following my coverage of a
planning commission hearing regarding the proposed home of actor Rob Lowe.
Firstly, I find it unfair that I would be admonished for writing a story in a manner
consistent with the style and approach I have applied to every other land-use story I
have covered for the News-Press.
How can it be considered an “error” or “careless news judgment” to have included the
location of a proposed project when I have included that kind of detail countless times in
the past when covering such stories.
As a reporter assigned to covering the Montecito beat, I have never been told to apply a
different standard to stories that might involve celebrities or “high profile” individuals. In
Montecito, that could end up being half the people in the room.In this case, including the
specific location of the 3.4 acre parcel was important to understanding the controversy
before the commission – the impact Mr. Lowe’s property and proposed estate would
have on surrounding properties and homes.
The project itself … and that address was referred to over and over throughout the day
as were the properties and addresses of others in the neighborhood, many of whom are
powerful, influential and/or multimillionaires.
Aerial maps and site maps, as well as addresses, were posted around the room, and
broadcast on public access TV, to give people a sense of the entire area. A detailed
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analysis was done of each property, location and square footage, to give the
commission a grasp of how the neighborhood has evolved.
I can understand why it might not be necessary to include a specific location for a
publication outside of our area.
We are a local newspaper, and it seemed important to give our readers the same
[illegible] of facts provided to those of us who attended the meeting or who watched it on
TV. Our readers in Montecito, in particular, would want to know where the property is
located. I interviewed Mr. Lowe and his attorney throughout the day of the hearing.
They never mentioned anything about having a concern about the address. I gave them
my business card. I am told that later in the same day, Mr. Lowe contacted Travis
Armstrong. I am not saying that I would have written the story differently, but in the
future, if Mr. Armstrong receives tips or comments related to a daily story I’m reporting
on, perhaps he could call me directly, call one of my editors directly, instead of sending
off an e-mail and not waiting for a response.There is no guarantee that an e-mail sent
after deadline will actually be received. Lastly, I am a meticulous reporter, a stickler for
detail, who has devoted 10 years to making the News-Press the absolute best paper it
can be. I do not want my reputation and official file to be tarnished by breaking a policy
that did not exist until after the fact.
Now that I am aware of a new policy against including addresses, I agree to follow it.
McCaw replied that same day.
I’d like to address the issues here. First, your response is not helpful and I’m
disappointed that you want to argue about this.
Common sense would dictate that publishing a residential address of a high profile
person is not only thoughtless, it can be downright dangerous. Apparently this was lost
on the newsroom and in the editing process; no one was thinking about this and
apparently no one had ever thought about this, otherwise this reprimand wouldn’t have
been such a surprise.
Just because you have included this information in other stories does not make it right
nor does it obviate the need to be concerned about others safety. There was no logic to
having the specific location identified; it added nothing to the story. The location was not
the issue. What was the issue was an unhappy neighbor weighing in on the purported
loss of a viewscape and secondarily the size of the house.
Although the information may be “out there”, it’s up to you as a reporter to be judicious
about what to include. In this case there was no point in putting this in, irrespective of
whether or not the information was “out there”. You did not use good judgment and it
was careless reporting. It was irresponsible of you to invade the owners’ privacy in such
a way by not only publishing the address but the conceptual drawing of the house itself.
Public access TV, as you may be aware, probably does not have 40,000 or more
viewing; the paper reaches that many and more.
It is not your job to write for those in Montecito who may be curious nor is it your job to
put information out there that is not germane to the story.You seem to forget that the
property was under Sheryl Berkoff’s name, not under Rob Lowe. Using his name took
the story to another level. And the placement in paper was absurd. This is not a page
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one, above the fold story. Nowhere in your letter have I seen any concern about the
property owners, who are high profile and have small children. You seem to be giving
more importance to the idle curiosity of others. The fact that Mr. Lowe called Travis
Armstrong instead of you might indicate something. The fact that Travis didn’t speak to
one of the editors directly might indicate something as well, but blaming Travis for not
getting this information in the manner you want is like shooting the messenger. There
shouldn’t need to be a policy regarding addresses, this is a matter of common sense.
The fact that I had to write a letter of reprimand about this indicates to me that we have
some very serious problems at the News-Press. The letter of reprimand will stay in the
file.
Todd also responded to McCaw concerning his reprimand. In pertinent part he stated:
Including the address was intentional, appropriate and even necessary for the best
understanding of the story – even a casual reading of an edited Web version leaves one
wondering why a story about a piece of property neglects to mention where that property
might be.
No one disputes that a newspaper’s owner and/or publisher has the absolute right to
make and enforce whatever policies they feel are appropriate. . . . But to punish hard-
working people doing the right thing whose “violation” occurred ex post facto borders on
the malicious and defamatory.
…
That someone might be unhappy with a newspaper story after it appears, and might
even cancel their subscription, is one of the many costs for the vigorous application of
journalism, and a price I thought we all implicitly accepted in whatever role we have at a
newspaper. And that anyone has privacy rights that exceed those given to average
citizens seems to abrogate what we might term the Storke Doctrine: “Publish the news
that is public property without fear of favor of friend or foe.”
The News-Press’ handling of the Rob Lowe matter raised a concern among some that, as
Melinda Burns described, “for a publisher to squelch that practice on behalf of a Hollywood actor
seemed to set very bad precedent for openness and fairness and honesty in reporting. . .“
On June 22 Yolanda Apodaca, the New-Press’ director of human resources, gave
employees a memorandum that some viewed as a “gag order.” It was titled “Business Conduct
policy –REVISED” and read, in pertinent part:
Confidentiality
Employees may have access to confidential information about the New-Press
business, advertisers and news stories before their publication. It is essential
that the confidentiality of these matters be maintained and protected at all times.
This includes the unauthorized disclosure, release, sharing or leaking of any
proprietary, personnel or other information involving the New-Press to other news
organization or media outlet.
Such disclosures are strictly prohibited and will be subject to disciplinary action,
up to and including immediate termination.
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Any confidential information acquired as a result of employment with the New-
Press may not be used for personal advantage or profit, nor be divulged for the
advantage or profit of anyone else.
On July 3 Armstrong became Acting Publisher as McCaw and von Wiesenberger left for
vacation. On July 5 George Foulsham, managing editor, and Don Murphy, deputy managing
editor, resigned from their positions at the New-Press. Other resignations quickly followed. On
July 6 Roberts sent to McCaw a message asserting:
With all due respect, whatever your intentions may have been, your actions in regard to
the newsroom over the past two weeks have been widely perceived, both inside and
outside the paper, as unwarranted, hostile to loyal employees and violative of
fundamental principles of public interest journalism.
At a time when we should be celebrating the talent and teamwork that led to our
strongest ever showing in the CNPA competition, we instead have a newsroom under
siege by the owner, whose actions are viewed as damaging to the paper, arbitrary and
disrespectful towards committed, hard-working staff members.
…
I wish to make clear that I strongly disassociate myself from your issuance of letters of
reprimand . . . regarding a story involving a controversial construction project proposed
by the actor Rob Lowe. I believe the reprimands not only are unjustified, but also
damage the professional reputations of these professional journalists. . . . The fact that
you disciplined these people for violating an alleged “policy” which was not in effect at
the time of the story only makes the letters more questionable.
Whether or not to publish Rob Lowe’s address – which had already been widely
publicized during a lengthy hearing and in public documents – is a journalistic judgment
call on which honorable people can disagree. Based on my 32 years of experience
working in every capacity in newsrooms, however, it is not a matter for which formal
discipline is meted out. For the record, I also wish to register my profound disagreement
with the June 9 order, given to me by your co-publisher through your attorney, to kill a
news brief following up an earlier story about Travis Armstrong’s drunk driving case.
It is routine in drunk driving cases involving public figures such as Armstrong (see our
coverage of a similar situation involving the spokesman for the City Administrator) to
report in follow-ups both the blood alcohol level . . . as well as the disposition of the
case. For the News-Press to suppress such information in the case of a high-profile
employee who in many ways is the face of the newspaper, represents a deplorable
double standard that violates journalistic ethics.
The letter criticized von Wiesenberger’s earlier reference to Robert’s bringing out his book of
journalistic ethics, claiming that it was “an important, industry-wide set of standards, values and
guidelines for ethical newsgathering.” Roberts also complained about von Wiesenberger’s
criticism that Roberts had run stories that had upset advertisers. Roberts said it was troubling
that von Wiesenberger was inferring that the newspaper not run stories that might upset
advertisers, claiming that this breached the wall between the newsroom and the business
department “which underpins the most fundamental tenets of public interest journalism.” In the
message Roberts gave the 30-day notice required under his contract of his intent to quit and
indicated that he would inform the newsroom of his decision that day. After reading the
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message Armstrong decided that Roberts should leave the premises that day rather waiting for
the 30 days to expire.
Roberts’ resignation that day stirred emotions. Employees gathered as he was being
escorted from the newsroom by Armstrong and Apodaca; some employees sobbed and hugged
each other and tried to hug Roberts. Jane Hulse shouted “Fuck you, Travis. Haven’t you done
enough?” Armstrong then told Hulse that because she too had already resigned and she too
needed to leave the building. Hulse then again directed the expletive to Armstrong. Then
Roshell also shouted “fuck you” at Armstrong. I return to this incident below. That day, July 6,
more people resigned from their positions at the News-Press. They included Jane Hulse, city
editor, Michael Todd, business editor, Gerry Spratt, sports editor, Scott Hadley, senior reporter,
Chuck Schultz, courts reporter, Shelley Leachman, college issues reporter, Joshua Molina, City
of Santa Barbara reporter, Barney Brantingham, a columnist who had worked for the News-
Press for 46 years, as well as Cohee. On July 7 Gerry Spratt, sports editor, resigned. Other
resignations followed; Scott Hadley, senior writer on July 12 and Colin Powers, presentation
editor, on July 18. They all resigned to protest what they perceived as McCaw’s and von
Wiesenberger’s unethical interference in the news-reporting function of the newspaper.
B. Union Organizing Effort
The resignations spurred employees to seek out the Union. Melinda Burns, who was
fired on October 27 and who is an alleged discriminatee in this case, contacted the Union; she
arranged a meeting at her home on July 6. About thirty employees met there with Marty
Keegan, the Union’s representative; the Union’s attorney was also present. Other meetings
followed during which Burns and other employees signed the Union’s authorization cards.
During one of the meetings Keegan distributed a contract that a union had with Newsday in New
York. Employees reviewed the contract and discussed how the grievance and arbitration
procedure in that contract might provide them with some protection in light of the discipline the
News-Press had imposed on reporter Camilla Cohee in the Rob Lowe matter. Melissa Evans,
an alleged discriminatee, in particular recalled reading the byline protection language in the
contract that read:
Newsday has a practice of consulting with reporters when necessary and
practical before making major changes to their work. A byline will not be used
over the employee’s objection.
They also reviewed and discussed the following that Burns had discovered online and that
appeared on the letterhead of the Newspaper Guild of Greater Philadelphia:
PLEDGE OF NON-INTERFERENCE WITH EDITORIAL PRODUCT
The Employer recognizes that it is essential to the Inquirer and the Daily News that its
employees who are engaged in the gathering, writing or editing of the news shall remain
free to fulfill their respective functions and responsibilities without interference,
disruption, or threats of retaliation from any source, including from the directors, officers,
agents and shareholders of PMH, or any related entities.
Therefore, the Employer agrees that these editorial functions shall at all times remain
independent of the ownership and control of PMH, and no director, officer, agent, or
shareholder of PMH shall attempt in any manner, directly or indirectly, to influence or
interfere with the editorial policies and functions of the Inquirer and the Daily News as
described above, or the decisions of the Publisher involved therein.
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The Guild shall have, in addition to those remedies available at law, the right to pursue
to immediate arbitration any breach, or attempted breach, of this provision of the
agreement. The parties agree in such event, the arbitrator shall have the authority to
enjoin the Employer, its officers, agents, shareholders, etc. from such conduct, and to
fashion such other relief that arbitrator considers appropriate to protect the members
involved.
Philadelphia Newspapers, Inc Newspaper Guild of Greater
Philadelphia, Local 38010
By: ______________________ By: _____________________
Dated: ____________________ Dated: ___________________
During one of these meetings the employees prepared a letter with a list of the demands
they wanted to present to the News-Press. The letter, dated July 13 and addressed to
Armstrong, read:
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.
That same day a group of about 15 employees, including Burns, delivered the letter to
Armstrong in his office. After they walked into his office, Armstrong stood and told the
employees to back away, that he felt uncomfortable. Barney McManigal, also an alleged
discriminatee in this case and the spokesperson that day for the employees, replied that they
just wanted to give him the letter. Armstrong then accepted the letter. Another employee said
that they would like an answer within 72 hours. The employees then returned to work.
On July 14 the Union and its supporters held a noontime rally in De La Guerra Plaza in
front of the entrance to the News-Press building. The rally was to protest the “gag order” that
the employees felt had been imposed by the News-Press concerning the employees’ ability to
speak to the media about the events that recently occurred there. At noon about twenty
employees emerged from the front doors of the News-Press led by Burns; Dawn Hobbs, whose
evaluation in December and whose discharge on February 5 are the subject of unfair labor
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practice allegations in this case, and Starshine Roshell, whose column was later cancelled and
is also the subject of an unfair labor practice allegation in this case, followed at Burns’ side. The
rally was attended by about 200 onlookers. Burns began the rally by stepping up to the
microphone, introducing herself, and said that although she knew everybody was there eager to
hear about what had been happening at the News-Press and they wanted very much to talk
about it but they had been ordered not to talk to the media. Burns said that if they broke the
new rule they could be fired, she said she was very sorry but she could not talk to them that
day, and she stepped back into the line of News-Press reporters who were present near the
microphone. The employees then placed duct tape over their mouths. Another reporter then
stated that a majority of the staff had committed to joining the Union and he read the four
demands that the employees had presented to Armstrong the day before. The event received
wide coverage by the Santa Barbara press, televisions stations, and bloggers. The News-Press
itself covered the event on its front page the next day. That coverage had photographs of the
event that included Burns and Roshell. It was also reported in the Los Angeles Times; a
photograph of the event that included Burns accompanied that report.
On July 17 the News-Press delivered its response to the employees’ July 13 letter. That
letter, signed by Apodaca, stated that the News-Press respected the employees’ right to decide
whether or not to have union representation but that the News-Press did not think that union
representation was in the best interest of the newspaper, employees, or readers. The letter
indicated that the News-Press believed that more could be accomplished working together
without the outside interference of a third party, and the News-Press declined the requests to
recognize the Union and invite back the editors who had resigned. A response was also given
verbally that day by an attorney for the News-Press to the newsroom employees. Among other
things, he said that the matter of ethics could not be included in a union contract.
On July 18 another event was held at De La Guerra Plaza. The purpose of the event
was to protest the perceived collapse of ethics at the News-Press. At noon about 15
employees, including Burns and Roshell, filed out of the News-Press building and assembled in
a line. They held four signs each listing one of the four demands referred to above. Burns held
one of those signs. About 600 people attended this event. Speakers at this event included the
mayors of the cities of Santa Barbara, Goleta, and Carpentaria. This event too was widely
covered the local media as well as by the Washington Post.
On July 18 McCaw sent a memorandum to staff and friends that read:
I want to personally congratulate the whole team for your great work in receiving two first
and five second place awards from the California Newspaper Publishers Association on
Saturday. This is further proof that the News-Press is still the great paper it has always
been, thanks to our dedicated and talented staff.
We are rapidly moving forward to complete our new team in the newsroom. While there
are still some difficulties ahead, we are picking up momentum and should be back on
track very shortly. Our search for a new editor is well underway.
My responsibility as owner is to balance the needs of the paper, the business and
journalism. I respect the traditions of journalism and believe that the best way to run a
paper is to hire good people and let them do their job, and that is exactly what I am
doing. While it is a fact that tensions will always exist between the news staff and
management, discussions and debate lead to better news coverage. I firmly believe that
this is healthy and promotes excellence in journalism, a principle to which I am deeply
committed. In the future, I expect this type of debate to focus on professional issues, not
personal matters.
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To make the News-Press an even more professionally and personally rewarding place to
work, I welcome your comments, recommendations and feedback so we can have an
open dialogue to work collectively and collaboratively as we further improve the quality,
coverage and accuracy of our paper.
I am deeply appreciative of the loyalty and expressions of support from the hundreds of
News-Press employees who unfortunately, were caught in an emotionally charged
situation. The many calls and letters of support from the community have also been
gratifying. My heartfelt appreciation and thanks goes to each of you for continuing to get
the paper out from under these trying conditions. Please be assured that I will keep you
updated with any developments as they occur.
On July 20 another event was held in De La Guerra Plaza and about 12-15 employees,
including Burns, attended. Marty Keegan, the Union’s lead organizer, read the demands and
stated that they were giving the News-Press 45-days to work things out. The group also
announced a campaign to persuade readers to cancel their subscriptions as of September 5, if
the demands were not met. The group distributed pledge cards that read:
Save the Santa Barbara News-Press
I, _____________, support the Santa Barbara News-Press newsroom staff in its
effort to restore journalistic integrity to the paper, obtain recognition and negotiate
a fair employment contract. Cancel my subscription by Sept. 5, 2006, if the
employees’ demands have not been met to their satisfaction.
Name:
Address:
Phone:
E-mail:
It should be noted that one of the four original demands – invite the former editors back to their
positions – was omitted and was not thereafter linked to the subscription cancellation campaign.
This event was covered by the local media. The News-Press’ coverage was accompanied by a
photograph showing Keegan and several employees, including Roshell, holding up the
subscription cancellation cards at the event.
On July 25 the News-Press published an opinion article written by McCaw. In that article
McCaw gave her position on, among other things, the recent resignations, freedom of the press,
and the union organizing campaign. In the article McCaw stated: “Violations of our paper’s
policies and standards are what brought on this conflict.”
In the evening of July 26 a community forum was held at a theatre in downtown Santa
Barbara. This event was sponsored by the Santa Barbara Community Action Network and was
titled “Honest News and the Free Press, What Can We Do Now?” Burns was one of the
speakers at the event which was attended by several hundred people. Burns spoke about how
the News-Press as it had existed for 150 years was in real danger because the journalists were
under assault from management. She said that nine top journalists had resigned because the
owner of the News-Press was interfering in the news. Burns said that McCaw had recently
imposed a gag order prohibiting the employees from making disloyal remarks about the
newspaper but Burns said her first loyalty was to her profession. Burns said that the question
was whether the newspaper would reflect the world views of McCaw or would it reflect the views
and the lives and the vision of the entire community. She explained that in order to restore
journalistic integrity to the News-Press the employees had decided to form a union and she
described the demands that had been submitted to the News-Press. She told the audience that
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the journalists who remained desperately wanted to practice their profession in an atmosphere
of respect for journalism ethics and she was asking for the help of the community by signing the
subscription cancellation cards. Two employees, one of whom was Roshell, handed out the
subscription cancellation cards at the end of the event. The next day the News-Press ran an
article about the event that quoted some of the remarks Burns had made.
Thereafter News-Press employees, including Burns, began distributing the subscription
cancellation cards at events such as the Saturday farmer’s market in downtown Santa Barbara.
Burns collected more than 100 cards; she turned them over to Hobbs. The subscription
cancellation effort became the centerpiece of the Union’s campaign concerning the News-Press
as the Union took placed advertisements in the Santa Barbara Independent and on a local radio
station during the month of September.
On July 30 the News-Press began publishing columns written by Laura Schlessinger. In
her August 3 column Schlessinger reported on a couple who sided with the News-Press and
against the Union’s subscription cancellation effort by buying a second subscription to the
News-Press. Schlessinger encouraged readers to do the same.
Scott Steepleton played a role in many of the decisions that are the subject of the unfair
labor practice allegations in this. In July Steepleton was promoted to city editor and he held a
meeting with the news department employees to announce his promotion. During the meeting
the employees questioned Steepleton concerning McCaw’s involvement in the news
department. Steepleton responded by saying that because McCaw was the owner “she had the
right to be part of whatever she wants to be part of.” By late July Steepleton was aware of the
fact that the Union was promoting a campaign to have readers cancel their subscriptions to the
News-Press by a September 5 deadline and that employees who supported the Union were
handing out the yellow cancellation cards to get readers of the News-Press to do so. On August
10 Steepleton was again promoted, this time to associate editor. This put Steepleton in charge
of the overall management and supervision of the news department. He succeeded Charles
Boucher, who had been interim editor after Roberts resigned on July 6. Steepleton testified
that in August he relayed the content of the July meeting he had with employees, described
above, to McCaw “where it seemed to me like [the employees] wanted to [do] what they wanted
to do when they wanted to do it without any input from management.” At the trial the New-Press
claimed that this evidence supports its argument that the union campaign was directed at telling
McCaw “that she can’t be involved in running her own newspaper.” I pause to comment on this
testimony. First, there is no specific evidence supporting Steepleton’s description of the July
meeting he had with the employees. Moreover, it is completely at odds with the record as a
whole in this case. In other words, it strikes me as an obvious exaggeration that serves to
undermine Steepleton’s credibility as a witness. I comment more on the credibility of
Steepleton’s testimony below.
The Union filed a petition with the NLRB on August 10 to represent a unit of news
department employees. The next day the News Press reported on the filing of the petition and
quoted Ira Gottlieb, the Union attorney, and Agnes Huff, a spokeswoman for the News-Press.
The article continued:
“The filing of a petition is simply the initiation of the NLRB process and we will
cooperate full with them,” Mrs. McCaw said in a statement.
Newspaper spokeswoman Agnes Huff said in a statement late Thursday that
“after repeated strong-arm attempts to unionize the Santa Barbara News-Press
without going through the NLRB process, union leaders today conceded defeat
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and filed a petition with the NLRB.”“ These ugly tactics, known as a ‘corporate
campaign,’ attempted to force the paper into accepting a union without an
election. Tactics included personal attacks against management and the owner
of the paper, encouraging the public to cancel subscriptions and advertising
through the ‘yellow card’ boycott, and continuing to spread lies and
misrepresentations about working conditions at the paper.”
…
“A tragedy is unfolding at the News-Press and we have to stop it,” reporter
Melinda Burns said in a statement. “We desperately need to practice our
profession in an atmosphere of openness and fairness, so essential to the
freedom of the press. Only a union contract can guarantee that we will be
treated with respect.”
Added crime reporter Dawn Hobbs: “We are dealing with an intolerable situation
at a newspaper that had previously garnered many top journalism awards. The
union will serve as a tool to restore the newsroom to its prior top-notch status.
In her statement, Mrs. McCaw rejected charges about a breach of journalistic
integrity and meddling on the part of management.
“Further attempts at Teamster extortion will not be tolerated,” added Mrs.
McCaw. “We are fully committed to protecting the livelihood of our News-Press
employees. The paper will continue to publish daily, long after this campaign is a
distant memory.”
On August 10 Steepleton announced a number of adjustments he made to the work
assignment of many employees in the newsroom. Roshell, Evans, Hobbs, and Davison were
among those given additional duties.
On September 5 the Union and twelve of its supporters held a press conference. There
Keegan announced that because their demands had not been met he was asking the
community to cancel their subscriptions to the News-Press. The media, including the News-
Press, again reported this event. Burns among other employees was in a photograph that was
featured in that coverage.
On September 24 a rally and fundraiser was held in De La Guerra Plaza. The rally was
to let the community know that the NLRB-conducted election was coming in a few days and that
the employees attending the rally were confident that the Union would win the election. The
demands were again stated and the employees asked for the support of the community. The
fundraiser followed the rally and the attendants were asked for contributions to raise money for
journalists who were leaving the News-Press. About 200-300 people attended the rally and it
was covered by the local media. The Santa Barbara Daily Sound headlined the event in its
September 25 edition. With it appeared a photograph of Dolores Huerta, a farm laborer
organizer, delivering remarks at the rally with a raised clenched fist. In the background were
several employees including Burns. A banner bearing the message “Cancel Your Newspaper
Today” was also displayed. This banner, measuring 8 feet wide and 4 feet high, becomes
involved in the discharge of six employees discussed later in this decision.
The election was held on September 27; the Union won by a vote of 33 to 6. The
election was covered by local media and was picked up by the Associated Press. The Santa
Barbara Daily Sound headlined coverage of the election in its September 28 edition. Among the
photographs included in the coverage was one of Hobbs hugging Burns in the aftermath of the
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Union victory. Burns was also in two other photographs that were part of the coverage. The
Santa Barbara Independent contained photographs of the Union’s supporters; Burns appeared
in one of the photographs.
The News-Press filed objections to the election and a hearing was held before Judge
William L. Schmidt on January 9 and 10. On March 8 Judge Schmidt recommended that the
objections be overruled and August 16, 2007, the Board adopted Judge Schmidt’s
recommendations and certified the Union as the collective bargaining representative of the unit
employees.
The News-Press ran several editorials concerning the union organizing effort. On
November 9, in an editorial entitled “Our Opinion: Union compromises journalism ethics,” the
News-Press commented on the role that union money played in county elections and asserted
that the Union had a long history of political donations and dealings. It quoted a matter from a
New York newspaper that claimed that a union’s political contributions had made editors and
staff concerned about the paper’s coverage of the news. It stated “For journalists who believe in
independence and being impartial, [the union’s] tactics and practices present ethical problems.”
Another editorial, dated November 14, read “Opinion: No place for union bias.” The editorial
referred to “Measure D,” a tax increase proposal that was defeated by the voters in a recent
election. It discussed how the Yes on Measure D committee had used the News-Press’
nameplate, photos, and story for a “slick” brochure and that this gave the impression that the
News-Press was supporting Measure D. This incident is discussed in more detail later in this
decision. The editorial continued:
Reporting must be straightforward, a goal the News-Press management strives
for at all times. During the past election, another challenge was to make sure
that readers didn’t perceive a pro-union bias in some stories about candidates
backed by particular unions.
. . . .
Still, we’re troubled if or when readers or candidates say they believe they detect
pro-union bias in election and other stories.
A December 12 piece read: “Opinion: Teamsters, ethics, & big spending” and began:
As we’ve previously noted, the News-Press is standing firm against allowing
outside union organizers to influence news coverage or interject bias into
reporting.
The Teamsters organization wants to represent certain reporters and copy
editors at this newspaper, and we’ll take it seriously when readers say they
believe they detect pro-union bias in stories.
However, there is no evidence in this case that the News-Press ever claimed that prounion
biased articles were ever written by its staff. The December 12 piece continued, describing a
report concerning a lawsuit brought by the U.S. Justice Department against the Teamsters in
1989 concerning racketeering and organized crime. The article then again referred to the New
York newspaper matter continuing:
Readers know the influence that unions in general have on local elections.
Union dues can go to support candidates, even if individual union members don’t
want their money to go to these campaigns.
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But where else does money taken from the paychecks of union members end
up? In the case of the Teamsters, does the money pay for a top-heavy
bureaucracy and well-paid union bosses? A reform-minded group, calling itself
Teamsters for a Democratic Union, maintains a lengthy list of union bosses who
are in the “$150,000 club” and “$100,000 club” in terms of salaries paid for by
union dues.
The opinion piece continued in a similar vein by describing how Teamsters officials allegedly
receiving multiple salaries and holding meetings in “posh resorts.”
III. Credibility of the Witnesses
The facts in this decision are largely based on a composite of the testimony of Melinda
Burns, Tom Schultz, Barney McManigal, Anna Davison, Dawn Hobbs, Starshine Roshell,
Melissa Evans, Karna Hughes, and Rob Kuznia. Even taking into account the fact these
witnesses are alleged to be discriminatees and therefore stand to benefit from the outcome of
this case, I nonetheless conclude that their testimony was truthful. Their demeanor was serious
and believable and they tended to corroborate each other. The testimony they gave was
supported by documentary evidence and fit convincingly with the record as a whole. Burns, a
long-term veteran of the News-Press, in particular impressed me with her careful, thoughtful
responses; she seemed to understand the vital importance to tell the truth in this proceeding.
For these reasons I rely on her testimony as a foundation for many of the facts in this case. I
was also impressed with Schultz’s testimony; it was rich is detail and flowed naturally. I have
relied heavily on his testimony concerning the allegations in the Complaint stemming from
events of August 24 set forth below. I questioned Schultz rather extensively about the August
24 matter and his demeanor while responding as well as the content of his testimony reinforced
my conclusion concerning the reliability of his testimony. I deal with the News-Press’ challenge
to Schultz’s credibility below.
As indicated below Linda Strean testified on behalf of the General Counsel. I have
considered the fact that she admitted being a personal friend of Jerry Roberts and worked with
him not only at the News-Press and but at another newspaper also. I nonetheless credit
Strean’s testimony to the extent it is cited in this decision; to that extent her demeanor was
impressive and her testimony was consistent with other evidence in this case. In assessing the
testimony of Michael Todd I have taken into the fact that he was part of the group that resigned
on July 6 and that he earlier had received a written warning related to the Rob Lowe incident
described above and then, after he wrote a message to McCaw protesting the warning, he was
suspended for an allegedly unrelated matter that had occurred weeks earlier. Nonetheless, I
rely on his testimony to the extent that it described the editing procedures in the newsroom and
his working relationship with Burns. In that regard his testimony was largely uncontested.
Sarah Sinclair worked for the News-Press for over twenty years until her resignation in February
2007; during that time she held various management positions in the advertising department. I
found her testimony, also largely uncontested, to be credible. Andrea Huebner worked for the
News-Press from April 1999 until her termination on September 12, 2006. Huebner’s demeanor
was convincing and her testimony on key matters was corroborated by the testimony of other
witnesses. I rely on it also. Marty Keegan, the Union’s lead organizer, was also a witness in
this proceeding. His testimony largely corroborated that of other employee-witnesses
concerning the organizing campaign and too was mostly uncontested. In addition, he provided
testimony concerning the pledge of non-interference set forth above. His demeanor was
sincere and convincing and I credit his testimony.
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The testimony of Robert Guiliano requires more explanation. He had difficulty answering
some questions directly and seemed eager to voice his opinions on matters even when not
asked. Even more troubling was Guiliano’s concession that he did not believe the penalty of
perjury applied to testimony in NLRB hearings because, according to Guiliano, Steepleton had
lied during the hearing before Judge Schmidt and yet received no punishment. Accordingly, I
have been cautious in relying on Guiliano’s testimony alone. I give an example of how I dealt
with Guiliano’s testimony. Guiliano testified that he had a conversation with Davison after she
received her 2006 evaluation from Steepleton; this is described in more detail below. During
that conversation, according to Guiliano, Davison expressed concern about the low ratings that
Steepleton had given her. Guiliano had recently attended six days of management training and
learned to give staff clear expectations of what needed to be done and then follow-up afterward.
Guiliano told Davison that he would give her assignments at the beginning of the week and then
at the end of the week he would send her something in writing indicating that she had
completed her assignments and she was doing a good job. Guiliano testified that he then
reported all this to Steepleton, but Steepleton vetoed the plan, saying that Guiliano could not tell
Davison that she is doing a good job while Steepleton was telling Davison that she was doing a
poor job. I have decided to credit Guiliano’s testimony in this regard because Davison credibly
corroborated the first part of this testimony, documentary evidence supports the management
training portion of it, and Steepleton did not credibly deny the last part.
I have decided not to credit Steepleton’s testimony except to the extent that it involves
purely background and uncontested matters or when it constitutes admissions against the
interest of the New-Press and then only to the extent it is contained in this decision. I have
scattered instances concerning Steepleton’s credibility in other parts of this decision when it
seemed more appropriate to do so in a given context rather than repeat the entire context again
here. Steepleton seemed overeager to answer in the affirmative to blatantly leading questions.
For example, Steepleton testified in general concerning meetings he had with McCaw in August
where she allegedly stated that she wanted bias out of the newspaper. The next question along
this line was: “Next, when Mrs. McCaw told you that bias was something that she wanted to get
out of the newspaper did she or did she not indicate to you that she wanted you to be vigilant
about that?” Steepleton answered “Absolutely.” Take the matter of obscenity in the newsroom.
Steepleton was asked a series of questions by counsel for the General Counsel. Did Roberts
swear quite a bit in the newsroom? Steepleton answered “If he did swear, he didn’t swear in my
presence.” Didn’t Foulsham routinely swear in the newsroom? “Not in front of me.” Didn’t
Hulse occasionally swear in the office? “Not that I recall.” Did you ever hear Todd swear in the
newsroom? “I don’t think so.” Keep in mind that before his promotions to management
positions in July 2006 Steepleton was a senior writer and therefore was not someone around
whom others in the newsroom might fear cursing. Steepleton’s demeanor while answering
those questions was entirely unimpressive; it had a smirking quality to it.
Yolanda Apodaca also appeared as a witness. I conclude that her testimony was
generally credible. Her demeanor was confident and she was careful not exaggerate in a way
that might benefit the News-Press. Her testimony fit comfortably with other undisputed parts of
this record. Although much her testimony did not concern many disputed factual issues, I have
relied on it, with one exception noted below, to the extent it is contained in this decision. For
example, the General Counsel sought to prove that the News-Press had a progressive
disciplinary policy largely through the testimony of Guiliano; Apodaca testified that there was no
such formal policy. I credit her more convincing testimony over that of Guiliano’s.
Travis Armstrong also gave testimony in this case. Concerning the Rob Lowe incident,
he testified that the News-Press had a prior practice of not publishing the home addresses of
celebrities and that practice was based on common sense. However, this testimony is
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uncorroborated, contradicted by a number of other more credible witnesses and by the
correspondence on this matter from McCaw herself. I do not credit this testimony. More
credibility issues concerning Armstrong are discussed below. Armstrong’s general demeanor
as a witness was not particularly impressive; the content of his testimony seemed exaggerated
more to make a point than to relay the facts. I rely very little on his testimony in my findings of
fact in this case.
Wendy McCaw appeared as a witness in this case. She testified that as early as 2002
and 2003 she had complained about perceived bias in the reporting of Burns, who was fired for
alleged bias reporting and who is a discriminatee in this case. But McCaw’s testimony was
given in answer to leading questions and was without specific context or supporting details. Her
demeanor as a witness was not sufficiently persuasive to convince me to accept this
uncorroborated testimony. In other respects I have credited her testimony, to the extent set
forth in this decision. But, as explained below, I do not credit her testimony concerning whether
six of the alleged discriminatees would have been fired anyway under a theory of after acquired
evidence of misconduct.
I have also considered von Wiesenberger’s testimony. I have credited those portions of
his testimony that appear in this decision, but I have not done so otherwise because von
Wiesenberger appeared prone to exaggerate to enhance the litigation prospects of the News-
Press. For example, among the points raised in the May 17 message he sent to Roberts,
referred to above in the paragraph concerning the reporting of Armstrong’s arrest, von
Wiesenberger wrote:
The “Okies” series seems questionable. While I appreciate the idea of an in
depth look at the immigration issue, the title is at the same time disparaging (the
term “Okies” was a derogatory term) and biased, to the extent it forms the
conclusion that the analogy sticks, while the reader [should] be the one who
comes to the conclusions.
This comment focused on the use of the term “Okies”, it made no comment that the content was
biased. Yet at trial von Wiesenberger testified that the article was “was just one-sided, and our
readers were very disappointed with it.” Conveniently, the article was written by Burns, an
alleged discriminatee in this case. I do not credit von Wiesenberger’s testimony in this regard.
Rather, his earlier comments concerning the use of “Okies” with no complaint of bias more
accurately reflects his impressions at the time. In that same message von Wiesenberger told
Roberts:
I believe Joe Cole had told you not to do a Tuesday column. I need to reiterate
no column. That real estate is for the columnist that you were asked to find.
Have you found anyone?
By the time of trial von Wiesenberger’s testimony was, after being asked the leading question
“And why were you stopping the columns?” “We were stopping the columns in the newspaper
because we felt that the columns were not what people wanted to read.” (Emphasis supplied).
This testimony came despite the fact that there was no mention in the message of any decision
to stops columns; to the contrary the message referred to other columns with no indication that
von Wiesenberger that he wanted those columns to be cancelled too. And this is apart from the
fact the message quoted above shows that von Wiesenberger was instructing Roberts to search
for a new columnist at that time. Again, von Wiesenberger’s testimony fits conveniently in the
News-Press’ argument concerning why it cancelled the column of Starshine Roshell, described
in detail below. Von Wiesenberger was not a convincing witness.
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Finally, the News-Press presented the testimony of John Irby as an expert in the field of
journalism. To the extent he testified that in his many years of experience in that field that he
had never heard of a wall separating editorial pages from the news pages, I simply discredit that
testimony as unbelievable. To the extent that he was focusing on the existence of a “wall” as
opposed to a “separation” then his testimony was merely misleading. I questioned Irby directly
on this issue; both his demeanor and the content of his answers were not persuasive. I
conclude that his testimony was influenced by the fact that he was a paid witness.
IV. Legal Overview
Seventy years ago the United States Supreme Court held that the Act constitutionally
applies to news organizations such as the News-Press. Associated Press v. NLRB, 301 U.S.
103 (1937).
Several allegations in the Complaint allege violations of Section 8(a)(1). In general,
the test in resolving these allegations is whether the employer’s conduct tends to interfere with,
restrain or coerce employees in the exercise of their rights protected by the Act. This test is an
objective one; that is, the existence of actual coercion is not required. See California Acrylic
Industries, Inc. v. NLRB, 150 F. 3d 1095, 1099 (9th Cir. 1998). In applying this test the Board
takes into account the “economic dependence of the employees on their employers, and the
necessary tendency of the former . . . to pick up the intended implications of the latter that
might be more readily dismissed by a more disinterested ear.” NLRB v. Gissel Packing Co.,
395 U.S. 575, 617 (1969).
The allegations discussed below concerning the discharges of Burns, Davison, and
Guiliano, the cancellation of Roshell’s column, and the lower evaluations turn on assessing the
motivation of the News-Press. In resolving that matter I apply the shifting burden analysis
described in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981) cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Under that analysis the General Counsel must prove by a preponderance of the
evidence that union animus was a motivating factor in the employer’s adverse employment
action. The elements that the General Counsel needs to prove to meet this burden include
showing that the employees engaged in union or other protected, concerted activity, the
employer was aware of the activity, and the employer was hostile towards that activity. See
Consolidated Bus Transit, 350 NLRB No. 82 (2007), slip op. at 2-3. Moreover, as the Board
stated in Real Foods Co., 350 NLRB No.32 (2007), slip op. at 4, fn.17:
Unlawful motive may be demonstrated not only by direct evidence but by
circumstantial evidence, such as timing, disparate or inconsistent treatment,
expressed hostility toward the protected activity, departure from past practice,
and shifting or pretextual reasons being offered for the action (citations omitted).
When an employer provides inconsistent or shifting reasons for its actions, a permissible
inference is that the reasons proffered are mere pretexts designed to mask an unlawful motive.
GATX Logistics, Inc., 323 NLRB 328, 335 (1997), enfd. mem. 165 F.3d 32 (7th Cir. 1998)
(published in full 160 F.3d 353 (7th Cir. 1998). If the General Counsel meets this burden, then
the burden shifts to the employer to show by a preponderance of the evidence that it would
have taken the action even in the absence of the employees’ union activity. Consolidated Bus
Transit, id.
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As noted above, a purpose of the union activities of the employees was directed
toward what they viewed as a need to restore journalistic integrity at the News-Press. The
News-Press, however, takes the position that the matter of journalistic ethics or integrity is
solely one for management to decide. It contends that efforts by employees to have a voice in
the matter of ethics through their collective-bargaining representative are activities not protected
by the Act. In applying Wright Line in this case I must therefore address this issue. In doing so
I note that this case does not involve Section 8(a)(5) allegations where the precise limits of
permissive and mandatory subjects of bargaining would be properly addressed. Nor do I
necessarily decide what aspects encompassed by this topic will, in the end, be bargainable
subjects. Rather, I simply examine whether there is room for collective bargaining on the issue
of journalistic integrity under current law as applied to the general fact situation of this case.
The starting point in this analysis is the First Amendment protection of Freedom of the Press.
As the News-Press correctly points out, this protection belongs to the publisher of a newspaper
and not to the reporters in their role as employees. Eisenberg v. Alameda Newspapers, Inc., 74
Cal.App.4th 1369 (1999). The Board takes into, as it must, the protections the First Amendment
extends to publishers. In Peerless Publications, Inc., 283 NLRB 334 (1987) the Board
addressed the concerns expressed in Newspaper Guild Local 10, v. NLRB, 636 F.2d 550 (D.C.
Cir. 1980) concerning the Board’s earlier decision in Peerless Publications, Inc, 231 NLRB 244
(1997). First Amendment protections also must be taken into account to assure that a
newspaper’s freedoms of speech and of the press are not offended by the Board’s remedies.
Passaic Daily News v. NLRB, 736 F.2d 1543 (D.C. Cir 1984).
In Peerless the Board concluded that a newspaper could unilaterally implement,
without bargaining first with a union, a code of ethics that was essentially based on ethical
concerns designed to enhance the credibility of the newspaper. The Board stated:
We affirm the view that protection of the “editorial integrity of a newspaper lies at the
core of publishing control,” and that in order to preserve such, a news publication is free
to establish reasonable rules designed to prevent its employees from engaging in activity
which would “directly compromise their standing as responsible journalists and that of
the publication for which they work as a medium of integrity,” without necessarily being
required to bargain initially.” (footnotes omitted).
Id. at 334.
The fact situation in Peerless, therefore, differs from the facts in this case because here the
employees, attempting to act through their collective bargaining representative, were seeking to
restore editorial integrity of the News-Press. The Board stated in Capital Times Co., 223 NLRB
651, 653 (1976), overruled on other grounds Peerless Publications, Inc., 283 NLRB 334 (1987),
that regulations appearing to undermine employees’ integrity would normally affect terms and
conditions of employment since it could strike at the heart of the individuals’ reputations. As
Burns testified in this case:
To keep its credibility, a newsroom has to have independence from the editorial
side of the paper . . . . The editorial side is the opinion side. The publisher’s
opinion is in the editorials. The news side has to have the independence and
freedom to report the news, gather the news . . . and not to be pressured by the
publisher to report it or gather it in a certain way.
…
I don’t think I want to work for a vanity press where every article in the paper
reflects the editor’s, the publisher’s or the owner’s views, but rather I want to be a
serious journalist. I want to able to report the news as truthfully as I can and as
fairly as I can without a publisher telling me how to write it.
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Hobbs testified that journalistic integrity was necessary to help establish the credibility of the
individual journalists whose byline often appeared with the articles they wrote. Evans testified
how their credibility as journalists would affect their ability to develop relationships with sources
and thereby impact their ability to perform their jobs. So it may be that the collective-bargaining
process will allow more flexibility under the circumstances in this case than in a situation where
a newspaper is imposing ethical standards to enhance the newspaper’s credibility. That might
especially be true here, where the News-Press presents itself as a credible newspaper and
expects its employees to maintain high ethical standards yet engages in conduct that
employees believe undermines their credibility as journalists. As stated above, the employees
discussed the possibilities of obtaining a collective-bargaining agreement containing a byline
protection clause similar to those obtained by another union in representing reporters at another
newspaper; they also discussed the pledge of noninterference. All of this shows that there may
be room for bargaining on the matters of journalistic integrity, depending on the particular fact
situation and the language proposed.
Even in fact situations covered by Peerless the Board cautioned that a newspaper’s
degree of control over editorial integrity is not opened-ended but must instead be narrowly
tailored to protect the core purpose of the newspaper. It held:
[T]he rule must on its face be (1) narrowly tailored in terms of substance, to meet
with particularity only the employer’s legitimate and necessary objectives, without
being overly broad, vague, or ambiguous; and (2) appropriately limited in its
applicability to accomplish the necessarily limited objectives.
Applying that test to this case, the News-Press’ ethical standards, seen from the view of some
employees, could be viewed vague and ambiguous as demonstrated by the discipline issued to
Camilla Cohee, who believed she was acting accordance with the News-Press’ standards but
was disciplined nonetheless for standards that were clarified after the fact. As the General
Counsel aptly stated in his brief:
The fact that Cohee had violated no policy of [the News-Press] and that her
article was vetted through the editorial process (consisting of [the News-Press’]
managers) prior to publication, illustrates the arbitrary and vague nature of how
the disciplinary process would be applied. Employees could not know if their
articles, even if approved through the newsroom’s editorial process, would
subject them to discipline for “careless news judgment” because there was no
defined standard. Would that standard be determined by publisher and editorial
board member McCaw? Would it depend upon whether the content of an article
upset a personal friend of McCaw’s, as Cohee’s article had done?
Certainly collective bargaining might be able to address this matter. As described below, the
cases of the discharges of Burns and Davison for alleged bias also point to vagueness in the
News-Press’ ethical standards concerning bias. Not only did these employees disagree with the
allegations of bias, but, more importantly, the News-Press’ management itself initially saw no
bias as they approved the articles for publication. Collective bargaining might assist in better
defining the obligations of employees under these circumstances. Also, a grievance arbitration
procedure might assist in assuring that even when a newspaper lawfully unilaterally implements
an ethics code with penalties that the penalties are enforced in an even-handed manner. For
example, as again described below, Davison’s alleged biased story at first warranted only a
reprimand and then for no stated reason was converted into a discharge. All of this supports the
conclusion that the matter of journalistic integrity may be a matter over which employees may
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bargain through its collective-bargaining representative. Finally, as the General Counsel notes
in his reply brief, others who supported the Union’s effort remained employed by the News-
Press; this undercuts the News-Press’ claim that it was genuinely concerned about the effort to
restore journalistic intergrity as opposed to ridding itself of prominent union supporters. I
therefore reject the News-Press’ argument that the employees’ efforts, through supporting a
union, to “restore” journalistic integrity to the newspaper was not protected by the Act. I also
find it unnecessary to resolve the Union’s argument, made in its brief, that this conduct
remained protected even if was unrelated to the employees’ terms and conditions of
employment.
The allegations of the Complaint concerning discharge of the six employees and the
two-days suspension issued to a number of employees turn on whether they engaged in
misconduct such that would deprive them of the protection that the Act would otherwise provide.
Atlantic Steel Co., 245 NLRB 814 (1979). In such cases the Wright Line analysis is
unnecessary. Honda of America Mfg., 334 NLRB 751, 753 (2001).4 As the Board stated:
The Supreme Court has placed its imprimatur on the principle that our Act
protects language during protected activity that “might well be deemed actionable
per se in some state jurisdictions.” Linn v. Plant Guards Local 114, 383 U.S. 53,
58 (1966). “Both labor and management often speak bluntly and recklessly,
embellishing their respective positions with imprecatory language.” Id. (citation
omitted). Such “freewheeling use of the written and spoken word . . . has been
expressly fostered by Congress and approved by the NLRB.” Letter Carriers v.
Austin, 418 U.S. 264, 272 (1974). The protection that our Act provides employee
verbal and written expressions during the course of protected activity is not
without limitation. Otherwise protected activity may become unprotected “if in the
course of engaging in such activity, [the employee] uses sufficiently opprobrious,
profane, defamatory, or malicious language.” American Hospital Assn., 230
NLRB 54, 56 (1977). Nonetheless, “[T]he most repulsive speech enjoys immunity
provided it falls short of a deliberate or reckless untruth.” Linn, supra at 63.
Whether language is protected under the Act does not turn on the inaccuracy or lack of merit of
an employee’s statements absent deliberate falsity or maliciousness. CKS Tool &
Engineering, Inc., 332 NLRB 1578, 1586 (2000).
During the course of the campaign the union supporters used statements such as
“Don’t let McCaw control the news” and “Help us take back the News-Press.” From that the
News-Press argues that the employees were attempting to gain entrepreneurial control of the
newspaper. But these statements, in the context of this case, are simply insufficient to support
that contention. In any event I credit Schultz’s testimony that the union campaign was not part
of an effort to let the reporters rather management control the content of the newspaper. I also
take into account the settled proposition that the motives of employees for participating in
activities protected by the Act are irrelevant as long as the purpose of that activity relates terms
and conditions of employment. Dreis & Krump Mfg. Co. v. NLRB, 544 F. 2d 320, 328 fn.10 (7th

4 But see Bridgestone Firestone South Carolina, 350 NLRB No. 52 (2007), where the Board, without
explanation, applied a Wright Line analysis in assessing the lawfulness of discipline imposed on an
employee while speaking in favor of unionization during a lunchroom conversation with co-workers.
Moreover, the Board there cited Honda of America Mfg., 334 NLRB 746 (2001), which did not apply the
Wright Line analysis and Aluminum Co. of America, 338 NLRB 20 (2002), which explicitly rejected the
Wright Line analysis under such circumstances.
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Cir. 1976). The News-Press points NLRB v. Electrical Workers Local 1229 (Jefferson
Standard), 346 U.S. 464 (1953) and argues that certain statements made by the union
supporters were disloyal. But statements such as “Banish the Bias” and “McCaw Obey the
Law” are clearly protected by the Act and are not disloyal. Beverly Health and Rehabilitation
Services, 346 NLRB No. 111 (2006), slip op. 3-4 and cases cited therein. See also Community
Hospital of Roanoke Valley v. NLRB, 538 F.2d 607, 610 (4th Cir. 1976). It is also well settled
that employees may urge consumers to withhold patronage from an employer with whom the
employees have a labor dispute. Equitable Life Assurance Society of the United States, 343
NLRB 438 (2004); Arlington Electric, Inc., 332 NLRB 845, 846 (2000) and cases cited therein. It
follows that the appeals made by the employees here to have subscribers cancel their
subscriptions to the News-Press were not disloyal; rather it conduct protected by the Act.
Finally, I note that while one of the four original demands of the employees was to
have the News-Press invite back some managers who had earlier resigned, that demand faded
out as the union campaign progressed and before the News-Press engaged in any of the
conduct alleged in the Complaint in this case. I therefore find it unnecessary to analyze
whether, as the Union argues in its brief, that conduct itself was protected by the Act. I likewise
find it unnecessary to analyze Smithfield Packing Co.,v. NLRB (4th Cir. 2007) 2007 U.S. App.
Lexus 28030, cited by the News-Press in its reply brief.
In its brief the News-Press cites Five Star Transportation, 349 NLRB No. 8 (2007) and
similar cases. However, those cases are clearly distinguishable. As the Board majority pointed
out in Five Star, the employees there made ancillary attacks on the quality of the employer’s
services and those matters were unrelated to any labor dispute or working conditions. In this
case I have concluded above that none of the comments made by the employees, when viewed
in context, fall into that category.
Having set forth the facts, explained my credibility resolutions, described the
applicable legal principles, and disposed of preliminary legal issues, I now address the specific
allegations in the Complaint.
V. Unfair Labor Practice Allegations
A. Cancellation of Roshell’s Column
The Complaint alleges that on about August 17 the News-Press cancelled the weekly
column of Starshine Roshell because she supported the Union. The New-Press contends that
Roshell’s column was eliminated as part of a new business model that eliminated all columns
written by New-Press employees.
As indicated above, Roshell was an active and visible supporter of the Union. Roshell
began working for the New-Press in 1995. She wrote a column that appeared on the front page
of the Life Section of the Sunday edition of the newspaper; the News-Press does not consider
that section to be in the news portion of the newspaper. It covered topics such as trends, pop
culture, sex, romance, parenting and relationships. Roshell’s columns were very popular
among the News-Press’ readers and the News-Press used her photograph, among others, in its
marketing advertisements. In 2003 Roshell won a first place award from the California
Newspaper Publishers Association in the category of Columns, Commentary and Criticism. In
addition to her column Roshell wrote an average of two stories per week. These stories were
mostly for the Life Section of the newspapers and covered topics such as human interest,
home, garden, and food. She also wrote theater and music reviews.
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The following are excerpts from Roshell’s 2004 evaluation.
Starshine is one of the most creative and innovative writers in the newsrooms. This
year, she generated a seven-part fictional serial aimed directly at children to lure a new
readership.
Her bi-weekly column is now weekly and it has a loyal readership. When it doesn’t run
we hear about it. Her topics have ranged from toy parties to speaking more Yiddish to
thong underwear and the death of the low-rise jeans (trend) as well as cheerleading
camps, sexy songs and the grocery strike.
…
Starshine’s work is creative, smart and clean.
…
For the last two years, Starshine has thought of, outlined and executed two out-of-the-
mainstream serials. This year, it was the children’s serial, “Hocus Bogus.” In this
respect, she is fearless.
And her 2005 evaluation contained:
Talent galore that is poured every week into a popular Sunday column on the Life
section front.
…
Meticulously written copy with an occasional glitch. She’s creative and pushes the
envelope.
…
Starshine and her editor need to figure out how to get more of her in the News-Press.
…
Major writing contributions this year included:
Several nights’ gala coverage of the 2005 film festival for Page 1 as well as Leonardo
DiCaprio interview.
It will be recalled that at one of the rallies described above the employees placed duct
tape over their mouths. On July 30 the News-Press published a column by Roshell entitled “It’s
a sticky subject: Creative uses for duct tape.” The article concluded:
There are downsides to duct tape, of course.
“I recently had occasion to discover that it doesn’t taste that great,” confessed a
colleague of mine.
He joined me and other News-Press reporters for a press conference this month,
when we slapped duct tape over our mouths to protest a company
communication policy that we believed is too restrictive. Covered by media
nationwide, the event taught me two new uses for duct tape:
1. It’s great for making a loud statement without saying a word.
2. When removed briskly and with no small amount of courage, it saves you a
bundle on lip-waxing.
The next week, on August 6, the News-Press published another column written by Roshell and
entitled “What I know about reporters: It’s not about the money.” It included the following:
Our newsroom recently lost some impassioned journalists, the kind of folks who
dropped into the office on weekends because it was their favorite place to be.
Many of them were mentors to me, and the chance to marvel at their particular
passion for the trade was no small part of why I enjoyed coming to work.
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…
These folks (who, it’s worth noting, had the most finely tuned b.s. detectors I’ve
ever encountered) challenged me to ask the tough questions, look at both sides
of every issue and keep my own bias out of my news stories. And last month,
when they felt those basic journalistic tenets were being compromised by the
paper’s management, they left their posts. But far more of us chose to stay.
Some observers of the current News-Press controversy question our integrity for
continuing to work here. Others pardon us on the assumption that we can’t
afford to leave. The truth is that many of the folks who resigned couldn’t afford to
leave either.
…
Credibility is a reporter’s commerce. Without it we are not journalists – we are
typists. So we guard it carefully, like a dancer protects her legs, a surgeon her
hands. If [Laura] Schlessinger can trust me, you can, too, when I tell you the
News-Press staff writers would never put job security over journalistic integrity.
As mentioned briefly above, on August 10 Steepleton made a number of additional work
assignments to newsroom employees, including Roshell. Steepleton gave Roshell the new task
of “News-feature stories of the day: Taking the best of the wire and localizing it for A-1, and Life
section as appropriate.” Huebner, the News-Press’ life section editor and Roshell’s supervisor
at the time, clarified with Steepleton that this was an additional assignment for Roshell as time
permitted. Huebner conveyed this to Roshell, who was on vacation at the time. Roshell
responded by email dated August 14:
Hi guys,
I was on vacation when these changes were announced, but [Huebner] filled me
in on the plan. Sounds like fun! I look forward to helping out the news section
when my Life schedule permits it. Thanks for thinking of me.
On August 16, six days after the Union filed its petition to represent the News-Press
employees, Steepleton told Huebner that Roshell’s column was being cancelled under a new
policy. Steepleton told Huebner that the new policy was being implemented so as to remove
the appearance of bias in the news pages and that all columns written by staff were going to be
cancelled. He also indicated that another purpose of the new policy was to make more space
for other stories. Because there were several freelance writers whose columns appeared in the
Life Section, Huebner asked if the new policy applied to them too. Steepleton said no, only to
staff written columns. Huebner asked if the staff written sports columns were going to be
cancelled and Steepleton replied that they were not being cancelled at that time. The result was
that under the new policy as announced by Steepleton the only column then being cancelled
was Roshell’s. The next day Huebner contacted Steepleton on the matter and explained that
because Roshell’s column was the only one being cancelled under the new policy it gave the
appearance that the paper was retaliating against Roshell because of her union support; she
asked Steepleton to consult with his superiors on this matter. Steepleton declined to do so.
Huebner then informed Roshell that her column was being cancelled pursuant to a new policy.
After being asked by Roshell, Huebner explained that only Roshell’s column was being
cancelled at that time. Roshell then met with Huebner and Steepleton. Roshell stated that she
wanted a clarification on why her column was cancelled. Steepleton answered that there was a
new business model that called for more reporting. He said “Reporting, reporting, reporting.”
He explained that there were not going to be any more personality columns. Roshell asked
about the Schlessinger column. Steepleton replied “Let me restate that. No staff-written
personality columns in the news or Life sections.” Roshell asked if any other columnist were
going to be cancelled and Steepleton said he did not know whether the new business plan
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would apply to sports columnists. She asked if she would continue to write the theatre and
music reviews as she had done in the past, and whether other reporters would continue to write
restaurant and dance reviews. After Steepleton told her that she would, Roshell asked, why
because those reviews contained her opinion? Steepleton explained that those reviews were
on a single topic.
During the time period that Roshell’s column was eliminated Mark Patton wrote a sports
column; he was hired as a columnist. Maria Zate compiled a weekly column of local real estate
deals, but this was not the type of a column where she expressed opinions. Neither of these
columns was eliminated.
On September 10 News-Press photojournalist Ana Fuentes wrote an opinion piece that
was published by the News-Press. In that article Fuentes describes how Michael Todd had on
two consecutive days told her that someone wanted to kill her. In the article Fuentes tells how
Guiliano described these comments as a “joke” or “dark humor.” Fuentes commented how
none of the reporters in the newsroom had approached her about the incidents to prepare a
story about them. She described how she as a farmworker’s daughter and her family were
included in articles in the News-Press covering the Nuevo Oakies/Mixtec exhibits and reception
but she asked in the opinion piece:
Where is your inclusion now? Where is the protection and interest you seemed
so dedicated to document? No more grant-making coffers to appease, so you do
not care.
…
The current labor union placards read: “Banish the bias.” Every time I read this, I
say to myself, I wish they would. I wish they would banish the bias. Some of
those same people are still working in the newsroom, just as biased as ever. Not
one asking me how I feel, what happened, are you OK? Not even out of
journalistic curiosity or instinct.
…
The underlying message is that I am dispensable. They looked the other way
because it benefited them. They marginalized and discomforted my life. They
made a mockery of my life and my profession, and yet they are being given
accolades and awarded for their ethics. Pontificating on journalistic ethics at
roundtable discussions.
The next day Roshell asked Apodaca why Fuentes was allowed to write an opinion column after
Roshell’s column had been canceled. Apodaca replied that the circumstances were different; at
the trial Apodaca explained that the circumstances were different in that Fuentes’ column ran in
the opinion pages while Roshell “wanted to write her column in the news pages.” As pointed out
above, however, Roshell’s column did not run in the news section of the newspaper and in this
instance I do not do not credit Apodaca’s after the fact testimony.
On October 3 Roshell resigned from her position at the News-Press;5 she had worked
there for eleven years.

5 The News-Press offered testimony concerning a numbers of emails exchanged between Steepleton
and Roshell after her column was canceled; this testimony and these documents were received in the
record in the absence of objections. I have reviewed those documents and conclude they are not
probative of any matter at issue in this proceeding.
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Steepleton testified that he made the decision to cancel Roshell’s column. However, he
also testified that on July 6, the same date that Roberts and a number of others resigned from
the News-Press, he received a call while still on vacation from Travis Armstrong, the News-
Press’ editorial page director. During that conversation Armstrong offered Steepleton the
position of city editor and Steepleton accepted. Together they decided that Steepleton should
not longer continue to write a column that he had been writing for the News-Press. Also,
according to Steepleton as part of a reorganization the “decision was that we were going to
eliminate columns that reporters wrote in our newspaper (emphasis added).” Steepleton,
however, provided no other details concerning this conversation. He did not provide the context
in which the alleged decision to eliminate reporter-written columns was made. Nor did he
attempt to reconcile this testimony with his earlier testimony that he made the decision to cancel
Roshell’s column. Steepleton identified Amy Orozco, who was not a reporter but instead was
an editor for the News-Press as someone whose column was eliminated. In response to the
leading question “Was that cancellation part of this reorganization?” Steepleton unsurprisingly
answered “Yes.” Steepleton also testified that columns written by Steven Murdoch, Rochelle
Ross, Helen Thomas, Bill Etling, and Randy Alcorn were also eliminated. He testified that these
columnists were stringers6 and not employees and there is no evidence that these persons were
also reporters as opposed to simply columnists. Nor did he provide the dates on which those
columns were cancelled. However, in response to the question “Now the columns that were
eliminated were these columns of employees of the paper or were they columns of independent
stringers or both?” Steepleton clarified that it was both. Barney Brantingham also had a column
with the News-Press; his column ended when he resigned on July 6. As indicated above, on
July 30 the News-Press began publishing a column by Laura Schlessinger. Earlier in his
testimony upon examination by the Union’s attorney Steepleton identified Schlessinger as a
“stringer,” but conveniently Schlessinger column did not fit under the column-elimination
decision because Schlessinger was not also a reporter. I do not credit Steepleton’s testimony
that Roshell’s column was eliminated as part of a broader policy to eliminate columns. Rather, I
conclude he fabricated this rationale and then gerrymandered it so that it conveniently applied
only to Roshell.
Analysis
The cancellation of Roshell’s popular and award winning column was akin to a demotion.
Applying the Wright Line analysis, Roshell was among the more active and visible union
supporters. She expressed that support in the two columns that she wrote, as described above.
Animus towards that activity by the News-Press is shown above by the anti-union campaign it
conducted as described above and below by the many violations of the Act that followed quickly
after the cancellation of Roshell’s column. Timing supports the General Counsel’s case in two
respects. First, the column cancellation followed by a number of days the two columns Roshell
wrote expressing her support for the Union. Second, the cancellation was made shortly after
the Union filed its petition to represent the employees in the news department.
I turn now to determine whether the News-Press has shown that it would have
terminated Roshell’s column even in the absence of her union support. To be sure, the News-
Press had expressed its view that there were too many columns appearing in the newspaper,
and this concern predated the arrival of the Union on the scene. In fact, as described above,
some columns were eliminated but I have concluded that the News-Press has failed to show by
credible evidence that they were eliminated as part of a new business plan or model that would

6 Steepleton described a stringer as someone who is not employed by the News-Press but is a
contract per piece type writer.
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include the elimination of Roshell’s column. Importantly, the News-Press had recently added
Schlessinger’s column and continued to run the sports column. Finally, to the extent that the
News-Press relies on Steepleton’s testimony to explain a lawful reason for canceling the
column, I have concluded that his testimony is not credible. In conclusion, I fail to find any
lawful explanation to support why the News-Press cancelled Roshell’s column, so I do not even
get to the point of assessing whether the News-Press has met its burden of showing that it
would have cancelled the column for such reason. Rather, this conclusion serves to buttress a
finding that the cancellation was unlawful.
The News-Press argues that even if it did cancel Roshell’s column because of the
prounion slant of her last two columns it had a First Amendment right to do so. But I have
concluded above that while those two articles played a prominent role in the decision to cancel
Roshell’s column, her other union activities likewise entered into the decision. More importantly,
the News-Press’ First Amendment right certainly would have allowed it not to publish those
columns if it chose not to. It could have instructed Roshell not to cover the union organizing
effort in her columns. For example, the record shows that McCaw and von Wiesenberger were
dissatisfied that the content of columns written by Martha Smigless had shifted from being
gossip-oriented to being political; they directed Smigless’ superior to have Smigless refocus the
column back to its original intent. The News-Press did neither of these; instead it cancelled
Roshell’s column altogether. This the Act forbids and the First Amendment cannot be stretched
so broadly as to pre-empt the Act in this regard. Passaic Daily News, 266 NLRB 898 (1983),
remanded 736 F.2d 1543 (D.C. Cir. 1984), modified 276 NLRB 605 (1985). Because Roshell
resigned her employment with the News-Press the General Counsel does not seek a restoration
order of the column. By canceling publication of the column written by Starshine Roshell
because she supported Union, the News-Press violated Section 8(a)(3) and (1).
B. Threats and Two-Day Suspensions
The Complaint alleges that on or about August 24 Steepleton unlawfully threatened
employees with discipline if they engaged in an “employee delegation.” 7 The Complaint also
alleges that on August 31 the News-Press issued two-day suspensions to the following
employees because they supported the Union:8 Al Bonowitz, Kim Favors, Karna Hughes, Rob
Kuznia, Lara Milton, Mike Traphagen, Dawn Hobbs, George Hutti, Barney McManigal, Tom
Schultz, and Alan McCabe. Lastly, the Complaint alleges that on August 31 Apodaca unlawfully
threatened to discipline employees if they engaged in an “employee delegation.”
On August 24 the employees prepared and signed the following:
Dear Wendy McCaw,
Please respect our wish to be represented by a union without fear of threats or
harassment.
In recent weeks, some of us have been taken off our beats, removed from night
editing jobs and summoned to Human Resources to answer questions about our

7 That term was never fully explained at trial. But whatever it meant, the allegation clearly covers the
events described below.
8 I allowed the General Counsel to amend the Complaint to add Alan McCabe to the list of
employees. The News-Press objected on 10(b) grounds. However the charge in case 31-CA-27965 was
timely filed and clearly allows McCabe’s name to be added to this allegation in the Complaint. Also, at
the hearing the General Counsel withdrew the name of Melissa Evans from this allegation.
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stories. One union supporter was punished with loss of her column. The car of
another supporter was photographed because of pro-union slogans in the
window.
Now we are confronted with a conflict of interest policy that requires us to seek
an editor’s permission before speaking in public on our own free time about our
efforts to unionize.
Finally, some of managers have been pressured to dissuade us from forming a
union.
These actions are unprecedented at the News-Press and clearly seek to rob us
of our individual liberties. Please stop trying to intimidate us. Let us make up our
own minds about joining a union.
The letter appears to have 25 signatures. The first signature was that of alleged discriminate
Melinda Burns, whose discharge is discussed below. It was followed by the signatures of
alleged discriminatees Dawn Hobbs and Tom Schultz.
That same day around 3:30 p.m. about 15 employees assembled in the newsroom for
the purpose of delivering the letter to McCaw. The employees then walked to McCaw’s office
located some 50-60 feet from the newsroom. Steepleton, who was nearby, called Apodaca and
told her that the employees had gotten up and were walking through the newsroom; he asked
Apodaca what he should do. Apodaca advised Steepleton to tell the employees to return to
work. Steepleton then did so but only some of the employees heard him. There is an enclosed
reception office area in front of McCaw’s office through which access is gained to McCaw’s
office. The employees knocked on the outside door, but the employees received no response
from either office. The employees then decided to deliver the letter to Apodaca instead. Her
office is located downstairs from the newsroom and McCaw’s office. Upon arriving at
Apodaca’s office an employee knocked on the door; the employees waited outside because
they could see through the window that someone was in the office with Apodaca. Apodaca then
opened her door and spoke to the employees from there; the employees remained outside her
office. Schultz explained to Apodaca that they wanted to deliver a letter to McCaw but McCaw
was not there. Hobbs asked if there was a lawyer present to whom the employees could deliver
the letter. Apodaca said she would try and locate McCaw for them and Apodaca went inside the
office, made a telephone call, came to the door, and told the employees that McCaw was not
available but Apodaca would try and make an appointment for the employees to meet McCaw.
The employees and Apodaca agreed that the employees would try to meet again with McCaw at
4:00 p.m. The employees returned to the newsroom passing Steepleton on the staircase and
resumed working. The entire event lasted about ten minutes. There was no yelling or chanting
or stomping of feet or any type of disruptive behavior. There is no contention that this was done
on work time as opposed to the afternoon break time. At around 4:00 p.m. Schultz called
Apodaca and asked if McCaw was available. He also asked if von Wiesenberger might be
available. Apodaca put him and hold and then told Schultz that von Wiesenberger was not
available. So the employees decided to simply give the letter to Apodaca and they began
gathering to go down to her office. At that point Steepleton told the employees to sit back down
or they would be sent home. The employees then sat down. Schultz responded that he had
just spoken with Apodaca and had made arrangements with her for the employees to bring the
letter to her. Schultz asked if he could call Apodaca because she was expecting the employees
to bring the letter to her. After Steepleton agreed Schultz called Apodaca and explained what
had just transpired; they agreed that Schultz himself could bring the letter to her. He then did
so.
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That same day Schultz sent the following email message to Apodaca:
On behalf of myself and the other signatories to our letter to Mrs. McCaw, thank
you for handling our request earlier today. I appreciate your efforts to determine
whether she, Mr. Von Wiesenberger, or perhaps one of their attorneys might be
available to personally accept our letter.
Apodaca later replied “You’re Welcome.”
On August 31, seven days later, Steepleton sent the employees the following letter.
Please be advised that you are being suspended without pay for a period of two
workdays. . . .
On Thursday, August 24, you and a group of other employees assembled in the
Newsroom en masse and were told by me that you could meet in the lunch room if you
wanted to assemble, but you could not do so in the Newsroom and you needed to get
back to work. You ignored these instructions.
You proceeded to march to Mrs. McCaw’s office, assembled there a group of 11 or
more, occupying the small area in front of the anteroom. Even though there was no one
at her assistant’s desk in the anteroom, someone in the group knocked loud enough so
that Mrs. McCaw would hear knocking and come out of her office and be surprised,
confronted, and intimidated physically by your group. When she did not (she was not in
her office) someone yelled “let’s try the side door” but did not when another yelled, “the
girl is not there then she is not there.”
This action was a clear and outrageous attempt to physically intimidate Mrs. McCaw and
everyone else in the workplace by the improper and alarming confrontation undertaken
after clear instructions to return to work. I then instructed you to return to work a second
time; you again ignored my specific direction. Instead, you continued to disrupt other
workers by parading through the building, interfering with their work activities, the
activities and movement of employees and others on the stairs and in the hallways. You
then interrupted a meeting in Yolanda Apodaca’s office.
You are hereby advised that any repeat of such action, or any similar action, will lead to
the immediate termination of your employment.
No evidence was submitted to support the various assertions in the suspension letter that the
employees had engaged an attempt to physically intimidate anyone or disrupt the work of
others. The suspensions were never imposed.
On August 31 Apodaca issued a memorandum addressed to all newsroom staff that
read:
As you are all aware, last Thursday, August 24th, during the middle of the work day, a
group of about 11 of our newsroom employees marched en masse through the building,
causing a disruption. Twice they were directed to return to work by [Steepleton], but
they refused. The group assembled in front of the co-publisher’s office and continued to
interfere and disrupt the workplace, intimidate and interfere with workers and impede
access to the hallways and stairwells as they proceeded to march through the building.
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This type of disruption and insubordination is unacceptable and will not be tolerated. We
will not permit employees to threaten and intimidate other employees in this way or any
other manner.
Any employee who engages in this or similar behavior in the future will be subject to
discipline up to and including termination.
Again, no credible evidence was submitted at the trial to support the assertions in the
memorandum that the employees engaged in the activities had threatened, intimidated, or
interfered with anyone or had impeded anyone’s access.
Late the night of August 24 Hobbs sent Schultz an email message that among other
things, congratulated him on doing a great job that day. He replied early the next morning, in
pertinent part:
Today was very interesting. I think the fact that we dragged it out as long as
possible was a great thing. I felt really confident about how I handled the phone
and all that, and that everybody was so calm even as [Steepleton] got
UNGLUED. Their signals were CROSSED 100 percent. [Steepleton] and
[Apodaca] were on totally different pages. I luuuuved that.
As indicated above, I have relied on Schultz’s testimony, among others, in finding the
facts in this section of the decision. The New-Press challenges Schultz’ credibility that the
letter-delivery was free intimidation or disruption based on an email message he sent to about
25 persons still later that morning that read:
Re: update on today’s delivery!
Peeps, we rocked the house, crossed their wires and got em unglued. Way to
go. Anybody feel free to grab me for the full run down on the letter delivery.
…
Lastly, please let your contacts know that our yard signs and window posters are
AVAILABLE. Anybody who wants these should be able to have a pile delivered
on their doorstep. Let’s canvas [Santa Barbara] with these bad ass (not to
mention old-skool letter pressed) placards.
When read in context with the surrounding circumstances, I conclude that the email was nothing
more than a self-congratulatory message phrased in generational slang describing what Schultz
perceived to be a successful outcome to what I conclude was conduct protected by law.
On September 5 a piece labeled “Our Opinion: Union tactics, bias aren’t welcome” was
published by the News-Press. The piece related tactics used by the Union and indicated that
what “this community and our employees should not have to put up with is any sort of
intimidation by anyone even remotely connected to the organizing campaign. The News-Press
management already has needed to take steps to make sure that disruptive behavior doesn’t
continue inside the News-Press building.”
On September 5 Schultz sent another email message that read in part:
[H]earing loss … must be due to the sonic boom we created during our blitzkrieg
through the newsroom on our way to Wendy’s office. Dammit, I must have
banged on that sauce pan to close to my head right before jackhammering our
demands into the floor at HR.
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This was obviously a facetious response to the News-Press’ descriptions of the events of
August 24. It confirms that these messages sent by Schultz were not meant to be taken
literally.
On September 7 McCaw and von Wiesenberger sent a memorandum to all employees
that read, in part:
We regret that in last few weeks those of you who are personally and
professionally dedicated to your jobs are being placed in an uncomfortable and
difficult situation by a small group of employees. The way in which a large
number of newsroom staff marched en masse throughout the building a couple of
weeks ago was a deliberate attempt by them to confront, threaten, and physically
intimidate all of us in the building and interfere with our work.
These aggressive actions created emotional and physical threats among our staff
and will not be tolerated. The News-Press intends to maintain a safe work
environment and protect the welfare of all its employees. Such actions violate
our company policies, professional standards and are an impediment to our
ongoing business operations.Disciplinary notices have been sent to those
employees who engaged in this unacceptable behavior. They have been
advised that any repeat intimidating behavior will lead to further disciplinary
action.
… .
We fully expect the union to continue their usual pressure tactics in an effort to
force the company to give in to their demands. This includes the subscription
cancellation campaign being waged. . . .
Analysis
In Quietflex Mfg. Co., 344 NLRB 1055 (2005), the Board comprehensively reviewed
existing law concerning work stoppages by employees for the purpose of protesting their
working conditions. I apply the law described in that case. The work stoppage here was brief,
lasting only about 10 minutes. The march was peaceful and not disruptive. This distinguishes
this case from Detroit News, 341 NLRB 947 (2004) and similar cases cited by the News-Press
in its brief. The march was in part to protest the unlawful conduct by the News-Press. The
employees had no grievance procedure available to them that could have resolved the subjects
of their protests. I conclude that the march was activity that is protected by Section 7 of the Act.
Although the suspensions were not carried out, the letters of suspension were not retracted;
Apodaca testified that she considered them to be disciplinary reprimands. Moreover, in the
September 5 opinion piece the News-Press indicated that it would continue to prevent what it
labeled as intimidation and disruptive behavior but what I have concluded was activity protected
by the Act. And in their September 7 memorandum to the staff McCaw and von Wiesenberger
wildly mischaracterized the march on August 24 and indicated that if the employees again
engage in that activity they will again be disciplined. I find that by issuing letters of suspension
to Al Bonowitz, Kim Favors, Karna Hughes, Rob Kuznia, Lara Milton, Mike Traphagen, Dawn
Hobbs, George Hutti, Barney McManigal, Tom Schultz, and Alan McCave because those
employees engaged in protected concerted activity, the News-Press violated Section 8(a)(3)
and (1). I have also described above how when the employees began to resume their protected
concerted activities Steepleton threatened to send them home if they continued. Apodaca also
threatened the employees with discipline if they again engaged protected union activity. I find
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that by threatening to discipline employees if they engage in protected concerted activity the
News-Press violated Section 8(a)(1).
C. Termination of Melinda Burns
The Complaint alleges that on about October 27 the New-Press fired Melinda Burns
because she supported the Union. The New-Press asserts it fired Burns for bias in her
reporting. Burns did not receive any written warnings or discipline of any type during her
employment at the News-Press.
Some background is needed in the operation of the news department in the News-
Press. Steepleton, as associate editor, is in overall charge of the newsroom. Reporting to
Steepleton are a business editor, a life section editor and associate life section editor, and a
sports editor. After a story is written it is sent to the editor who assigned the reporter to write it.
The assigning editor reviews it and checks it for grammar, misspellings, completeness, and
bias, among other things. If the story is lengthy and in depth then the assigning editor may
review it several times as it is being created and discuss it as needed with the reporter. From
there the story is reviewed by another editor who again reviews the story for, among other
things, any bias. After review by the other editor the story goes to the copy desk where a
headline is created by a copy desk editor. In other words, one of the key functions of the editors
is to review the stories prepared by reporters to assure that the stories are not biased. And the
identification and elimination of bias is a process that starts but does not end with the reporter.
In this regard it is important to note that there is no evidence that the role editors played in
attempting to eliminate bias or that the standards that they were to apply concerning what
constituted bias were changed by McCaw and von Wiesenberger when they became co-
publishers
Burns worked for the New-Press for 21 years. At the time of her termination she was a
senior writer, a position she had occupied since 1995; as such she worked on projects that took
time to create such as investigative reports. She was one of only three senior writers among
the staff of about 25 reporters for the New-Press. During her work with the New-Press Burns
received about 15 awards and five fellowships. In 2000 the News-Press touted Burns’
achievements in its advertising. In 2003 the New-Press nominated her for a Pulitzer Prize for
reporting. Burns graduated from Harvard University magna cum laude and worked for Los
Angeles Times before joining the New-Press.
On October 1 the New-Press published a page-one article authored by Burns bearing
the headline “Danger Zones.” In general, the article concerned safety issues for children
arriving at school and the increase in traffic at schools during the drop-off and pickup times.
The article reported on the death of a 12-year old who was riding a bicycle on his way to school.
At the time the article was published voters in Santa Barbara County were considering whether
to approve Measure D; if passed this would raise the sales tax to provide funding for various
transportation projects in the county. The article reported on how Measure D, if passed, would
provide funds for safety improvements around schools. It also reported the viewpoint of
opponents of Measure D that other sources of income should be used to improve school safety.
Steepleton edited the article and approved it for publication. Burns had written about 10-15
stories for the News-Press about Measure D before the October 1 article.
Thereafter proponents of Measure D used portions of Burns’ article, along with the New-
Press’ logo, in a brochure they prepared and circulated to members of the community. It is not
uncommon for interest groups to use articles from the press to their advantage in their
advertising. The New-Press however had previously “vociferously opposed Measure D” in its
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editorial pages and it issued a statement to inform the public that it should not be misled by the
brochure into believing that it now supported the Measure. On October 25 the New-Press
published an article written by Steepleton concerning the matter.
On October 10 the New-Press published another page-one article written by Burns
headlined “Axis of Inequality.” Keep in mind that the copy editors and not the reporters create
the headlines. Burns explained at the trial that her assignment was to cover an activist forum
and she accurately did so. Under those circumstances there was no obligation to seek out
other viewpoints because she was not writing a comprehensive story on immigration issues.
Steepleton gave her the assignment to cover the activist forum. The same day the article ran
von Wiesenberger received an email message from the publisher of the Montecito Journal
stating:
If Melinda Burns’ front page article on immigration isn’t a perfect example of liberal bias
and/or advocacy journalism, I don’t know what is. Perhaps you folks just reprinted a La
Casa de la Raza press release by mistake?
Von Wiesenberger forwarded the message to McCaw who noted:
Couldn’t agree with him more. Need to discuss this with [Steepleton] as well as
her upcoming article. Ask [the publisher of the Montecito Journal] if he would like
to send a letter to the editor for publication about this. He needs to know he’s
right about this.
Meanwhile, Burns continued to report on Measure D. On October 14 she reported on
how a taxpayers group opposed to the measure had asked for the state to investigate the use of
public funds by an organization in favor of the measure. On October 15 the News-Press
published another page-one story Burns wrote on Measure D. Both articles were approved for
publication by editors of the News-Press.
Steepleton testified that he made the decision to fire Burns; that decision was made
without any warning to Burns that she had engaged in any conduct that might warrant
discharge. The October 27 termination letter Steepleton gave Burns provides a lengthy
explanation of the reasons for her termination; relevant portions are set forth below.
Reporters have a solemn obligation to report both sides of the issues about which they
write.
A reporter may not inject personal views into the articles. They must always be
balanced. Possibly, there is no greater duty of a reporter. The public relies upon it.
Despite counseling, admonition and warnings over the past five years, you have ignored
this duty and consistently produced biased and one-sided reporting which promotes your
own personal views. You have been given repeated warnings, and every opportunity to
improve, however, you have chosen not to so. We are therefore compelled to terminate
your at-will employment agreement. . . .
Your history of biased reporting has been well documented in your personnel file for
years by many managers:
• In 2001: Your annual review stated: “Melinda tries to be impartial always,
but … it can be difficult to curb unintentional bias on intimately familiar
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subject matter.” Editors at the time reminded you “to get many voices
from all sides of an issue.”
• In 2002, your evaluation by then Managing Editor Linda Strean stated that
“(Melinda) has been criticized in the past for letting her own strong
feelings creep into her stories. That still occurs, but she is trying to be on
guard against it.”
• Your 2003 review, signed by then City Editor Jane Hulse, and Linda
Strean stated: “We are seeing a troubling trend in her writing. Her
personal views on environmental and social issues are creeping into her
stories which keep her from presenting a full, unbiased picture of the
subject matter.”
• In your 2005 evaluation then Managing editor George Foulsham wrote: “I
do believe she carries a green bias, and while she might disagree with
that assessment, she has made a conscious effort to address concerns in
that regard.”
Despite this documented full and long history of biased reporting, you have utterly failed
to change your ways. It is evident that you choose to remain biased in your reporting.
On October 10, 2006, in an article entitled “Axis of Inequality,” you reported on an
immigrant’s rights discussion at La Casa de la Raza and failed to include any opposing
viewpoints. This is an important issue to many in our community and it is imperative that
both sides be presented. You failed to do so.
Another article, one which triggered this decision, was your report on ballot Measure D
that ran on October 1, 2006. Pro-Measure D supporters thought portions of your article
were so weighted in their favor that they used them as campaign literature. Portions of
your article ended up in a campaign mailer from the “Yes on D” campaign distributed to
thousands of voters. Upon examination, your article contained only perfunctory
reference to the views against the Measure compared with advocacy by you for the
[M]easure. Your later Measure D reports that ran on October 14 and 15 also did not
adequately present opinions of those who might have a viewpoint that differs from the
pro-Measure forces. Clearly, you have axes to grind, and you express it in the stories
you write. The additional reports that ran on October 14 and 15 only contained a single
perspective and what had clearly been presented as your viewpoint, and did not
adequately present this ballot issue. The present management does not believe the
former management should have tolerated your biased reporting for so long. We believe
it is not the responsibility of management to continue to steer you away from bias or edit
your stories to remove your bias. The responsibility to keep out bias is yours and the
duty to be impartial is a personal one for which you are personally responsible. Your
supervisors are not responsible to monitor your articles for bias.
In light of the repeated warnings and years of cautioning and counseling, your
unwillingness to change your ways is inexcusable. You have been given five years to
improve your reporting and have chosen not to.You are reminded that the confidentiality
provisions in the employee handbook require you to maintain the private information
concerning your employment at the News-Press.
We will respect your privacy and will not initiate any comments upon the reasons for this
termination. However, should you initiate, either directly or through your many long-term
connections with fellow journalists, public comment on the same, we will respond with
the true facts concerning the termination, including your long history of biased reporting,
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which almost every supervisor and manager for whom you reported made it a point to
note in your personnel file.
In the 2001 evaluation (actually for the year 2000) referred to in the termination letter
Burns was rated as “consistently exceeds expectations,” the highest rating possible under the
rating system used that year. The entire quote regarding her alleged bias in that evaluation,
only portions of which appears in the termination letter, is:
Melinda tries to be impartial always, but as with any senior status/veteran
reporter, it can be difficult to curb unintentional bias on intimately familiar subject
matter. She is constantly vigilant, and city editors watch for any environmentalist
bias that could slip into stories and remind Melinda to get many voices from all
sides of an issue.
In her evaluation for 2001, not mentioned in the termination letter, Burns received an overall
score of 6 out of a possible 7. The evaluation contained the comment “My only concern, and I
should say that it has not been a serious problem at any time, is that she has a very strong
liberal stance, and occasionally seems initially reluctant to contact or play up a contrary view.”
Burns received a rating of 6 in that category of the evaluation. There are no complaints of bias
in Burns’ 2002 evaluation. In the 2003 evaluation referred to in the termination letter Burns was
rated as “Consistently average. Improvement required.” in the category of the evaluation that
referenced the concerns over her bias. Burns’ 2004 evaluation, not mentioned in the
termination letter, states “She has been criticized in the past for letting her own strong feelings
creep into stories. That still occurs but she is trying to be on guard against.” She received a
rating close to being “Consistently Excellent” in that category of her evaluation. In the 2005
evaluation referred to in the termination letter the mention of Burns “green bias” occurred in the
category “Accuracy/quality of work.” In that category Burns received a numerical rating of 5, the
highest possible score and the highest rating Burns received in any of the eight categories listed
in the evaluation. The “Professional” category in that evaluation contains the following
comment: “Melinda is very professional and polite, and now that we’ve addressed my concerns
of bias I believe she’s a more balanced reporter too.”
Burns’ termination letter mentions the article she wrote on October 1 as the incident that
triggered her termination. As indicated above, Steepleton edited the article and approved it for
publication; he conceded that he did not think it was biased at the time he reviewed it. He
testified that he received a verbal reprimand “around this time for allowing biased reporting to
get into the newspaper.” Of course editors reviewed the other articles mentioned in the letter
and they approved them for publication without sending them back to be rewritten to eliminate
bias; Steepleton conceded that he did not investigate who had performed that editing.
Concerning the portion of the termination letter describing how pro-Measure D forces had used
a portion of the article Burns had written, Steepleton conceded that politicians or proponents of
measures frequently use newspaper articles in their campaign literature. In the termination
letter Steepleton refers to an article written by Burns entitled “Axis of Inequality;” Steepleton
conceded that typically the copy desk, and not the reporters, creates the headlines for stories.
Steepleton also conceded that not all articles must contain both side of an issue. For example,
reporting on an event or conference would not require contacting the other side.
Linda Strean worked at the News-Press as managing editor from June 2003 until March
2005 after having worked at the San Francisco Examiner as page 1 editor, various management
positions at the San Francisco Chronicle and several other newspapers. Strean also taught a
journalism class at the University of California, Berkeley, Graduate School of Journalism. While
working at the News-Press Strean frequently reviewed Burns’ work; she signed off on Burns’
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2003 evaluation that Steepleton quoted in Burns’ termination letter as well as Burns’ 2004
evaluation not mentioned in that letter. Strean did detect bias in Burns’ reporting, but it was not
a consistent problem and that when she pointed out the problem in the context of a story Burns
was invariably cooperative and addressed the concern by revising the story. She explained:
Every reporter brings a set of experiences and opinions to their work and so it’s
sort of a constant job of an editor to make sure that that doesn’t creep into the
work and bias also appears in stories that’s not through any fault of the reporters.
Sometimes it’s inexperience. Sometimes it’s not knowing all the stakeholders
who need to be addressed in a story and that’s when an editor comes in, as well,
to try and make sure that all – all points are kind of covered.
Based on her experience at the News-Press Strean explained:
An editor is there to be an extra set of eyes on a story and to try and read it in the
way a reader might and make sure that all stakeholders are represented in a
story, that it’s told fairly and it’s told accurately . . . .
Strean described Burns as “one of the finest reporters I’ve ever worked with.”
Michael Todd worked at the News-Press from March 2000 until he resigned as part the
group resignations on July 6, 2006. Todd directly supervised Burns from September 2003 until
his resignation. He described himself as right of center while Burns was left of center, but those
perspectives together lead to balanced reporting on the many contentious issues covered by
Burns.
Analysis
I again apply the Wright Line analysis in resolving the issue of whether Burns’
termination was unlawful. Burns was one of the two leaders in the News-Press supporting the
Union. She was one of the Union’s most visible supporters, as fully set forth above. The News-
Press’ hostility towards the union activities of the employees is documented above and below.
The termination came barely a month after the Union overwhelmingly won the election in which
Burns had played such a significant role. The termination came in the midst of the continuing
effort by the employees to gain immediate recognition and in the middle of a continuing unlawful
campaign by the News-Press to thwart that effort. I take into account the fact the termination
came without warning to an award winning, 21-year veteran employee with an otherwise
unblemished work record. I conclude the General Counsel has amply met his Wright Line
burden.
I turn now to examine the record to see if the News-Press would have fired Burns even if
she had not supported the Union. In the termination letter Steepleton quoted from prior
evaluations of Burns that mentioned concerns for bias. But in context those concerns were not
significant enough for the News-Press to even deny Burns a bonus, much less merit disciplinary
action. Rather, the fact that the comments in the evaluations were taken out of context only
serves to show that the News-Press was seeking to create support for its decision to fire Burns
where none existed.
The October 10 article concerning immigration is also mentioned in the termination. But
Burns’ assignment was to cover an activist forum and she accurately did so. Under those
circumstances there was no obligation to seek out other viewpoints because she was not writing
a comprehensive story on immigration issues. Steepleton gave her the assignment and he
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conceded that not all articles must contain both side of an issue. For example, reporting on an
event or conference would not require contacting the other side. I note that the various editors
approved this article for publication; they are assigned according to the News-Press’ own
procedures to search for bias, yet they apparently found none. Nor were any of these editors
informed by the News-Press that they were not properly doing their jobs. This fact is important
because it refutes any contention that the News-Press, with McCaw and von Wiesenberger as
co-publishers, was trying to refine or change the past standards of what constituted bias. Under
these circumstances I conclude that the News-Press has failed to show any shortcomings by
Burns concerning this article.
The event that triggered Burns discharge, according to the News-Press, was her
coverage of Measure D in her October 1 article. In support of its contention that the article was
biased, the News-Press points to the fact the proponents of Measure D reprinted portions of
Burns’ article. But as Steepleton conceded it is not unusual for proponents to use News-Press
publications for their partisan benefit and, of course, it does not necessarily followed that when
they do so the articles were biased. In this regard there is no evidence that the News-Press has
a policy of disciplining, much less terminating, employees whose articles are used for partisan
purposes. To the contrary, there is no evidence that the News-Press has done so in the past or
intends to do so in the future. The bottom line for the News-Press’ argument is that Burns’
article was biased because Steepleton said it was. Keep in mind that Steepleton himself had
reviewed the article and approved it for publication, and he never explained what made him
apparently change his mind. And while it is indeed the prerogative of the News-Press to define
bias and to change the definition of bias, it may not use unsupported assertions as a pretext to
mask unlawful conduct. In that regard no one ever told Burns that the October 1 or October 10
articles published by the News-Press were biased until that information appeared in her
termination letter weeks later. Finally, it is important that the News-Press bears the burden at
this point of persuading by a preponderance of the evidence not only that Burns engaged in
misconduct but that it would have fired her for that conduct. Here the News-Press failed to
show that it had ever fired anyone for alleged biased reporting. This fact serves to distinguish
Merrillat Industries Inc., 307 NLRB 1301 (1992), cited by the News-Press in its brief. In that
case the employer presented persuasive evidence that it had fired another employee for petty
theft, the same reason it fired the alleged discriminatee.
At the trial the News-Press pointed to corrections it published on certain facts in the
article Burns wrote on Measure D. However, there is no mention of this in Burns’ termination
letter; instead the letter focuses exclusively on the matter of bias; nor did anyone testify that the
corrections played any role whatsoever in Burns’ termination. I conclude this evidence was
presented as afterthought in a transparent and ultimately unsuccessful effort to buttress its case
for terminating Burns.
I conclude that the News-Press has failed to show it would have terminated Burns even
if she had not engaged in union activities. It follows that by discharging Burns because she
engaged in union activity the News-Press violated Section 8(a)(3) and (1).
Returning to the continuing union campaign, the Union ran an advertisement on the
radio criticizing the News-Press for firing Burns and urging listeners to cancel their
subscriptions. It also contained the appeals “Don’t let McCaw control the news” and “Help us
take back the News-Press.” On November 11 the union supporters held a candlelight vigil.
Signs reading “McCaw Obey the Law” were displayed at that event.
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On November 11 the Union and its employee -supporters held an evening candlelight
vigil protest outside The Biltmore Hotel in Montecito to protest Burns’ discharge. The Biltmore
was the site of the annual News-Press Life time Achievement Awards.
The News-Press, in turn, used its termination of Burns for its own purposes in a piece
published in the newspaper on February 28 that contained the following:
The Facts: Yes, there was bias in the Newsroom at the Santa Barbara News-
Press. So much so that an independent study conducted in 2005 revealed that
over 60% of the readers believed that the news was biased. One reporter’s
recent story regarding a political campaign was so biased that proponents for the
campaign used it as a mailer to voters. These biased reporters have either quit
or been dismissed. Now the Teamsters want to bring back the bias to the News-
Press by forcing the paper to re-hire these ex-employees. We think Santa
Barbara deserves at least one non-biased news reporting company. Don’t you?
…
Honoring the tradition, maintaining the standard, continuing the excellence.
Santa Barbara News-Press, today, tomorrow and beyond.
D. Interrogations
The Complaint alleges that on about December 15 Steepleton, through a written affidavit
distributed to employees, interrogated employees about their protected concerted activities and
on that same date also (verbally) interrogated employees about their protected concerted
activities.
On December 5 the New-Press distributed the following memorandum from McCaw to
all New-Press employees:
Our company manufactures a product, Santa Barbara News-Press, a newspaper of daily
circulation. I made a significant investment when I purchased Santa Barbara News-
Press. As the owner of the business, it is common sense that I have the right to have
significant input into the content of the product that we produce. For anyone to suggest
otherwise is just plain wrong.
Like any other newspaper, we are free to express opinions on the Editorial Page of the
newspaper. With respect to news, sports, and features content of the paper, we strive
for good, fair, accurate reporting. Every day, there are many choices of stories to place
into the newspaper. There are always more stories available than the number we
choose to print. The decision of the content of the pages of the newspaper is solely that
of management. Union or no union, that is not going to change.
All of you know that a union is attempting to organize our newsroom employees. In the
election, the union won. However, we believe that the union engaged in misconduct
before the election, and we filed objections in an attempt to get another election so that
employees can make a free, uncoerced choice. In the event that our objections are not
successful, we will begin the collective bargaining process with the union. If our
objections are successful, the union victory will be set aside and a new election had. We
are awaiting the decision of the National Labor Relations Board on these issues.
Every employer has the right to expect the loyalty of its employees. All employees owe
a duty of loyalty to their Employer. No less an authority that the United States Supreme
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Court has ruled that it is disloyal for an employee to publicly disparage the quality of the
Employer’s product. The Court ruled that was disloyal. The Court ruled that disloyalty is
clearly cause for discharge.
Very recently, the United States Court of Appeals ruled that it was lawful for a Company
to discharge an employee who publicly disparaged the management of the Company.
The Court ruled that those communications were “unquestionably detrimentally disloyal.”
The Court went on to say that an employee loses the protection of the National Labor
Relations Act if the employee’s public attack constitutes insubordination, disobedience,
or disloyalty. The fortuity of the coexistence of a labor dispute affords the employee no
substantial defense. We are certainly going to respect the rights of employees to
engage in activity protected by the National Labor Relations Act. We are also going to
protect our management right to expect the loyalty of our employees. Public
disparagement/disloyalty of the management of Santa Barbara News-Press and/or the
newspaper it produces will not be tolerated, and appropriate discipline will be imposed.
Please do not allow yourself to be “used” by a small group of employees who, in reality,
are attempting to grab from management the right to determine the daily content of the
pages of our newspaper. This they cannot and will not do.
McCaw admitted at trial that she issued the memorandum because employees had been
displaying signs such as “Banish the Bias” and “McCaw Obey the Law”. She believed that
those signs were disloyal.
The New-Press has a written policy covering confidentiality. In July that policy was
clarified to explicitly allow for employees to discuss wages etc. and to allow employees to
communicate with a labor organization and the media concerning unionization.
Craig Smith is a blogger in Santa Barbara; he had been reporting on events at the
News-Press. Steepleton testified that he learned that someone has “leaked” the December 5
memorandum to Smith and it appeared in his blog. Steepleton testified that under his
understanding of the News-Press’ confidentiality policy the December 5 memorandum
“shouldn’t be leaked to anybody, meaning we – we should not give that information out.”
On about December 15, Steepleton called each employee from the newsroom
individually into the conference room at the facility; Apodaca was also present for some of the
interviews. Steepleton told each employee that he was investigating a leak of information
outside the company, that he was trying to find out who leaked the information, and he required
each employee to fill in their name, acknowledge receipt of the December 5 memorandum from
McCaw and sign a statement as follows:
At no time have I provided [the December 5 memorandum] to anyone, copied or
reproduced [it] or showed it with someone outside the newsroom, including
Craig Smith.
Executed this 15th day of Dec. under penalty of perjury, in Santa Barbara,
California.
Thirty-two employees and managers signed the statement. Some employees refused to sign
the affidavit; they were not disciplined. Some employees indicated that they were going to
provide the Union’s attorney with a copy of the affidavit; Steepleton did not voice any objections
to those employees.
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I describe the specifics of two employees who were involved in this matter. Steepleton
handed the December 15 memorandum to Dawn Hobbs at her desk and asked her to sign it.
As described below, Hobbs was a leading union activist who is also the subject of two unfair
labor allegations in this matter. She asked why she needed to sign it and Steepleton answered
because she was being order to and if she did not she would be considered insubordinate and
proper action would be taken against her. Hobbs said that because she considered the
memorandum to be a legal document she wanted to call the Union’s lawyer first before she
signed it. Hobbs then called the lawyer. About 15 minutes later she learned that Schultz had
been asked to go to conference office; she accompanied Schultz there. Once there Steepleton
told them that it did not involve a disciplinary matter and instructed Hobbs to return to her desk.
Schultz then entered the conference room. Steepleton asked Schultz if he had distributed the
December 5 memorandum for publication. Schultz replied “For publication? No.” Steepleton
then asked Schultz if he had given it to anyone. Schultz answered that he had given it to the
Union attorney. Steepleton wrote that down and proceeded to ask who else Schultz had given it
to. Schultz admitted that he had given it to “Marty Keegan, our Union organizer.” Steepleton
then summoned Hobbs to the conference room where he asked her if she had provided the
December 5 memorandum from McCaw to anyone outside the building. Hobbs answered that
she had given documents given to the Union’s lawyer but was not sure if the December 5
memorandum was one of them. After Steepleton raised his eyebrows she explained that there
was so much “paper flying” from Apodaca and McCaw she couldn’t remember if it was she or
someone else to sent the December 5 memorandum to the Union’s lawyer. Steepleton asked
whether Hobbs was going to sign the December 15 memorandum and she answered that she
would not, that she needed to hear back from the Union’s lawyer.
Analysis
I first determine whether the interrogations covered union activity. The questioning was
so broad in scope that it reasonably tended to cover conduct protected by the Act, such as
disseminating the December 5 memorandum to the Union. After all, the December 5
memorandum explicitly focused on the union organizing campaign and threatened discipline to
employees who disobeyed its contents. It therefore should not have been surprising to the
News-Press that employees would provide it to the Union. But the questioning of the
employees covered whether the employees had done so. Indeed, the testimony of Hobbs and
Schultz confirms the fact that the questioning reasonable tended to cover the employees
involvement with the Union. And even after one employee indicated that he had provided the
information to the Union, Steepleton did not narrow the scope of his questioning. Whatever
legitimate purpose the News-Press may have had, the broad nature of its interrogations of
employees exceeded that purpose. ATC of Nevada, 348 NLRB No. 43 (2006).
I now examine whether the interrogations were unlawful. In doing so, I consider all the
surrounding circumstances to decide whether they were coercive. Rossmore House, 269 NLRB
1176, 1177 (1984), enfd. sub nom. HERE, Local 11, v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
The interrogations were conducted by Steepleton, the highest supervisor in the news
department. The employees had to answer the questions under penalty of perjury. There is
little doubt that a threat of discipline hovered over the questioning. The fact that only newsroom
employees were subjected to the interview despite the fact that the December 5 memorandum
was distributed to all employees of the News-Press only serves to heighten the coercive nature
of the interviews. I find that by coercively interrogating employees concerning their union
activities, the News-Press violated Section 8(a)(1).
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E. Performance Evaluations and Bonuses
The Complaint alleges that in mid-December the News-Press issued substantially lower
performance evaluations and then, based on those lowers evaluations, failed to award
performance bonuses to Anna Davision, Dawn Hobbs, Melissa Evans, and Karna Hughes
because those employees supported the Union.
Steepleton prepared each of these evaluations. He conceded that he knew that each of
these employees supported the Union. As the News-Press conceded in its opening statement,
“Hobbs apparently appeared to be the central figure in the union organizing effort.” In fact
Hobbs and Burns were the two leaders in the organizing drive. The most visible and vocal
union supporters worked at the city desk area at the News-Press. Evans, Hobbs, and Davison
worked at the city desk at the News-Press. Burns had also worked there before she was fired.
McManigal, Kuznia, Schultz, all visible Union supporters who were later fired by the News-
Press, also worked at the city desk.
The evaluation process was changed for the 2006 evaluations in that Steepleton
decided that he would do the evaluations for the news department employees except for copy
editors and sports. Employees in the last two categories were evaluated by their direct
supervisors Charles Boucher and Barry Punzal respectively. Before Steepleton began to
directly evaluate these employees the assistant city editor or secondary editor positions did the
evaluations for the newsroom employees. The process was changed, according to Steepleton,
because the narrative portions of the evaluation did not match up with the higher scores given.
When confronted with evidence of employees whose overall scores were increased over the
previous year by Steepleton, Steepleton simply testified that he did not conclude that earlier
evaluations were inaccurate. He gave no specifics to support this conclusion and a reading of
those evaluations does not support his bare assertion. Moreover, it was Apodaca’s job to
review all evaluations to insure that the narrative portions matched the numerical scores and
there is no evidence from her that she was concerned that the narrative portions did not support
the numerical scores. I again do not credit Steepleton’s testimony concerning why he and he
alone decided to write certain evaluations for the year 2006, especially taking into account that
he had supervised those employees for a period of only several months that year and after the
union organizing campaign had begun July. Rather, I look to see if there was another unspoken
reason to explain Steepleton decision to write the evaluations himself.9 In doing so, I note that
all employees working for the city desk and evaluated by Steepleton in 2006 received lower
overall ratings that year than in the previous year.
The overall ratings in the 2006 evaluations were 2.8 out of a possible 5 for
Evans,(compared to 3.9 in 2005), 2.1 out of a possible 5 for Hughes (compared to 3.625 in 2005
and 3.875 in 2004), 2.7 for Hobbs (compared to the highest possible rating in 2000, 5.75 out of
a possible 6 in 2001, 3.73 out of a possible 5 for 2002, 3.8 for 2003, 3.6 in 2004, and 3.56 for
2005) and 2.3 for Davison (compared to 3.7 for 2005, and 3.3 for either 2004 or 2003). It is
significant to note that because employees needed an overall rating of at least 3 to receive a
bonus, none of these employees received one despite the fact that they all had received
bonuses for each of the previous years described above. Neither Steepleton nor anyone else
from the News-Press warned these employees that their performance was deteriorating in 2006.

9 In addition, as the General Counsel points out in his brief, Steepleton asserted that he did not want
employees being evaluated by their friends, yet he evaluated his wife and gave her a perfect score.
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Concerning Hughes, Steepleton noted in her evaluation several times and at trial that
Hughes was repeatedly late in submitting her Public Square columns; that it was supposed to
be completed two days in advance. A more accurate formulation of when the Public Square
columns were to be completed appears in Hughes’ 2004 evaluation:
One of the goals was to have the Public Square ready up to 2 days before
publication date. It has been indicated that this has happened “for the most part.”
[Hughes] should strive to make sure this is business as usual. And, if possible
get far ahead as possible. This would help her Metro editors, especially if a late
breaking story hits their desks.
Hughes received a rating of 4 out of a possible 5 in that category in her 2004 evaluation.
Hughes credibly testified that her practice in submitting those columns did not change since
2004. Her 2005 evaluation had no reference to any timeliness problems concerning the
submission of her Public Square columns. I note that in 2006, the year she received the low
evaluation from Steepleton, Hughes was offered a promotion by her superiors.
Steepleton testified concerning several incidents to support his lower evaluation of
Evans. Evans covered the religion beat for the News-Press. As described above, on August 10
Steepleton emailed the staff concerning “Newsroom assignments.” The email noted that: “the
following new assignments will take effect: … Melissa Evans: K-12 education. News and
features from the schools.” Steepleton related an incident where someone reported to him that
Evans said that the News-Press was no longer covering religion. Steepleton talked to Evans
about the matter and Evans explained that she thought the email message meant that she now
had the education beat instead of the religion beat. Steepleton clarified that the education desk
assignment was in addition to her religion assignment. Thereafter Evans covered both areas.
During the evaluation period Evans took five weeks of medical leave. At the hearing the News-
Press’ attorney asked Steepleton “Was there any issues with Ms. Evans concerning substance
abuse?” Steepleton answered “Yes.” After objections, I required that the News-Press first link
the substance abuse allegations to Evans’ evaluation before I heard further evidence on the
matter. When I asked Steepleton to point out where in the evaluation that issue was raised he
quoted “Melissa sometimes seems caught up in things other than work affecting her time in the
office.” and “Melissa had been out more than a month during my time as associate editor.”
Steepleton testified that these were polite references to the subject of substance abuse.
However, Evans credibly testified that her medical condition did not cause her to be distracted
at the office and that she was never told by anyone that she appeared distracted. In a two-page
response to her evaluation Evans wrote “I was shocked when I received my performance
evaluation by Scott Steepleton.” In that response she wrote:
It was noted that ‘Melissa sometimes seems caught up in things other than work,
affecting her time here in the office.’ I was given no specific examples of when
my attention was focused elsewhere, and disagree with that statement. My
attention is always focused on work.
I conclude that Steepleton’s connection of Evans’ “distraction” to a substance abuse problem
was done simply to create a reason for going delving into Evans’ medical condition. A more
likely explanation for the “distraction” comment is that it referred to Steepleton’s perception that
Evans was engaging in union activity during working hours. Support for this inference appears
below in reference to Davison’s evaluation.
Steepleton also described another incident involving Evans. This involved a story Evans
had written about a religious study group. By the time the story was completed the group was
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ending its spring sessions, so then city editor Hulse and Evans decided to hold the story until
the group began again after the summer. According to Steepleton, he received a telephone call
from a woman who asked about the story that Evans had written; the woman wanted to know
when the News-Press was going to run the story. After Steepleton asked for some details the
woman explained that Evans had interviewed her several months earlier and the story still had
not run. Steepleton informed the woman that the story was set to run in near future. Steepleton
then spoke with Evans about the matter. Evans advised him that she and Hulse had decided to
hold the story because they agreed it would make more sense to run the story while the group
was beginning a new session in the fall. Evans called the person who had called Steepleton;
that person assured Evans that the information and quotes in the article were still current; Evans
told this to Steepleton. The News-Press ran the story on August 17.
A point of contention concerning Hobbs’ evaluation is the News-Press’ assertion Hobbs
shouted “fuck you” to Armstrong on July 6 as he was escorting Roberts out of the facility. In this
regard Armstrong testified that Hulse and Hobbs, rather than Hulse and Roshell, shouted the
curse words at him as he was escorting Roberts from the facility on July 6. He testified that he
saw Hobbs shout the words at him. However, he acknowledged that he did nothing concerning
the matter at the time or in the days or weeks following the incident. Rather, he waited until
August 9 to send the following email to McCaw and Apodaca:
I waited to send this complaint formally to you both until after I was no longer in
the acting publisher position, so that the human resources department can
investigate it without me in that top role.
I’d like to lodge a complaint against the insubordinate and unprofessional
behavior of Dawn Hobbs on the morning of Thursday, July 6 when I asked Jerry
Roberts to leave the News-Press building upon his submitting his resignation
letter.
As is widely known, Metro Editor Jane Hulse was the first that morning to swear
at me saying “fuck you Travis.” As I walked Mr. Roberts to the stairway, I also
distinctly heard Ms. Hobbs joining in and saying “fuck you, Travis” while she was
standing near Mr. Roberts’ former office.
Upon my return to the newsroom to address the staff, Ms. Hobbs was crying,
rudely interrupted me, and stated, “What did you do to make Jerry quit?” I
replied that Mr. Roberts resigned on his own.To this she replied in a rude
manner, “I think you know what it is.” Her confrontational manner and profanities
are troubling.
According to Steepleton this conduct caused him to give Hobbs the lowest possible rating in the
professionalism category in her evaluation. Steepleton was not present for the July 6 events; he
did not first ask Hobbs whether she made the remark before he attributed it to her in the
evaluation. He relied solely on the report from Armstrong that Hobbs had done so; he did not
talk to other witnesses to the event. Significantly, Apodaca was present with Armstrong while
Roberts was being escorted from the newsroom. Apodaca testified in this proceeding but gave
no support for Armstrong’s testimony. No one ever disciplined or warned Hobbs about the
matter after it occurred. Upon receiving the evaluation Hobbs denied making that remark and
testified convincingly at trial that Roshell and Hulse shouted “fuck you” to Armstrong as he was
escorting Roberts out of the building but she did not. Instead she was sobbing as the events
were unfolding. Hobbs’ testimony was corroborated by Huebner, Roshell, and Evans. I do not
credit Armstrong’s testimony at trial.
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In Hobbs’ evaluation Steepleton stated:
Her previous editors, including Jane Hulse and Don Murphy warned while they
were still here that [Hobbs] was too cozy with the cops. Reporters can not be too
cozy with anyone. That leads to bias.
It will be recalled that Hulse resigned as part of July 6 events. Steepleton testified about one
instance in 2006 where he assigned Hobbs to do a story involving the Santa Barbara Police
Department and, according to Steepleton, “she refused to do the story.” The story concerned a
canine unit training that was supposed to occur in a local park but the Parks Department turned
on all the sprinklers that day so the canine training never happened. Hobbs protested that she
did not think it was much of a story, but after Hobbs talked to Apodaca about the matter she
“ultimately agreed to do a story, mentioning that.” From that incident Steepleton testified he
concluded that Hobbs was too cozy with the cops. Also, Steepleton pointed to earlier
evaluations of Hobbs where this comment was made. And he testified that while still senior
writer he had “Numerous conversations [with Hulse], about her copy being late, about her
swearing. She had some – she had some coarse words she would say – complaints about her
still being too cozy with the Cops.” There is no explanation why the city editor would have
“numerous conversations” with him concerning the work performance of another writer. I again
conclude that Steepleton’s testimony is exaggerated if not totally fabricated.
Steepleton pointed to one incident involving Davison that had occurred in July and
ended up in her evaluation. Recall that in July the News-Press was coping with the staffing
issues created by the resignations that had occurred on July 6. Davison had stepped forward in
the days following the resignations to perform editing work so the newspaper could get out.
After she heard that others were receiving a bonus for their efforts, she requested a bonus also.
Later, Steepleton asked her fill in as assistant city editor in a full-time capacity on the 2 p.m. to
11:30 p.m. shift; Davison was working 9 a.m. to 6 p.m. at that time. She asked Steepleton how
long the new assignment would last and Steepleton said that he did not know. Davison said
that she would consider it but that she was waiting to get a response to her request for a bonus.
Her bonus request was later denied. Neither Steepleton nor Davison raised the matter again.
Based on this Steepleton gave her the lowest possible rating in two categories in her evaluation,
thereby indicating that Davison “Does not meet standards. Improvement required.” At the trial
in this case Steepleton added that he observed Davison engaging in “non-productive work
during working hours” and that he took that into account in giving Davison those low scores. He
conceded “I would imagine that she was conducting union activity during work hours, yeah.”
Steepleton continued:
I observed her and others walking table-to-table-to- table –to-table. I would walk
up. It would get silent. This was in the middle of what I know to be a union
organizing campaign. I didn’t overhear the conversations but I think anybody
would assume what was going on during working hours.
The other employees included Evans, Burns, and Hobbs. When Steepleton gave Davison her
2006 evaluation Davison protested; she asked if Steepleton had read the self-evaluation she
had prepared of her work performance. Steepleton conceded that he did not. Later Davison
raised the matter of her unread self evaluation with Apodaca. Apodaca said that it would have
been a good idea for Steepleton to have read it, especially because Steepleton had been in
charge only since August. Apodaca reviewed Davison’s evaluation and expressed surprise.
Davison asked if there had been an effort to look at the scores given to reporters at the city desk
like her, all visible union activists. Apodaca then pulled up a spreadsheet on her computer and
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explained “oh, my god, I see what you mean.” In her 2005 evaluation for the category
“Accuracy/Quality of Work” Davison received a 5. In 2006 Steepleton downgraded Davison to a
3 in that category; he provided no explanation, either in the evaluation or at trial to support this
rating. Davison discussed her evaluation with Guiliano who agreed that it was unfair. He
devised a plan to set goals that she could meet and thereby get a better evaluation in the future,
but Steepleton later told Guiliano, who then told Davison, that he could not do so.
The News-Press points to ratings given to other employees who it claims were union
supporters. Tom Schultz, Barney McManigal, and Rob Kuznia were all active and visible union
supporters and alleged discriminatees in this case. Each had their overall rating reduced by
Steepleton from 3.5 on 2005 to 3 in 2006 but each nonetheless received bonuses in both years.
Kim Favors went from 3.2 to 3.37; her union activity was limited to wearing the union T-shirt to
work on Fridays. Tom De Walt went from 3.4 to 5.0; he wore the union T-shirt to work a handful
of times. Marilyn McMahon went from 2.87 to 3.8; Apodaca testified that she saw a television
broadcast of a union rally and McMahon was in that broadcast; there is no evidence that
Steepleton was aware of this, however. John Zant’s ratings for the same time periods
increased from 4.1 to 4.6; Zant is an alleged discriminatee in this case. However, Zant was not
evaluated by Steepleton in 2006 because he worked in the Sports Department and Steepleton
allowed Barry Punzal to evaluate those employees. Mark Patton’s overall rating increased from
3.9 to 4.6, Dennis Moran’s went from 3.0 to 3.5, and Amy Weinstein went from 3.8 to 4.8, but
they too were evaluated by someone other than Steepleton. Allan McCabe’s overall ratings fell
from 3.8 to 3.5; he participated in the march on August 24 and wore a union T-shirt to work on
Fridays with other union supporters; he however was evaluated in 2006 by Charles Boucher.
Lara Milton went from 3.7 to 3.5; she too was evaluated by Boucher in 2006. Maria Zate’s
overall performance ratings increased form 3.1 in 2005 to 3.5 in 2006; Apodaca testified that
she believed Zate was a union supporter because she had seen Zate carry a bag with the
Union’s horse head logo on it. Tim Schultz (different from alleged discriminate Tom Schultz)
went from 3.5 to 4.0. Tom Jacobs went from 4.12 to 4.5; Apodaca testified that she saw Jacobs
at noon union rally. Whatever union activity these latter employees engaged in, it did not
approach the level of support for the Union shown by Davison, Hobbs, Evans, and Hughes.
Analysis
Davison, Hobbs, Evans, and Hughes each received significantly lower evaluations than
they had in previous years. As a result they did not receive the bonus payments that they had
received in those previous years. Davison, Hobbs, Evans, and Hughes were among the
strongest supporters of the Union and the News-Press knew this. The news desk was the
center of union support and three of these four employees worked there. The News-Press’
hostility toward the unionization effort is described both above and below. The fact that
Steepleton undertook to perform evaluations himself, despite his short tenure as head of the
news department, adds to the General Counsel’s case. The negative evaluations came in the
midst on the ongoing exercise of the Section 7 rights of the employees and in the midst on a
continuing unlawful campaign by the News-Press to stifle those rights. I conclude that the
General Counsel has fulfilled his initial burden under Wright Line.
The News-Press points to the fact that other supporters of the Union either received
higher evaluations in 2006 or, if they were lower, they nonetheless continued to receive
bonuses. But as described above, the prounion employees who received higher evaluations
were, for the most part, evaluated by someone other than Steepleton. Rather than tending to
exonerate the News-Press, this evidence actually strengthens the General Counsel’s case.
Focusing on the evaluations Steepleton made, other visible union supporters also received
lower evaluations although they retained an overall rating just barely high enough to receive a
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bonus. And those employees who received higher evaluations were not nearly as visibly active
in supporting the Union as Davison, Hobbs, Evans, and Hughes. The News-Press also argues
that point drop in the evaluations were relatively minor, but the retort to this argument is that the
drop was significant enough to deny these employees the bonuses that they had been given in
previous years. The News-Press argues that the lower evaluations were part of a greater effort
by Steepleton to tighten up evaluations, but I again do not credit Steepleton’s testimony.
I turn now to address the major reasons presented by the News-Press for the lower
evaluations it gave to each employee. Concerning Hughes, Steepleton noted in her evaluation
several times and at trial that Hughes was repeatedly late in submitting her Public Square
columns, but I have concluded Steepleton’s testimony was somewhat exaggerated and Hughes’
submission of the Public Square columns did not worsen in 2006 compared to prior years. In
those prior years Hughes received a rating of 4 out of a possible 5 in the category covering the
columns in her 2004 evaluation and her 2005 evaluation had no reference to any timeliness
problems concerning the submission of her Public Square columns. I conclude that the News-
Press has failed to show it would have given Hughes a lower evaluation even if she had not
supported the Union.
Concerning Evans, Steepleton described how he had talked to Evans about how the
News-Press was to continue to cover religion and how Evans explained that she thought that
Steepleton’s earlier email message meant that she now had the education beat instead of the
religion beat. Steepleton clarified that the education desk assignment was in addition to her
religion assignment. Thereafter Evans covered both areas. This appears to have been a
simple and quickly rectified misunderstanding and the News-Press presented no evidence to
show this was the type of work performance that finds its way into employee evaluations. Next,
Steepleton testified that Evans had a substance abuse problem that interfered with her
performance. But I have not credited Steepleton’s testimony either that this matter was
mentioned in the evaluation or that it affected Evans’ work performance. Steepleton’s fabricated
testimony on this sensitive matter only shows that the News-Press was searching after-the –fact
to justify the lower evaluation it gave to Evans. Finally, Steepleton described the story Evans
had written about a religious study group that she and Hulse decided to hold until the group
began again after the summer and how Evans advised Steepleton of this. I do not credit
Steepleton’s testimony to the extent that it describes any fault or shortcomings by Evans in this
matter or that the News-Press would routinely note such in an evaluation. I conclude that the
News-Press had failed to establish that it would have given Evans a lower evaluation even if
she had not supported the Union.
Turning to Hobbs, the News-Press contends that she merited a lower evaluation
because she shouted “Fuck you” to Armstrong. I have determined above, however, that Hobbs
did not do so. Nor do I consider this a matter of a good faith but mistaken belief on the part of
the News-Press. Armstrong did not report this matter until weeks after it occurred and the
News-Press did not investigate it to determine if Armstrong had been mistaken. It did not even
ask Apodaca, another supervisor who was present at the time, whether Hobbs had made the
remark. At best, the News-Press seized upon this mere accusation with a total unconcern as to
its accuracy. I have also discredited Steepleton’s other rather feeble attempts to justify the
lower evaluation he gave to Hobbs. I conclude that the News-Press has failed to establish that
it would have given Hobbs the lower evaluation even if Hobbs had not supported the Union.
Finally, turning to Davison, I have described above how Steepleton asked her fill in as
assistant city editor in a full-time capacity on a different shift. Davison said that she would
consider it but that she was waiting to get a response to her request for a bonus. Her bonus
request was later denied. Neither Steepleton nor Davison raised the matter again. Based on
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this Steepleton gave her the lowest possible rating in two categories in her evaluation, thereby
indicating that Davison “Does not meet standards. Improvement required.” But what the News-
Press failed to do is show how this incident would normally be cited in an evaluation much less
justify such low marks. Moreover, Steepleton conceded he gave Davison the lower evaluation
in part because he believed she was conducting union activity during working hours. Also, in
her 2005 evaluation for the category “Accuracy/Quality of Work” Davison received a 5. In 2006
Steepleton downgraded Davison to a 3 in that category; he provided no explanation, either in
the evaluation or at trial to support this rating. Finally, Davison discussed her evaluation with
Guiliano who agreed that it was unfair. He devised a plan to set goals that she could meet and
thereby get a better evaluation in the future, but Steepleton later told Guiliano, who then told
Davison, that he could not do so. Here again I conclude that the News-Press has failed to meet
its burden under Wright Line.
By giving lower evaluations to Anna Davision, Dawn Hobbs, Melissa Evans, and Karna
Hughes because they engaged in union activities, thereby depriving them of annual
performance bonuses, the News-Press violated Section 8(a)(3) and (1).
F. Removal of Buttons and Signs
The Complaint alleges that on about January 8 the News-Press instructed an employee
to remove a button reading “McCaw Obey the Law” and instructed employees to remove signs
that also read “McCaw Obey the Law” from their private vehicles parked in the News-Press’
parking lot. The News-Press admits these allegations in its answer to the Complaint.
The employees had been displaying those signs in their vehicles and wearing those
buttons while at work. Steepleton admitted that he told Hobbs to remove the “McCaw Obey the
Law” button she was wearing. He explained his conduct by stating that the News-Press had
decided this was not a personal fight against McCaw and therefore it was the News-Press’
position wearing the button was not appropriate conduct. Hobbs removed the button. Hobbs
also removed the sign she had on display in her vehicle.
Analysis
At the hearing the New-Press contended that it was permitted to require the removal of
the signs and buttons because “we had the absolute right to tell the employees to remove the
sign because it was defamatory.” But here even the vigorous assertion of a right fails to convert
that assertion into a serious legal argument. I have already concluded above that employees
have the right to display these buttons and signs. This is buttressed by the fact that I have
concluded that the News-Press has, in fact, violated the law. McCaw was not only the owner
and co-publisher of the News-Press, but as described above she had interjected herself
personally in the effort to defeat the Union. As the Union aptly stated in a written motion it filed
“As much of the record in this … case shows, this is a debate that McCaw and her
representatives are quite willing to participate in as aggressors, while claiming victim status
when the employees … rejoin in kind.” By instructing employees to remove buttons from their
clothing and signs from their vehicles reading “McCaw Obey the Law”, the News-Press violated
Section 8(a)(1).
G. Termination of Anna Davison
The Complaint alleges that on about January 25 the News-Press fired Anna Davison
because Davison supported the Union. Davison worked as a staff writer since October 2002.
While at the News-Press Davison won a commendation from the Newspaper Publishers
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Association for a three-part series she wrote on the Channel Islands in 2006. In 2005 Davison
received a fellowship from the California Endowment to attend a seminar in Los Angeles on
covering healthcare matters. In 2004 she received a fellowship from the Council for the
Advancement of Science Writing to travel to the University of Arkansas to attend a science
seminar. The News-Press contends Davison was fired for bias reporting in an article written by
her and published by the News-Press on January 15. This matter concerns whether the article
showed bias on the subject of tree removal from some streets in downtown Santa Barbara. In
Davison’s 2005 evaluation, the last one before her involvement with the Union, the News-Press
commented:
Anna’s writing sparkles. She writes with flair, humor, - when it’s called for – and
clarity. She is one of the best writers in the newsroom, a pro at using just the
right word for something. She is the one we turn to when we want that certain
“touch” to the story. When the story is in her hands, we don’t need to worry
about it; we’re confident it will come in good shape with little editing required.
Accuracy has never been a problem.
…
Anna always goes the extra mile to make a story better than just acceptable.
She always does a thorough job of researching something before writing about it
so that her stories carry [an] air of authority. We’d like to see her come up with
more story ideas and dive into them.
…
Anna is always a professional in her dealings with sources, people in the
newsroom, and in writing her stories. Her ethics are solid, and she strives to be
fair to all sides in her writing. She often volunteers to help editors and willingly
takes on daily assignments from editors.
Davison supported the Union by signing an authorization card and attending the public
rallies sponsored by the Union. She wore the Union t-shirt to work on Fridays along with other
union supporters. She also wore union buttons while at work. As indicated above, her
signature was the fourth of about 25 on the August 24 letter to McCaw. She appeared in
several of the photographs that ran in newspapers covering the union rallies described above.
On January 2, the employees sent a letter to McCaw and von Wiesenberger complaining about
the lack of sufficient staff; that letter was signed by about 18 employees, including Davison, as
part of “The Organized Newsroom Staff.”
On January 9 and 12 the News-Press ran opinion pieces criticizing the city of Santa
Barbara for cutting down trees on Lower State Street in downtown Santa Barbara as part of a
redevelopment and beautification program that also involved tearing out and replacing the
slippery sidewalks in that area. The editorial commented, however, that the public uproar that
had occurred concerning the removal of trees on Upper State Street did not happen this time.
The News-Press also published articles concerning the tree removal phase of the project.
On September 9 Davison was assigned to cover the Santa Barbara beat. On January
12 Davison began preparations for a Santa Barbara story concerning the replacement of
slippery tiles on Lower State Street. She walked to that area and noticed that the trees already
had been cut down and removed. She spoke to shop owners and others about the project; no
one seemed particularly concerned about it. She returned to her office where she called Santa
Barbara Mayor Marty Blum, who provided Davison with some information of the project. She
interviewed another person who was a leader in the beautification project in that area. She
reviewed earlier articles in the News-Press to search for leads to contact for someone who
might have concerns about the tree removal aspect of the project and then called an
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organization, Santa Barbara Beautiful, which had in the past opposed tree removal. She left a
message asking to speak to someone by the end of day, but her call was not returned. The
story was originally intended to run the next day, Saturday, on page 3 or 4 of the paper, but it
was decided to hold the story until Monday and feature it on the front page. Davison revised the
story to make it more appropriate for a front page piece. The story was then edited and
approved by Robert Guiliano, the News-Press’ assistant city editor.
On January 15 the News-Press published the article prepared by Davison. The article
was entitled “Walk This Way” and was accompanied by a photograph of a worker in a hard hat
working on the sidewalk. That photograph contained the statement “The tiles on Lower State
Street are being ripped up and replaced with brick pavers to make the busy stretch safer for
pedestrians.” A smaller photograph showed drilling work being done near a tree stump. The
article reported on how the tiles on Lower State Street in downtown Santa Barbara were being
torn up and replaced with brick pavers to make the street more pedestrian-friendly. According
to sources in the article, the old tiles were slippery when wet. The article mentioned that as part
of the effort, 51 street trees were being cut down or moved “to the chagrin of some locals.”
The same day the article was published Guiliano attended a meeting with McCaw and
von Wiesenberger; Steepleton was on vacation at the time and Guiliano was selected to fill in
for him while he was away. At this point the facts concerning Davison’s discharge merge with
the facts leading to Guiliano’s discharge discussed in the next section of this decision. At the
meeting McCaw said that she felt Davison’s article was biased because it was a positive story
about the downtown sidewalk replacement at the expense of 51 trees. She pointed out that this
was directly against what the News-Press had been saying in its editorials against cutting down
the trees. She expressed concern that there were not more details from the perspective of
people who opposed replacing the sidewalks and removing the trees. McCaw also stated that
she did not like the fact that Santa Barbara Mayor Blum was quoted so often in the article; the
News-Press had been very critical of the mayor in its editorial pages. McCaw told Guiliano to
reprimand Davison. Guiliano then told Davison of his discussion with McCaw; Davison said it
seemed ridiculous to be criticized for quoting the mayor of the city and that she had contacted a
source on the tree removal issue but that the person did not return her call in time for the story
deadline. Guiliano suggested that she continue to contact that source and prepare another
story from the perspective of those who opposed replacing the sidewalks and removing the
trees. Guiliano reported all of this to Steepleton in an email message. Guiliano did not
reprimand Davison; instead he refused to do so.
Davison then continued to pursue leads concerning the tree-removal issue. On January
22 she received an email message from Desmond O’Neill, a self-proclaimed tree lover, who
stated:
If you want to pass this on, by all means, but it really comes from me as a
member of the City Trees Advisory Committee, not as a member of [Santa
Barbara Beautiful]:
The plan for renovating the 400-500 blocks of State Street has been in the works
for more than two(2) years, and has gone through public hearings with the
Downtown Organization, Street Tree Advisory, Landmarks, Architectural Review,
Old Town Merchants, Parks and Recreation, City Council … the list is long and
the hearings and discussions have been prolonged and public. The final
decision to go ahead was made by the City Council months ago, and the City has
been purchasing the materials and preparing the project ever since.
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It should have come as no surprise to anyone even vaguely interested in street
trees, that portion of State Street, or City business … Why the News-Press would
belatedly raise a Hoe and Cry over this, and try to generate a controversy where
really none exists, is beyond my understanding, but there has been a lot of stuff
going on at the News-Press recently which has been beyond my understanding.
Presumably the newspaper editorial management thinks that stories and
controversies sell more newspapers . . . ? A charming but outdated notion I’m
afraid.
As anyone will tell you, I’m a tree lover and a tree-hugger, but the original plans,
particularly the sidewalk materials, were faulty, as became very evident over the
past ten or twelve years. When Public Works and the Safety people (Risk
Management) decided (recommended) that extensive work would need to be
done, the subject of saving the trees already in place was discussed, and as a
matter of fact trees of a size or species that will stand up to removal and
replanting have been saved, some will go back in on State Street, some in other
locations. Some trees couldn’t be saved and were cut down, which I personally
regret, but they will be replaced, and as a matter of fact, the City will have a small
net gain in the number of trees (about seven, if memory serves) and we will have
some trees more suitable to the urban and quite rough arboreal environment
down there than some of the now-gone trees proved to be – We have poor to
middling soil conditions, inadequate water and drainage, steady vandalism –
What is going in now, as part of the renovation, will be larger and hardier and just
as leafy and beautiful. Between replacing the paving and curbing, re-locating
some trees wells and plantings, and re-configuring utilities and basement spaces,
as many trees were saved as possible, and those lost will be, as noted replaced.
I am the last person to advocate for tree removal or destruction, and have in past
argued strenuously for preserving trees throughout the City, as my colleagues on
the Tree Advisory Committee and City Council will attest. Persistent and
articulate as I might be, however, in this instance I am satisfied that everything
possible was done to save and preserve and replace our State Street trees, and I
venture to suggest that the public will in the end be very pleased with the results.
If the News-Press cannot use this in its article, I would be happy to submit this as
a letter or Op-ed column, but I do emphasize that I speak (write) as a public
citizen and State Street Advisory Committee member (now past member) and
not as a representative of Santa Barbara Beautiful, since SBB has taken no
position on this.
That same day Davison forwarded this message to Guiliano who provided it to McCaw and von
Wiesenberger accompanied by a message that read, in part, “The information that [O’Neill]
includes in his e-mail, I think, may shed light on why the tree issue on lower State has not
outraged the public as much as the tree issue on upper State did.”
On January 25 Steepleton gave Davison termination letter that read:
Your performance evaluation this year, which was 2.3, was one of the lowest
scores given to any reporter. We had hoped that there would be improvement,
but instead you failed even to provide acknowledgement, a promise to improve,
and in fact took the review home for a month and did not return it until yesterday
when I requested it. In some ways this is emblematic of your performance.
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Your recent article on January 15, 2007, was totally biased in that it reported on
an issue that always is surrounded by controversy – cutting down trees on a
public street in Santa Barbara – without any reporting on the other side.
When confronted with this, you appeared to suggest there was no “other side” or
that you somehow could not find someone who disagreed with the project. That is
ridiculous and not credible. This is Santa Barbara. There are many opposed to
this; you simply failed to show the initiative to find them – or worse, decided to
ignore them. You could have stopped people on the street for comment. Had you
opened our newspaper (do you read it?), you would have noticed the Editorial
pages opposed this project, and the flood of letters to the editor opposing it when
it became known made it clear that were others with different opinions.
Our job at the Santa Barbara News-Press is to present all sides of an issue.
Because the Editorial pages opposed this project does NOT mean that you were
supposed to write an article with that slant: you were supposed to write an article
with NO slant. We will not tolerate bias. Without two sides to a story, it is biased
– and this calls into question the basic journalistic ethics that we need to show in
every story.
Based upon these facts your employment with the News-Press is hereby
terminated.
While the termination letter refers to the “flood of letters to the editor opposing” the project, it
appears only one brief letter was sent to the News-Press on this matter before the article ran.
And Steepleton never warned Davison about bias in her reporting. The termination letter was
the first time anyone at the News-Press had accused Davison of bias in her reporting; she had
received no warnings, reprimands or negative comments in her evaluations on the subject.
Guiliano had approved the Davison article for publication; he testified that he did not feel
the article was biased despite the fact that in his January 22 email to McCaw containing
O’Neill’s comments described above Guiliano stated Davison’s “story was weak in that area, as
we agreed, in telling both sides.” At trial Guiliano explained that this remark was not accurate
but he was trying to apply the principles he had learned from reading “How to Win Friends and
Influence People” by trying to agree with McCaw in order to influence her. He gave the same
explanation to Davison, who saw the email before she was fired, became angry by the comment
and questioned Guiliano about it
Steepleton testified that prior to Davison’s termination in about August or September
McCaw spoke to him about what she perceived to be bias in Davison’s reporting. The stories
by Davison that McCaw thought were biased concerned the Channel Island fox and bald
eagles. Steepleton did not believe that McCaw told him why she felt those articles were biased.
Yet Steepleton conceded he made no mention of any alleged bias in the evaluation he prepared
for Davison a month earlier. Remember, Steepleton testified that he had been reprimanded by
McCaw for allowing the alleged bias in Burns’ article and had allegedly directed him to be
vigilant against bias. I again do not credit Steepleton’s testimony.
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On April 12, News-Press TV10 aired a report on the Lower State Street Construction.
The report described the beautification project and that store owners and pedestrians all say
they are looking forward to the project’s completion, some were wondering why the project has
taken so long. It then showed someone from a business in the area commenting on how the
completion dated had been extended several times. The report ended with the announcer
stating:
Workers have been replacing the slippery sidewalks with brick and have repaved
major sections of the street. About fifty trees had to be uprooted which the city
said will be replaced. Local, unbiased, accurate. 24 hours a day. This is News-
Press TV.
Although Steepleton did not supervisor the reporters for the News-Press TV, he did offer an
explanation of how the April 12 piece was not biased yet Davison’s article was. He explained
how the redevelopment and beautification project on Lower State Street lasted about five
months and was done in phases. First there was the clearing out of the old trees and then that
issue faded. Then the new trees were installed and then “it was replacement of the tiles with
this new type of brick.” He testified that that the TV report focused on the end phase of the
project and therefore it was not necessary to include reporting on both sides of the tree removal
issue. But given that Davison’s article focused on the tile replacement phase of the project and
not the tree removal phase, Steepleton failed to explain why Davison showed bias in
concentrating on that tile phase without revisiting the tree removal phase. And there is no
evidence in the record of any controversy over the removal of the apparently unsafe tiles and
their replacement by safer bricks; in other words, in the words attributed to Davison by
Steepleton, “there was no ‘other side.’”
On April 8 the News-Press published a story about two workers being fired because they
made too much money. Steepleton admitted that the story was biased because it did not have
the view of the employer who fired the workers and the News-Press published a correction on
April 11 conceding as much. The reporter in that case, who was also a union supporter, was
not disciplined. Obviously, the News-Press did not issue any “correction” on the Davison story.
On May 1, 2007, McCaw sent Steepleton a message indicating that she felt that a front page
article written by Orsua concerning illegal immigrants was biased. She asked who have
approved the article and asked to discuss it with Steepleton. There is no evidence that Orsua
was discipline or fired for the alleged biased reporting.
Analysis
The General Counsel’s initial burden under Wright Line is satisfied again by the same
familiar pattern. Davison was an active Union supporter, the News-Press was aware of this,
and its animus towards the Union is described above and below. The discharge occurred in the
midst of the continuing struggle between the employees and the News-Press’ unlawful
responses. Also, Davison’s termination relies in part on her evaluation which I have already
found to be unlawful. That same evaluation, as explained by Steepleton, refers to her union
activity. Moreover, there is no mention in that evaluation, prepared by Steepleton, of any
concerns over biased reporting.
Turning now to the News-Press’ burden, I begin by noting that McCaw had long
perceived Davison as having made biased environmental articles, as shown by McCaw’s

10 The record does not clearly define the relationship between the News-Press and News-Press TV.
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reactions to the articles Davison had written concerning the otters, pigs, and eagles as
described above. This demonstrates that McCaw’s concerns were unrelated to Davison’s union
activity. On the other hand, McCaw’s concerns were never shared with Davison in any form by
her superiors and McCaw never demanded at that time that Davison be fired because of the
perceived bias. To the contrary, Davison’s superiors shielded her from these criticisms and
Davison continue to work for the News-Press. The News-Press asserts it fired Davison
because the short article she wrote was biased in that it did not give voice to those who oppose
the loss of the trees. But as described above, the tree-cutting phase of the project had ended
and the focus of the article was on the tile replacement phase. Even the tree cutting phase of
the project had generated minimal controversy because of the overriding need for safety and
the fact the city had satisfied the tree-supporting groups that it properly handled the matter.
McCaw complained that the article did not take into account the editorial position of the News-
Press but remember that the News-Press’ own conflict of interest policy, described above,
seems to require employees not to swayed by that position in reporting. Of course, it is not the
role of the Board to decide whether the article was or was not biased or to substitute its
judgment for that of the News-Press. But the point is that the News-Press has not established
that is routinely labels as “biased” articles written under these circumstances. Of course, it is
possible that McCaw had not been aware of these circumstances when she first criticized
Davison’s article. But the letter from O’Neill should have given pause to the notion that there
remained a controversy over the tree removal aspect of the project that still needed coverage.
Moreover, there is no explanation as to why what began as a reprimand ended up as a
termination. Finally, there is no evidence that the News-Press routinely fires employees for bias
appearing in articles. To the contrary, the record shows other instances of perceived bias by
the News-Press that did not result in discipline of any kind, much less termination. For these
reasons I conclude that the News-Press has failed to show that it would have fired Davison
even if she had not supported the Union.11 I find that the News-Press violated Section 8(a)(3)
and (1) by discharging Anna Davison.
H. Guiliano’s Termination
The Complaint alleges that the New-Press fired Robert Guiliano, the News-Press’
assistant city editor, on January 26 because he failed to issue a pretextual reprimand to Davison
in furtherance of that employee’s unlawful discharge. The assistant city editor is a management
position. In its brief the News-Press contends that it fired Guiliano for three main reasons.
Those were Guiliano’s refusal to follow a direct order to reprimand Davison, Guiliano’s
inappropriate public exclamation concerning Steepleton’s testimony given at Judge Schmidt’s
hearing, and Guiliano’s inappropriate and baseless accusation that reporter Leana Orsua had
committed plagiarism.
Steepleton hired Guiliano in October. At the trial in this case Guiliano testified that he
refused to issue the reprimand to Davison because he felt Davison was being targeted for her
union activities. He pointed how he was aware of Davison’s low evaluation and how he felt she
was being “tanked” unfairly, that he was not allowed by Steepleton to help Davison through

11 The Union, in its brief, argues that the News-Press gave shifting reasons for discharging Davison
and that this too supports the conclusion that her discharge was unlawful. In support of this contention
the Union cites a comment made on the record by the News-Press’ attorney that the sole reason that the
News-Press fired Davison was because she refused to accept the night editing position. Of course, a
party is generally bound by the statements of its attorneys. But this statement, isolated as it was, and
made in the course of 17 days of trial with multiple issues strikes me more as an erroneous comment than
a serious contention. Accordingly, I give it little weight.
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positive feedback, and that he did not feel the article that Davison had written and that he had
approved was biased.
On January 16, the day Steepleton returned from vacation and the day after Guiliano
had the meeting with McCaw and von Wiesenberger where McCaw gave the instruction to
reprimand Davison, Steepleton testified that he received a call from McCaw. He testified that
McCaw told him that she had reprimanded Guiliano the day before. Steepleton then met with
McCaw and von Wiesenberger. McCaw related how she had instructed Guiliano to reprimand
Davison but that Guiliano had refused to do so.
As described above, Davison was fired on January 25. On January 26 Guiliano was
summoned by Steepleton to Apodcaca’s office where she also was present. Steepleton told
him he was fired “performance related.” Guiliano protested that he ran the newspaper for three
weeks while Steepleton was away and that Steepleton had said that he did a good job and now
he was being terminated. Steepleton did not respond. Guiliano then turned to Apodaca, but
she said that she was sorry but that she just filed the paperwork around there.
In response to the questioning by counsel for the General Counsel, Steepleton identified
three occurrences that lead him to fire Guilano. The first was Guiliano’s handling of the story
written by Davison, described above, that triggered her termination. In describing what Guiliano
did wrong in this regard Steepleton testified:
Well, he was I think the assigning editor on that story. He should have given her
direction up front or could have anyway. I don’t know if he did or not, but he
could have given her direction on what to go after.
Steepleton continued that later when Guiliano was directed to reprimand Davison for the story
he failed to do so but instead suggested writing another biased story to make amends for the
first story.
Steepleton testified about another incident that he considered in deciding to fire Guiliano.
This incident occurred after Steepleton testified at the hearing before Judge Schmidt; Guiliano
attended the hearing that day. According to Steepleton, Guiliano came into his office and in
front of all the reporters said something like “Hey, our boss did a great job in court today.”
Steepleton testified that Guiliano’s comment was “an inappropriate exclamation for a manager
to say in the middle of the newsroom.”
Finally, Steepleton cited an instance where Guiliano accused reporter Leana Orsua of
plagiarism “in front of other reporters.” The portion of the article prepared by Orsua at issue is:
State emergency and health officials are urging preparedness for the expected cold
snap.
“The safety of all Californians is our utmost concern,” said Office of Emergency Services
Director Henry Renteria.”
The problem, according to Guilano, was that Orsua appeared to be quoting directly from
Renteria when in fact she had taken the information from a press release issued by the Office of
Emergency Services that quoted Renteria as having made the comment. In other words,
according to Guiliano, Orsua should have attributed the quote to the press release. Steepleton
testified that he disagreed with Guiliano’s conclusion of plagiarism and told this to Guiliano.
Steepleton was asked “Were you suspicious whether – what the reasons –why he was accusing
her of plagiarism?” Steepleton answered: “It was very strange that this guy was continuing to
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call her a plagiarist. I did not believe she was a plagiarist.” It will be recalled that Steepleton
testified that Guiliano made his accusations of plagiarism in front of other reporters. He testified
that Guiliano did a disservice to Orsua by addressing the matter in public. However, there was
no specific evidence presented that Guiliano addressed his concerns with Orsua in front of other
reporters. There is also no evidence that Steepleton ever advised Guiliano that he had a
different opinion as to what constituted plagiarism.
Later, when questioned by counsel for the New-Press Steepleton added other reasons
that lead to Guiliano’s termination. On November 19 Guiliano emailed an assignment to Orsua
concerning the possibility that the draft might be reinstated. The email began:
Good morning Leana, this is your mission should you decide to accept it. If you
are captured, we will disavow any knowledge of your assignment. Read this
memo and memorize it. It will self-destruct in 20 seconds… (italics in original).
Steepleton testified that he found this language “Very strange, not appropriate, not the way that
I would expect a manager to assign a story.”
The New-Press hired Orsua after the resignations on July 6 and Guiliano had issues
with her work; he brought this to Steepleton’s attention in a number of email messages. At the
trial the New-Press pointed to one such message dated January 12 where Guiliano stated:
Just for the record, I have never made any attempt to ask Leana out socially and
never tried to have anything other than a professional working relationship with
her. I have been warned by others that she may attempt to file a complaint about
me to HR suggesting that I’m making her feel “uncomfortable,” insinuating sexual
harassment, while the real situation focuses 100 percent on my assuring that she
write accurate, unplagiarized stories for publication in our newspaper, even if she
finds this frustrating because of her apparent inability or unwillingness to
comprehend what plagiarism is.
Guiliano explained that he feared that because he had been critical of Orsua’s work she might
falsely accuse him of sexual harassment and so was merely “covering my bases.”
Analysis
Supervisors do not enjoy the protections that the Act extends to employees. Parker-
Robb Chevrolet, Inc., 262 NLRB 402, 403 (1982). However, an employer may not discharge a
supervisor for failing to commit an unfair labor practice. Id. I first assess whether the reprimand
that McCaw instructed Guiliano to give to Davison would have been an unfair labor practice.
Viewed in isolation the instruction McCaw gave to reprimand Davison might be dismissed as a
passing outburst unrelated to Davison’s union activities. But viewed in context and taking into
account the factors that lead me to conclude that Davison’s discharge was unlawful I conclude
that the instruction, had it been carried out, would too have been unlawful. I have noted above
that Guiliano refused to issue the reprimand because he felt it was retaliation for Davison’s
support of the Union. The timing of his discharge, coming the day after the News-Press
unlawfully discharged Davison, in context serves to connect the two.
I now examine whether the News-Press has shown that it would have fired Guiliano
anyway even if had not failed to give Davison the reprimand. But Steepleton’s reliance on the
dispute of whether or not Orsua committed plagiarism seems wildly exaggerated so as to serve
as basis for discharge in what otherwise would likely have been only a matter of discussion or
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debate in the newsroom. In this regard I do note that in other stories run by the News-Press
described above the News-Press has been careful to make the very distinction that Guiliano
was attempting to make with Orsua. Steepleton’s vague testimony concerning Guiliano’s failure
to correct the alleged bias in Davison’s article stands in stark contrast to his own role in
approving Burns’ allegedly biased article and links Davison’s unlawful discharge with Guiliano’s.
Finally, Guiliano’s “Hey, our boss did a great job in court today” falls of its own weight. It may be
that Guiliano may not have fit in, over the long run, with the expectations of the News-Press.
But the fact remains that his termination was linked to Davison’s unlawful discharge and the
News-Press has failed to show it would have happened without that linkage. In its brief the
News-Press cites Pioneer Hotel, Inc., v. NLRB, 182 F.3d 939 (1999) in an effort to avoid liability.
While I must indicate that I am bound to apply Board law, I find it significant that the Court in that
case noted the absence of any evidence that the discharged supervisor refused to obey the
instruction to discharge the employee because the supervisor thought it would be unfair labor
practice. In this case, as described above, Guiliano credibly provided precisely that evidence.
I find that by terminating Robert Guiliano because he refused to commit an unfair labor
practice the News-Press violated Section 8(a)(1).
I. Termination of Six Employees and Related Interrogations.
The Complaint alleges that the New-Press fired Dawn Hobbs, Rob Kuznia, and Barney
McManigal on February 5 and Tom Schultz, John Zant, and Melissa Evans on February 6
because those employees supported the Union. The Complaint also alleges that on those
same days Steepleton unlawfully interrogated employees concerning their union activity.
Prompted by Davison’s termination the week before, on February 2 before work Burns,
Dawn Hobbs, Rob Kuznia, Barney McManigal, John Zant, Melissa Evans, and Tom Schultz
assembled on the Anapamu Street footbridge that crosses over Highway 101 in Santa Barbara.
Keegan and another Union representative were also present. For about an hour that morning
they displayed two large banners reading “Cancel Your Newspaper Today” to rush hour
motorists driving beneath the overpass. They also displayed smaller handmade signs reading
“Bring back Melinda“ Burns, “Bring back Ann[a]” Davison, and “Stop Illegal Firings.” These
signs were about 14 inches wide and 22 inches high. A sign reading “Protect Free Speech” and
another sign reading “Stop Illegal Firings” were also displayed; these were about 20 inches wide
and 30 inches high.
On Friday, February 2 the Santa Barbara Independent ran a story about the event on the
overpass entitled “Taking It to the Overpass: News-Press staff protest” and with a subtitle
“Organized N-P Newsroom Urges Drivers to Cancel Their Newspaper Subscriptions.” The
article was accompanied by a photograph of the overpass with the “Cancel Your Newspaper
Today” banner and the smaller sign reading “Protect Free Speech.” The article mentioned how
the employees on the overpass were calling for illegal firings at the New-Press to stop and how
those related to the fired employees’ “involvement in the drive to unionize.” The article made
clear that the events on the overpass were related to the organizing campaign.
On February 5 and 6 the six employees were summoned individually to a conference
room at the New-Press. Present there were Steepleton and New-Press attorney Dugan Kelley.
Kelley asked each employee whether the employee was present on the overpass where the
“Cancel Your Newspaper Today” banner was displayed. The employees admitted that they
were. The employees were then terminated. The six employees received identical termination
letters that read:
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Effective immediately, you are discharged from your employment at Santa
Barbara News-Press for engaging in disloyal conduct. Specifically, you
participated in hanging a large banner from a bridge over highway 101 in full view
of oncoming motorists stating “Cancel your newspaper today.”It is serious
disloyal conduct for you to do while at the same time collecting a paycheck from
this company.
Apodaca accompanied Hobbs to her car after she received her termination letter. As
they were walking Hobbs asked Apodaca if Apodaca thought it was right that Hobbs had been
fired a union related protected activity. Apodaca relied by asking Hobbs if she thought what she
was doing right by telling people to cancel their subscriptions and people could lose their jobs
because of that.
The New-Press argued that it was unaware that the protest was related to union activity.
In this regard Steepleton testified he was aware of the activities on the overpass and knew each
of the terminated employees were leaders or supporters of the Union effort, but when asked if
he knew that the activities on the overpass were part of the Union’s campaign he answered that
he “didn’t see anything that indicated union activity as far as the activity that day.” He testified
that although he saw a photograph on the “Cancel Your Newspaper Today” banner that he
didn’t “know that was part of a Union campaign.” Yet given the extensive coverage in the New-
Press itself and in articles reviewed by Steepleton himself concerning the Union effort to
persuade readers to cancel their subscriptions, Steepleton’s testimony is completely lacking in
credibility. This seems to me to be one of those revealing moments during the testimony of a
witness that is so obviously contrived that it undermines the witness’ credibility on other all
matters.
Analysis
I have already concluded above that the efforts by the employees to apply economic
pressure on the News-Press by having subscribers cancel their subscriptions is conduct
protected by the Act. Citing cases such as NLRB v. Washington Aluminum Co, 370 U.S. 917
(1962) the News-Press argues that the activity the employees engaged in on overpass was not
protected because the employees did not obtain a permit to hang the banner on the overpass. I
reject this argument because the News-Press did not fire these employees for any illegal
conduct. Molon Motor & Coil Co., 302 NLRB 138, enfd. 965 F.2d 523 7th Cir. 1992). I do,
however, deal with the matter in more detail below in the section of this decision dealing with
issues of reinstatement and backpay. In its brief the News-Press cites the dissenting opinion in
Endicott Interconnect Technologies, 345 NLRB No. 28 (2005). I am, of course, bound to follow
Board; I am not free to apply dissenting opinions. However, I do note that in this case, unlike in
Endicott, it should have been obvious to anyone who was interested that the conduct of the
employees on the Anapamu overpass was connected to the extensively publicized labor dispute
involving the News-Press. Most importantly, I conclude that the News-Press made the obvious
connection between the activity of the union activists on the overpass with their by then familiar
signs and banners to its ongoing labor dispute with the Union.
By discharging Dawn Hobbs, Rob Kuznia, Barney McManigal, Tom Schultz, John Zant,
and Melissa Evans because they engaged in union activity the News-Press violated Section
8(a)(3) and (1). The interrogations, leading as they did to discharge, were clearly coercive. By
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coercively interrogating employees about their union activity, the News-Press violated Section
8(a)(1).12
J. Surveillance of Rallies
The Complaint alleges that on February 7 and 21 the News-Press, through Jim Diaz,
engaged in surveillance of the union activities of its employees. Jim Diaz is an admitted agent
of the News-Press.
On about February 7 and 21, 2007, the discharged employees and their supporters held
rallies in De La Guerra Plaza within about eight feet to the entrance of the News-Press’ facility.
On both days Diaz held a camera to his face and appeared to be filming the participants at the
rallies. There were no obvious members of the media present for the first rally, but they were
present for the second. Diaz was not standing with or near the media observers of that rally;
rather he was filming from off to side.
In about the week after July 6, 2006, a black wreath was delivered to the News-Press’
facility. The News-Press has newspaper machines in front of its facility and they had been
vandalized at unspecified times in the past. The News-Press also had security personnel inside
its facility on days that the Union was holding rallies outside. But the News-Press did not
otherwise provide details or connect that testimony as to why it found it necessary to film the
Union-sponsored rallies occurring outside its facility.
Analysis
In assessing the legality of an employer's video surveillance activity, the test is whether
there was proper justification and whether it reasonably tends to coerce employees. Timken
Co., 331 NLRB 745, 754 (2000). Here, there is evidence of delivery of a black wreath months
earlier and vandalism of an unspecified nature and at unspecified times. Importantly, there is no
evidence linking those events to the need for the video surveillance of the protesters. I
conclude that the News-Press has failed to show any proper justification for this surveillance. In
the context of the series of violations found above, I find that the News-Press violated Section
8(a)(1) by engaging in surveillance of the union activities of employees.
K. Surveillance at Library Meeting
The Complaint alleges that on about February 13 David Millstein, an attorney for the
News-Press, interfered with and engaged in surveillance of employees engaged in union
activity at the Santa Barbara public library. On January 30 Burns completed an application to
rent a meeting room at the library for the purpose of meeting with advertisers in the News-Press
to attempt to get their support for the union campaign.13 On February 8 the union supporters at

12 The Complaint alleges that Steepleton conducted the interrogations while the evidence shows that
the employees were questioned by Kelley in the presence of Steepleton and at the direction of the News-
Press. However, this variation does not change the conclusion that the News-Press is responsible for the
interrogations.
13 The News-Press attempts to make something of the fact that on the application Burns indicated the
Union was a non-profit organization; this allowed Burns to pay $35 instead of the $125 that profit
organizations would have to pay. The application form did not have a definition of non-profit
organizations. I accept Burns’ testimony that she did not believe the Union was a profit-making
organization.
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the New-Press distributed a letter authored by Burns to the New-Press advertisers inviting them
to come to a meeting at the library on February 13. The letter included the following comments:
We want to discuss with you how you can help us improve the editorial and workplace
atmosphere in the newsroom. We are seeking a fair employment contract with Wendy
McCaw, the New-Press owner and publisher, a contract that will ensure that we can
gather and report the news without interference.
More than thirty journalists, including a number of writers whom your customers used to
follow, have been forced out or fired from the New-Press since early July, when McCaw
began attacking her staff and mixing opinion and news.
Thousands of New-Press readers – your customers- have cancelled their subscriptions
in our support. Every week, there are more cancellations. On your behalf we have
asked the ABC to conduct an audit because we suspect you have not received the true
subscription numbers.
In dictatorial fashion, McCaw has fired reporters, filed lawsuits against her critics and
harassed former employees with “cease-and-desist” letters, seeking to silence those
who speak out for freedom of the press. The New-Press mess has received national
and international coverage in the media as a bad example in the industry. Most recently,
a Jan. 15 article in the New York Times business section was entitled “Newsroom Fight
Spills Onto the Streets of a Once-Peaceful Town.”
We who remain in the newsroom are asking McCaw to negotiate a contract that above
all will safeguard the basic rules of journalism ethics. We have voted 33-6 to be
represented in this effort by [the Union.] In March, the National Labor Relations Board
will prosecute the New-Press for illegally firing a senior writer and threatening newsroom
employees.
Your ads are appearing in a paper that is rapidly losing credibility among its readers.
But with your help, we believe we can turn the New-Press around. On Feb. 13, we will
talk about how you can help us get the New-Press back on track. Your customers want
you to intervene to help restore a free press to Santa Barbara. We need a newspaper
that is responsive to the community and keeps the publishers’ views out of the news – a
paper that is good for democracy and good for business.
On February 13 about nine advertisers appeared at the meeting. Keegan and about five
former employees of the News-Press and union supporters were also present. The meeting
took place in a room available for use by the public for a small rental fee located downstairs in
the library. Shortly after the meeting began Millstein opened the door to the room and entered
with Norman Colavincenzo, who identified himself as an accountant for the News-Press.
Keegan said that this was a meeting between the Union and the advertisers and he and Hobbs
asked Millstein and Colavincenzo to leave. Millstein replied that they had a right to be there
because it was a public meeting and he refused to leave. Millstein said that he had statistics on
the circulation of the News-Press that he wanted to give out to the advertisers. A heated
argument ensued during which two of the advertisers left. Millstein and Colavincenzo remained
to the meeting for about 25 minutes.
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Analysis
I have already concluded that the attempt to put financial pressure on the News-Press to
recognize the Union and to begin immediate bargaining was protected under the Act. The
disruptive nature of this conduct adds to its coercive nature. I have considered and rejected the
News-Press’ defenses for its conduct set forth in its brief. I find that the News-Press again
violated Section 8(a)(1) by engaging in surveillance of the union activities of employees.
VI. Issues Concerning Reinstatement and Backpay
The News-Press contends that none of the unlawfully discharged employees are entitled
to reinstatement or full back pay based on after acquired evidence of misconduct. In John
Cuneo, Inc., 298 NLRB 856 (1990), the Board held that if an employer shows that an employee
engaged in misconduct for which the employer would have discharged any employee,
reinstatement is not ordered and back pay is terminated on the date the employer first acquired
knowledge of the misconduct. The Board recently reaffirmed this holding. First Transit, Inc.,
350 NLRB No. 68 (2007), slip op. at 5-6. That case involved an employee who had been
unlawfully discharged but who also had been convicted of second degree robbery before she
began her employment with the employer. That employee, however, indicated on her
employment application that she never had been convicted of a felony. The employer in that
case established that it would have never hired the employee had it known that she had lied on
her employment application. The Board limited back pay due that employee at the point the
employer discovered that she had falsified her employment application.
The News-Press also points to post-discharge conduct by the discriminatees that it
contends should deprive them of reinstatement and full back pay. But in C-Town, 281 NLRB
458 (1986) the Board stated:
{N]ot every impropriety deprives the offending employee of the protection of the
Act. The Board looks at the nature of the misconduct and denies reinstatement
in those flagrant cases “in which the misconduct is violent or of such a character
as to render the employees unfit for further service.” (Citations omitted).
For example, serious threats of violence will serve to extinguish reinstatement rights and limit
back pay. Hadco Aluminum & Metal Corp., 331 NLRB 518 (2000); Alto-Shoom, Inc., 307 NLRB
1466, 1467 (1992). Threats made to induce witnesses to testify in a certain way result in the
same forfeitures. Lear-Sigler Mgt., 306 NLRB 393, 394 (1992).
I first turned to the News-Press’ argument concerning Robert Guiliano. On March 26,
two months after he was terminated Guiliano send McCaw an uninvited three-page email
message that included:
If you want me to help you fix this paper, my suggestions would be these: Ideally,
I would recommend firing [Armstrong, Steepleton, and Apodaca] immediately.
[Armstrong] is the worst editorial writer I have ever seen and makes you and the
newspaper hated for no reason; [Steepleton] does not exude leadership qualities
such as courage and character that reporters could look up to and respect. And
[Apodaca], unless I am unaware of any efforts on her part to give you advice that
was straight up, but you may not have wanted to hear, is not really serving your
best interests either by just agreeing with anything you say.[Von Wiesenberger] I
don’t want to advise you about because you two are romantically involved. So if
you want to keep him in some capacity on the newspaper, go ahead, but not in a
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position where he would be expected to lead the newsroom because he has no
background, education or experience in that field. His talks during the
management training meetings demonstrated that, with him prefacing his
remarks saying, “Well, I don’t know about newspapers, but . . . .” This does not
reflect on my opinion of him as a person: he acts like a gentleman, dresses
impeccably, is relaxed, soft spoken, intelligent, educated and someone I would
feel comfortable hanging out with.
In the message Guiliano gave specific guidance to McCaw as to how she should handle
Armstrong, Steepleton, and Apodaca. Among other things, Armstrong “must be required to
read and apply the principles of ‘How to Win Friends and Influence People’ by Dale Carnegie.”
And Steepleton “is going to have to be expected to apply the Golden Rule. . ..” Interspersed in
Guiliano’s advice for Apodaca was;
If [Steepleton] was the sheriff and [Armstrong and Apodaca] his deputies in an
old West town and a mob was coming to lynch you, you’d be out of luck. They’re
not the type to stand up to the mob and declare, “yeah, you might kill us, but
we’re taking the first bunch of you with us. Who wants it first?” Nope, it’d be
more like a scene at the end of a Three Stooges movie, with [Steepleton,
Armstrong, and Apodaca] peeling out of town with [Steepleton] yelping “Wooob
woooob woooob wooob” and all you’d see is the soles of their shoes kicking up
dust while the townsfolk toss a rope around your neck and drag you to the
nearest tree.
Later in the message Guiliano continued:
Also, sorry about that vivid description of you during our meeting. That image of
you was burned in my mind because you reminded me so much of a former
fiancée I had in New York years ago. I prefer the image I have of you when you
swung by the elevator and smiled at me after I shouted out to you, “Hi Wendy!”
and pointed to myself saying, “Bob G.” and you replied, “I know who you are.”
That’s my favorite recollection of you.”
The test is whether Guiliano’s comments rendered him unfit for reinstatement and
served to end his back pay at the time he made them. This is a close issue. On the one hand
Guiliano had shown his penchant for humorous asides as shown in his earlier messages to
Orsua and Steepleton. I also note that there were no direct threats of harm or violence or
attempts to suborn perjury that are the hallmarks in most cases where the Board has concluded
a person was no longer eligible for reinstatement. On the other hand, Guiliano’s remarks were
entirely uninvited, suggested that McCaw fire Steepleton, Armstrong, and Apodaca, referred to
Steepleton, Armstrong, and Apodaca in a somewhat bizarre, if comedic, manner, commented
on McCaw’s romantic relationship with von Wiesenberger, referred to von Wiesenberger in a
condescending manner, and overall displayed a level of familiarity that seemed inappropriate.
Taking into account the fact that Guiliano would be returning in his role as a manager and would
have to work directly not only with Steepleton, Armstrong, and Apodaca but with McCaw and
von Wiesenberger also, I conclude that the News-Press has shown that Guiliano should not be
reinstated. I also terminate the News-Press’ back pay obligation as of March 26, 2007.
Because I have concluded that Guiliano’s March 26 email message to McCaw terminates the
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New-Press’ obligation to reinstate him and ends his back pay period, I need not resolve whether
other evidence pointed to by the New-Press in its brief would also lead to the same result.14
The News-Press argues that the six employees it fired for their conduct on February 2
on the Anapamu footbridge are not entitled to reinstatement and full back pay because their
conduct there was unlawful. In order to fully understand this argument a more detailed
description of the footbridge is required. As indicated, the footbridge crosses over Highway 101,
a busy thoroughfare in the Santa Barbara area. The footbridge itself has fencing that extends in
an uncompleted arc curving over it. The day before the event Hobbs contacted Sergeant Mike
McGrew, the watch commander on duty that day for the Santa Barbara Police Department. He
advised Hobbs that if they affixed the signs or banners to the footbridge it would be a municipal
code violation, but if they just held the banners they could do that all day long. However, the
evidence indicates that the presence of the signs and banners on the overpass would be an
unauthorized encroachment that would be unlawful because it poses a safety problem to the
traveling public. A conviction for such an unauthorized encroachment is considered a
misdemeanor under California law. Of course, a final resolution of that matter would be for
courts of appropriate jurisdiction and not the NLRB. And although the conduct on the overpass
was visible and publicized extensively in the media, the appropriate authorities did not cite the
demonstrators with any violation of the law. Nonetheless, the News-Press paid Ralph Norman
Haber and Lyn Haber, human factors consultants, to prepare a report concerning the display on
the banners and signs on the overpass on February 2. McCaw reviewed the 24-page report the
day before she was to testify in this proceeding, in particular the less than two pages of the
report that dealt with safety issues. In that regard the report concluded “Our opinion is that the
display of signs on February 2, 2007, not only violated the law, but endangered the safety of the
drivers on US 101.” At the trial McCaw was asked “So the question is would you consider
having your paper fire the people for that activity as I have described it?” (emphasis supplied)
McCaw answered “Yes.” Interestingly, earlier in the proceedings Steepleton contradicted
McCaw’s testimony. He was asked whether it was a dischargeable offense for employees to
affix a sign on a footbridge over Highway 101 and he answered that it would depend on the
content of the sign. And importantly Apodaca, the News-Press’ human resources head, testified
at the hearing but did not corroborate McCaw’s testimony. Even putting aside the equivocal
nature of the testimony, I do not credit it. I simple do not believe that had the employees, for
example, displayed banners and signs on the overpass celebrating the victory of a local sports
team that McCaw would have fired them. I again note that the employees were not convicted of
or even cited for any criminal behavior. And I note that there is no evidence that the News-
Press has ever before hired an expert to assess the alleged misconduct of any employee, have
the expert prepare an extensive report, and then rely on the report to terminate employee for
off-the-job alleged misconduct.
The News-Press contends that Burns in not entitled to a full remedy due her because of
several incidents. First, at the hearing it pointed to the February 8 letter, recounted in full above,
that Burns drafted that was sent to advertisers of the News-Press before the library meeting set
forth above. I conclude that none of the comments in that letter were either deliberately false or
were made with a reckless disregard for the truth. Nothing in that letter approaches the type of
misconduct that would warrant denial of reinstatement.

14 I have considered the comments posted by Guiliano on February 10 to the Santa Barbara
Independent website. While those comments criticize Apodaca and Steepleton, they are not of the nature
of his comments in his March 26 email message to McCaw.
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The Union provided the News-Press with some documents that the News-Press had
subpoenaed, one of which was an email stream between Burns and Rhonda Manville beginning
November 5. The News-Press introduced this evidence to support its contention that Burns
should not be entitled to back pay and reinstatement. In the email exchange Burns wrote:
Dear Rhonda,
Thanks for calling! Yes, I went out the way I wanted to, though I already miss reporting.
I’ll continue to be engaged in the campaign against [McCaw], however. There are talks
here about some New Media with 24-hour local news reporting online and a print version
on Sunday, all for free. In the meantime the old [News-Press] has been destroyed by a
grossly incompetent and tyrannical owner. We’re going out with radio ads urging
cancellations next week. Don’t know what the end of this will be … but I’m in it for the
fight. Of course, I’m contesting my firing at the National Labor Relations Board,
represented by the Teamsters! Cool, huh.
Hope all is well…
What is your phone number?
Love,
Melinda
Manville replied:
Hi Melinda,
I can’t believe all the crap going on down there. My God!!!!! How are Dawn and Nora
holding up without you? I tried to call you the other day, and your mailbox at home was
full – full of well wishes from your many fans, I’m sure.
My phone number here is … . I’ll be away for this weekend, but I can’t wait to talk to
you. I hope you and the kids and Cathy are well (I hope I spelled her name right.)
I really miss you Melinda! Sending you love and kisses.
Rhonda
Isn’t it sad about Ruthie? To me she just seemed invincible, and it is such a big loss.
She was one of a kind.
I note that this private email exchange between a friend obviously trying to console another
friend became known to the community at large not as a result of Burns’ dissemination of it but
by the News-Press’.
Another example follows. On October 31 Mike Brown sent an email message to Burns that
read:
Hi Melinda –
We’ve spoken a few times (I worked on ECP’s Regional Impacts of Growth Study).
Scott Hadley passed along your email. Just wanted to write and say thanks for all the
great reporting you’ve done over your career. You’re an asset to the community and I
hope you prevail. I realize the battle is likely to be a long one, but I trust that you know
that there are a great number of people in the community who admire your work and
your stand at [the News-Press.]
Best wishes and solidarity.
Burns replied:
Thanks very much Mike. I’m sticking around to help oust [McCaw], so long as I
can figure out a way to make a living.
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From this email exchange the News-Press projects that one of the goals of the union organizing
campaign was to remove McCaw as owner of the News-Press and that therefore Burns and
others should be denied reinstatement. But these matters must not be viewed in isolation or
blown-up in significance outside of the context in which they occur. Nothing in this passing
reference serves to deprive Burns or the other discriminatees of the full remedy to which they
are entitled for their unlawful discharges.
On about June 21, 2007, Burns told a local public television station that “I would never
have believed that the newspaper where I worked for 21 years so proudly would collapse and
fall victim to a publisher who has no respect for her own workers or for the freedom of the press”
and “Without a contract, it would be impossible to report the news fairly for a newspaper where
the publisher was accustomed to using her paper to smear her enemies and curry favor with her
friends” and “Will a wealthy woman be allowed to bully an entire community?” There is no
evidence whether or not the television station broadcasted Burns’ statements.
Taking into account that Burns was unlawfully fired, the News-Press has repeatedly
violated the rights of its employees, the News-Press itself had conducted a rhetorically hard-
hitting anti-union campaign, and Burns’ comments were made in the course of her continued
support for the Union, I conclude that none of Burns’ rhetoric described above warrants a denial
of reinstatement. The News-Press also argues that Burns and Davison cannot be reinstated
because there were fired for biased reporting. But because I have concluded above that they
were fired for their union activity and not for biased reporting this argument fails.
The News-Press points to a letter sent to the community by Burns, Evans, Davison,
Hobbs, Kuznia, McManigal, Schultz, and Zant, all of whom I have found were unlawfully fired,
on July 14, 2007 to mark the one-year anniversary of the events at the News-Press. It also
points to a letter authored by Burns on November 21, 2006, and to a November 20, 2006 article
containing quotes from Hobbs. In context, nothing is these letters remotely approaches the
type of misconduct that would warrant a denial of reinstatement or back pay. I find it
unnecessary to describe them further and add to an already lengthy decision.
At the hearing I ruled that the News-Press would be allowed to present whatever
evidence it had concerning after-acquired evidence of misconduct but that I would not allow it to
probe witnesses on the stand in the hope of discovering other evidence that it did not have. The
Union filed a motion to prohibit or restrict the News-Press’ questioning of discriminatees and
others for post-discharge statements. The Union argued that the News-Press’ inquiries into
these matters was having a chilling effect on the employees’ rights under the Act. In its brief the
Union again asserts that the News-Press’ inquiries had the effect of discouraging employees
from engaging in union activities. I agree that this type of meticulous examination of the past
activities of unlawfully discharged employees by an employer in the hope of hitting a jackpot
may have a tendency to discourage employees from engaging in protected activity in the first
place. After all, but for the unlawful terminations the employer would never have scoured the
terminated employee’s statements and conduct. Some limits are in order. Indeed, the Board
has held that it is unlawful to discipline employees for misconduct that was uncovered during an
investigation that was unlawfully motivated. Business Products – Division of Kidde, Inc., 294
NLRB 840 fn. 3 (1989). More problems arise when the methods of uncovering the after-
acquired evidence are first revealed during trial. It may be that in the future the Board will
require a respondent to plead in its answer as an affirmative defense matters involving after-
acquired evidence of misconduct. This might allow the government to counter, if appropriate,
that the search itself was unlawful. But the limits on this type of activity have to be developed by
the Board and the General Counsel.
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VII. Subpoena Issues
All parties raised a number of subpoena matters that I disposed of before and during the
hearing. Most, in my view, do not warrant specific discussion in this decision. I do, however,
discuss in some detail the matters described below. Before the hearing began the News-Press
subpoenaed a number of employees requiring that they give the News-Press: “Any and all
documents, including but not limited to affidavits, declarations, or statements that you have
provided to the NLRB.” Of course, no citation of authority is needed for the settled proposition
that the News-Press is not entitled witness statements given to the NLRB except and until
employees have testified in an NLRB proceeding and then only after a timely request for those
statements for the purpose of cross-examination.15 The General Counsel filed a petition to
revoke those subpoenas and the Union filed a motion for sanctions against the News-Press for
having sought them. During a pre-trial conference call I granted the motion to revoke those
subpoenas in their entirety. And in considering the Union’s request for sanctions I considered
the possibility that some employees, unaware of the fact that I had granted the petition to
revoke, would feel compelled to appear at the start of the hearing and provide their witness
statements to the News-Press. I also considered that some confusion might result if employees
were informed that they did not have to comply with certain parts of the subpoenas but had to
comply with others. Keep in mind that the News-Press had served its subpoenas on a number
of people and neither the General Counsel nor the Union knew all of their names and
addresses. I therefore required the News-Press to advise those persons in writing of my ruling
and it did so. I concluded that this measure was sufficient to undue any harm done by the
News-Press and I otherwise denied that Union’s request for sanctions. I advised the News-
Press that it could re-serve properly drawn subpoenas on those employees if it so desired and it
apparently did so.
The News-Press also raised a number of issues concerning whether the Union and the
employees had properly complied with the subpoenas duces tecum that it had served on them.
Some issues it raises are frivolous. For example, in complying with the subpoenas on behalf of
the Union and the alleged discriminatees Ira Gottlieb, the Union’s attorney, pointed out in a
letter in several instances that he was not turning over copies of documents that were created
by the News-Press and therefore already in its possession. In a sworn affidavit supplied in this
case Gottlieb averred that this was the procedure that the Union and the News-Press had
agreed upon in the earlier hearing before Judge Schultz in order to save the parties time and
expense. The News-Press did not object to that procedure in this case by informing the Union
otherwise, but instead asserted for the first time at trial that the Union had not complied with the
subpoenas by failing to provide it with copies of documents that it already had. Although the
Union would be required to provide those documents if the News-Press insisted, parties often
make arrangements to lessen the burdens of subpoena compliance and the News-Press ought
to first have voiced its concerns to the Union rather waiting until the trial and raising this as a
noncompliance issue. Cooperation between the parties and self-resolution of the mechanics of
subpoena compliance are essential before the Board and the Courts should become involved. I
further note that the News-Press has failed to show any substantial prejudice to support its
request for sanctions.
The News-Press also complains that some employees and the Union failed to produce
the “peeps” and “blitzkrieg” emails sent to them by Schultz. It requests that sanctions be

15 The General Counsel did not amend the Complaint to allege that the requests for the witness
statements violated Section 8(a)(1).
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imposed. However, except as indicated below I conclude the failure to supply those emails was
because they had been deleted and the employees and the Union no longer had them to turn
over. For example, McManigal testified that depending on the nature of the email message, he
will delete some immediately, delete some later, and retain some. He credibly testified that he
could not recall receiving these email although given he conceded that they were sent to him
and therefore he must have received them. Given the nature of the email messages, I do not
find this surprising. Evans credibly testified that she receives many emails and she deletes
them every couple weeks. After his initial testimony at the trial the News-Press served Schultz
with a subpoena duces tecum covering the email messages. He complied with that subpoena
by turning over certain documents, but the August 25 and September 5 email messages were
not among them. Schultz credibly testified that his computer has a feature that, when activated,
saves a message for 30 days and after that the message is automatically deleted. Hughes did
a thorough search for the documents that were subpoenaed by the News-Press and turned
those documents over but the contested emails were not among them. She credibly testified
that she receives so many emails that they were clog her inbox and that she routinely deleted
those that seemed only “related to the moment.” Gottlieb was also served with a subpoena that
covered the emails. He represented on the record and in a sworn affidavit that he too had
deleted the emails. And although I gave the News-Press the opportunity to examine Keegan
under oath concerning his failure to provide the emails, the News-Press decided not to do so. I
note that there is no evidence that anyone deleted these emails to avoid turning them over to
the News-Press. That people routinely delete email messages is simply part of using a
computer to send and receive communications.
Hobbs was subpoenaed to provide information relating to the August 24 incident; she did
not initially supply the Schultz “peeps” email. After that message became a matter of
controversy in this case she was asked to look for it again, discovered it, and provided a copy to
the News-Press. She credibly testified that in reviewing her messages with the eye to locating
those covered by the subpoena she read this message, thought it was unimportant and not
covered by the subpoena. In the process of locating that email to turn over to the News-Press
she discovered two other email message concerning the August 24 incident. Both, in general,
confirmed her testimony at trial concerning those events. Although Hobbs should have been
more careful, I find nothing worthy of sanctions in her initial failure to supply copies of those
emails.
A more complicated matter involves a copy of the “peeps” email that was later forwarded
to Gottlieb by Rob Kuznia. On September 13, the night before Kuznia was scheduled to appear
as a witness subpoenaed by the News-Press, Kuznia reminded Gottlieb that Kuznia had
forwarded Gottlieb a copy of Schultz’ “peeps” email. Gottlieb did not give that email to the
News-Press until he forwarded it to the News-Press that night. Gottlieb explained on the record
and in his sworn affidavit that Kuznia was initially subpoenaed by the News-Press on August 3.
Kuznia identified some material covered by the subpoena and described those documents to
Gottlieb. However, the material described by Kuznia to Gottlieb and then forwarded to the
News-Press did not include the “peeps” email. On August 13, before the hearing opened,
Kuznia did forward a copy of the “peeps” email to Gottlieb. Gottlieb replied by telling Kuznia that
he did not have to provide that a copy of that message to the News-Press; Gottlieb claimed that
he initially misunderstood my ruling concerning what information he was required to produce.
Later, according to Gottlieb, after the hearing opened and my ruling became clearer to Gottlieb
he sent a message on September 5 to everyone who he knew had been subpoenaed to re-
review their email boxes and folders to see what else they might have. In the meantime he had
forgotten that on August 13 Kuznia had sent him the copy of the “peeps” email. Gottlieb said:
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I apologize to the Court. This was an inadvertent failure to fully disclose and it
was not meant, in any way, to hide anything and obviously, substantively the
email has already been produced, which I understand is not an excuse or a
reason not to turn it over but that’s the best I can – I can reconstruct what
happened.
As I noted on the record in this case, Gottlieb certainly such have been more careful. But I
found that sanctions were not warranted because I concluded that this error was inadvertent,
the information was finally provided, the News-Press was not prejudiced, and Gottlieb
expressed regret and showed an understanding that this type of conduct should not be repeated
in the future.
Conclusions of Law
1. Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a) (1) and Section 2(6) and (7) of the Act by:
(a) Threatening to discipline employees if they engage in union and protected concerted
activity.
(b) Coercively interrogating employees concerning their union activities.
(c) Instructing employees to remove buttons from their clothing and signs from their
vehicles reading “McCaw Obey the Law.”
(d) Terminating Robert Guiliano because he refused to commit an unfair labor practice.
(e) Engaging in surveillance of the union activities of employees.
2. Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act by:
(a) Issuing letters of suspension to employees because those employees engaged in
union and protected concerted activity.
(b) Canceling the column written by Starshine Roshell because she supported the
Union.
(c) Giving lower evaluations to Anna Davision, Dawn Hobbs, Melissa Evans, and Karna
Hughes because they engaged in union activity, thereby depriving them of annual
performance bonuses.
(d) Discharging Melinda Burns, Anna Davison, Dawn Hobbs, Rob Kuznia, Barney
McManigal, Tom Schultz, John Zant, and Melissa Evans because they engaged in
union activity.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent having discriminatorily discharged
employees, with the exception that follows, it must offer them reinstatement and make them
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whole for any loss of earnings and other benefits, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). The exception is that the Respondent is not required to
reinstate Robert Guiliano and his back pay periods ends on March 26, 2007. Respondent
having unlawfully given lower evaluations to Anna Davision, Dawn Hobbs, Melissa Evans, and
Karna Hughes, thereby depriving them of annual performance bonuses, I shall require it to
rescind those evaluations and prepare new evaluations without regard to those employees’
support for the Union. Based upon my assessment of the minimal or nonexistent reasons given
to support the lower evaluation I conclude that, consistent with earlier years, each of these
discriminatees would have received a performance bonus and I shall require the Respondent to
pay these employees a performance bonus, with interest. I shall leave the determination of the
exact amounts of bonuses to the compliance portion of this proceeding after the Respondent
has completed its nondiscriminatory evaluations. The amount shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The General Counsel seeks a broad cease and desist order. In addition to the violations
listed above the General Counsel points to a statement made by Barry Capello, an attorney for
the News-Press, to Colby Frazier works as a reporter for the Santa Barbara Daily Sound.
Speaking about the six reporters who were fired for the February 2 events on the footbridge,
Capello told Frazier that the News-Press had an absolute right to do what they did, and would
do it again in the face disloyalty such as that. Capello continued stating that there are other
people who work at that paper that have the right to have their incomes and lives protected and
that employees that are out attempting to damage the newspaper that they work for would be
terminated by any employer in town. Capello stated that the terminations had nothing to do with
union activities. On the one hand, there is no evidence that the News-Press has shown a
proclivity to violate Sections 8((a)(2) or (4) of the Act. And while I have made no findings
concerning violations of Section 8(a)(5), the News-Press’ assertions that the matter of
journalistic integrity is solely one for management may reveal concerns in that area that cannot
be ignored at this point. More importantly, the flagrant nature of the violations in this case, from
the unlawful discharges of Burns and Davison to the six employees for their protected conduct
on the Anapamu Bridge, resulted in the termination of over 20 per cent of the unit and 25 per
cent of the probable union voters. To make matters worse, the News-Press discharged a
supervisor who would not go along its unlawful conduct. Add the obvious violations of Section
8(a)(1); taken together they show the News-Press widespread, general disregard for the
fundamental rights of the employees. I find it necessary to issue a broad Order requiring the
Respondent to cease and desist from infringing in any other manner on rights guaranteed
employees by Section 7 of the Act. Hickmott Foods, 242 NLRB 1357 (1979).
Citing McAllister Towing & Transportation Co., 341 NLRB 394, 400 (2004), the General
Counsel also seeks an order requiring Steepleton to read to the employees, or at the option of
the News-Press, to have a Board agent read, the Notice to Employees in this case. While the
issue is close, I conclude the broad cease and desist order should be adequate to prevent
further violations and assure employees of their rights under the Act. Of course, if the News-
Press continues to violate the Act additional remedial measures might be necessary.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.16
ORDER
The Respondent, Ampersand Publishing, LLC d/b/a Santa Barbara News-Press, Santa
Barbara, California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discipline employees if they engage in union and protected
concerted activity.
(b) Coercively interrogating employees concerning their union activities.
(c) Discharging supervisors or managers because they refuse to commit an unfair
labor practice.
(d) Engaging in surveillance of the union activities of employees.
(e) Issuing letters of suspension to employees because those employees engaged in
protected concerted activity.
(f) Instructing employees to remove buttons from their clothing and signs from their
vehicles reading “McCaw Obey the Law”
(g) Discharging or otherwise discriminating against any employee for supporting the
Graphic Communications Conference, International Brotherhood of Teamsters or
any other union.
(h) Canceling the publication of columns appearing in the newspaper that are written
by supporters of the Union.
(i) Giving lower evaluations to employees because they engaged in union activities,
thereby depriving them of annual performance bonuses.
(j) In any other manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Melinda Burns, Anna
Davison, Dawn Hobbs, Rob Kuznia, Barney McManigal, Tom Schultz, John Zant, and
Melissa Evans full reinstatement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.

16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(b) Within 14 days from the date of the Board’s Order, rescind the discriminatory
evaluations given to Anna Davision, Dawn Hobbs, Melissa Evans, and Karna Hughes
and prepare new evaluations without regard to those employees’ support for the
Union
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges, letters of suspension, and discriminatory
evaluations and within 3 days thereafter notify the employees in writing that this has
been done and that the discharges, the letters of suspension, and the discriminatory
evaluations will not be used against them in any way.
(d) Make Melinda Burns, Anna Davison, Dawn Hobbs, Rob Kuznia, Barney
McManigal, Tom Schultz, John Zant, Melissa Evans, Anna Davision, Melissa Evans,
Karna Hughes, and Robert Guiliano whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the manner set forth in the
remedy section of the decision.
(e) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
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(g) Within 14 days after service by the Region, post at its facility in Santa Barbara,
California, copies of the attached notice marked “Appendix.”17 Copies of the notice,
on forms provided by the Regional Director for Region 31, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by the
Respondent at any time since August 17, 2006.
Dated, Washington, D.C. December 26, 2007
____________________
William G. Kocol
Administrative Law Judge

17 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten to discipline employees if they engage in union and protected
concerted activity.
WE WILL NOT coercively interrogating employees concerning their union activities.
WE WILL NOT issue letters of suspension to employees because those employees engaged in
union and protected concerted activity.
WE WILL NOT instruct employees to remove buttons from their clothing and signs from their
vehicles reading “McCaw Obey the Law”
WE WILL NOT discharge supervisors or managers because they refuse to commit an unfair
labor practice.
WE WILL NOT engage in surveillance of the union activities of employees.
WE WILL NOT cancel the publication of columns appearing in our newspaper that are written by
supporters of GRAPHICS COMMUNICATIONS CONFERENCE, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS.
WE WILL NOT give lower evaluations to employees because they engaged in union activities,
thereby depriving them of annual performance bonuses
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the
GRAPHICS COMMUNICATIONS CONFERENCE, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS.
or any other union.
WE WILL NOT in any other manner interfere with, restrain or coerce employees in the exercise
of their rights guaranteed under Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Melinda Burns, Anna Davison, Dawn
Hobbs, Rob Kuznia, Barney McManigal, Tom Schultz, John Zant, and Melissa Evans full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s Order, rescind the discriminatory
evaluations given to Anna Davision, Dawn Hobbs, Melissa Evans, and Karna Hughes and
prepare new evaluations without regard to those employees’ support for the Union.
WE WILL make Melinda Burns, Anna Davison, Dawn Hobbs, Rob Kuznia, Barney McManigal,
Tom Schultz, John Zant, Melissa Evans, Anna Davision, Melissa Evans, Karna Hughes, and
Robert Guiliano whole for any loss of earnings and other benefits resulting from their discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharges of Melinda Burns, Anna Davison, Robert Guiliano, Dawn Hobbs, Rob
Kuznia, Barney McManigal, Tom Schultz, John Zant, and Melissa Evans, the unlawful letters of
suspension given to Al Bonowitz, Kim Favors, Karna Hughes, Rob Kuznia, Lara Milton, Mike
Traphagen, Dawn Hobbs, George Hutti, Barney McManigal, Tom Schultz, and Alan McCave
and the discriminatory evaluations given to Anna Davision, Dawn Hobbs, Melissa Evans, and
Karna Hughes and WE WILL, within 3 days thereafter, notify each of them in writing that this
has been done and that the discharges, the suspension letters, and the discriminatory
evaluations will not be used against them in any way.
Ampersand Publishing, LLC d/b/a Santa Barbara
News-Press
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700
Los Angeles, California 90064-1824
Hours: 8:30 a.m. to 5 p.m.
310-235-7352
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 310-235-7123.
JD(SF)-37-07
Santa Barbara, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES SAN FRANCISCO OFFICE
AMPERSAND PUBLISHING, LLC
d/b/a SANTA BARBARA NEWS-PRESS
and Cases 31-CA-27950
31-CA-27965
GRAPHICS COMMUNICATIONS CONFERENCE 31-CA-28043
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 31-CA-28104
31-CA-28116
31-CA-28131
31-CA-28151
31-CA-28161
31-CA-28162
and 31-CA-28157
ROBERT GUILIANO, an Individual
TABLE OF CONTENTS
Statement of the Case ...................................................................................................... 1
Findings of Fact ................................................................................................................ 2
I. Jurisdiction.............................................................................................................. 2
II. Alleged Unfair Labor Practices............................................................................... 2
A. Background ................................................................................................... 2
B. Union Organizing Effort ................................................................................. 12
III. Credibility of the Witnesses................................................................................... 19
IV. Legal Overview..................................................................................................... 22
V. Unfair Labor Practice Allegations........................................................................... 26
A. Cancellation of Roshell’s Column .................................................................. 26
B. Threats and Two-Day Suspensions............................................................... 31
C. Termination of Melinda Burns........................................................................ 36
D. Interrogations ................................................................................................ 42
E. Performance Evaluations and Bonuses ......................................................... 45
F. Removal of Buttons and Signs....................................................................... 51
G. Termination of Anna Davison ........................................................................ 51
H. Guiliano’s Termination................................................................................... 57
I. Termination of Six Employees and Related Interrogations. ............................. 60
J. Surveillance of Rallies.................................................................................... 62
K. Surveillance at Library Meeting...................................................................... 62
VI. Issues Concerning Reinstatement and Backpay.................................................. 64
VII. Subpoena Issues................................................................................................. 69
Conclusions of Law........................................................................................................... 71
Remedy ............................................................................................................................ 71
ORDER ............................................................................................................................ 73
APPENDIX ....................................................................................................................... 76