Santa Barbara News-Press

National Labor Relations Board - Administrative Judge Opinions

Feb 5, 2010

31-CA-029253 (N.L.R.B. Feb. 5, 2010)

JD(SF)–04-10
Santa Barbara, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AMPERSAND PUBLISHING, LLC
d/b/a SANTA BARBARA NEWS-PRESS
and 31-CA-29253
GRAPHIC COMMUNICATIONS CONFERENCE,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Joanna F. Silverman, Atty., (Region 21) of Los Angeles,
California, Counsel for the General Counsel
Richard R. Sutherland, Atty., (Cappello & Noel, LLP)
of Santa Barbara, California, Counsel for the Respondent.
Glenn E. Plosa, Atty., (The Zinser Law Firm) of
Nashville, Tennessee, Counsel for the Respondent.
DECISION
I. Statement of the Case
LANA PARKE, Administrative Law Judge. Pursuant to charges filed by Graphic
Communications Conference, International Brotherhood of Teamsters (the Union), on August 7,
2009 the Regional Director of Region 31 (Region 31) of the National Labor Relations Board (the
Board) issued a Complaint and Notice of Hearing (the August 2009 complaint). The complaint
alleges that Ampersand Publishing, LLC d/b/a Santa Barbara News-Press (the Respondent)
violated Section 8(a)(1) of the National Labor Relations Act (the Act). This matter was tried in
Santa Barbara, California on October 26-27, 2009.1
II. Issue
Did Respondent violate Section 8(a)(1) of the Act on May 7 by issuing subpoenas
duces tecum to its current or former employees requesting affidavits provided to
Region 31 pertaining to the charges in Case Nos. 31-CA-28589, 31-CA-28661, 31-
CA-28667, 31-CA-28700, 31-CA-28733, 31-CA-28734, 31-CA-28799, 31-CA-28889,
31-CA-28890, 31-CA-28944, 31-CA-29032, 31-CA-29076, 31-CA-29099, 31-CA-
29124?
III. Jurisdiction
At all relevant times, the Respondent, a limited liability company, with an office and
place of business in Santa Barbara, California (the Respondent’s facility) has been engaged in
the publication of the Santa Barbara News-Press, a daily newspaper. During the calendar year
ending December 31, 2008, the Respondent derived gross revenues in excess of $200,000,

1 All dates herein are 2009 unless otherwise specified.
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held membership in or subscribed to an interstate news service, the Associated Press, and
advertised nationally sold products, including Cingular. During the same period, the
Respondent purchased and received at its facility goods valued in excess of $5,000 directly
from suppliers located outside the state of California. I find the Respondent has at all relevant
times been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. Respondent admits and I find the Union has at all relevant times been a labor
organization within the meaning of Section 2(5) of the Act.
IV. Findings of Facts
Based on the entire evidence of record and after considering the briefs filed by the
General Counsel and the Respondent, I find the following events occurred in the circumstances
described below during the period relevant to these proceedings. Unless otherwise explained,
findings of fact herein are based on party admissions, stipulations, and uncontroverted
testimony.
A. Litigation History
At all relevant times, the law firm of Cappello & Noel of Santa Barbara, California has
represented the Respondent in the proceedings described herein, and the following attorneys
have been agents of the Respondent within the meaning of Section 2(13) of the Act: A. Barry
Cappello (Mr. Cappello), Dugan P. Kelley (Mr. Kelley), and Richard R. Sutherland
(Mr. Sutherland).
On September 27, 2006, a union representation election was held in an appropriate unit
of the Respondent’s employees, which the Union won by a vote of 33 to 6. The Respondent
filed objections to the election and a hearing was held before Judge William L. Schmidt on
January 9 and 10, 2007. On March 8, 2007, Judge Schmidt recommended to the Board that the
objections be overruled.
On May 31, 2007, Region 31 issued an Order Consolidating Cases, Second
Consolidated Complaint, and Notice of Hearing in Cases 31-CA-27950 and 31- CA-28157 (the
2007 complaint). On August 14, 2007, Judge William G. Kocol commenced a 17-day hearing of
the issues presented by the 2007 complaint (the Kocol hearing).2 Mr. Cappello and Mr. Kelley
served as the Respondent’s attorneys in the Kocol hearing.
Prior to commencement of the Kocol hearing, the Respondent had subpoenaed a
number of employees requiring them to produce: “Any and all documents, including but not
limited to affidavits, declarations, or statements that you have provided to the NLRB” (the 2007
subpoenas). During a pre-hearing conference call with the parties, Judge Kocol granted the
General Counsel’s petition to revoke the 2007 subpoenas in their entirety on grounds the
Respondent was not entitled to witness statements given to the NLRB except and until the
subpoened employees had testified in an NLRB proceeding and then only after a timely request
for those statements for the purpose of cross-examination. Judge Kocol further required the
Respondent to advise the affected employees in writing of his ruling, with which direction the
Respondent apparently complied.
On August 16, 2007, while the Kocol hearing was going on, the Board adopted Judge
Schmidt’s recommendations regarding objections to the September 27, 2006 election and
certified the Union as the collective bargaining representative of the unit employees.

2 The Kocol hearing ended on September 26, 2007.
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On December 26, 2007, Judge Kocol issued his decision (the Kocol decision) finding,
inter alia, that the Respondent had violated the Act by threatening to discipline employees if
they engaged in union and protected concerted activity, coercively interrogating employees
concerning their union activities, instructing employees to remove buttons from their clothing
and signs from their vehicles inscribed with language protected by the Act; terminating a
supervisor because he refused to commit an unfair labor practice, issuing letters of suspension
to employees because they engaged in union and protected concerted activity, canceling a
writer’s column because she supported the Union, giving lower evaluations to certain
employees because they engaged in union activity, thereby depriving them of annual
performance bonuses, and discharging eight employees because they engaged in union
activity. The Kocol decision is still pending before the Board.3
On March 24, Region 31 issued an Order Consolidating Cases, Amended Consolidated
Complaint, and Notice of Hearing against the Respondent in Cases Nos. 31-CA-28589, 31-CA-
28661, 31-CA-28667, 31-CA-28700, 31-CA-28733, 31-CA-28734, 31-CA-28799, 31-CA-28889,
31-CA-28890, 31-CA-28944, 31-CA-29032, 31-CA-29076, 31-CA-29099, 31-CA-29124 (the
March 2009 complaint). The March 2009 complaint, as amended on April 15, alleged that the
Respondent had committed numerous violations of Sections 8(a)(1), (3), and (5) of the Act.4
Hearing on the March 2009 complaint allegations was ultimately scheduled to commence on
May 26.
On May 6-8, attorneys Mr. Cappello, Mr. Kelley, and Mr. Sutherland caused subpoenas
duces tecum (the 2009 subpoenas) to be issued to numerous current or former employees of
the Respondent. The 2009 subpoenas, in pertinent part, requested that the subpoened
individuals produce affidavits provided to Region 31 that pertained to the unfair labor practice
charges underlying the March 2009 complaint. The General Counsel and counsel for the Union
filed petitions to revoke the 2009 subpoenas.
On May 26, Judge Clifford Anderson commenced a 20-day hearing of the issues
presented by the March 2009 complaint (the Anderson hearing).5 At the Anderson hearing,
Judge Anderson revoked the 2009 subpoenas insofar as they sought production of affidavits

3 Following issuance of the Kocol decision, Region 31 filed a petition with the United States
District Court for the Central District of California seeking a temporary injunction pursuant to
Section 10(j) of the Act that would require the Respondent to comply with the remedies ordered
by Judge Kocol. On May 21, 2008, the court denied the petition, which denial the United States
9th Circuit Court of Appeals affirmed on January 26.
4 The March 2009 complaint alleged that Respondent violated Section 8(a)(5) and 8(a)(1) of
the Act by failing and refusing to bargain in good faith for an initial collective bargaining
agreement, by making unilateral changes to employees' terms and conditions of employment,
by bypassing the Union and dealing directly with a unit employee, by laying off unit employees,
by suspending and discharging a unit employee, by delaying in providing the Union with
requested information, by failing and refusing to bargain over the terms and conditions of unit
employees hired through temporary agencies or, in the alternative, by unilaterally transferring
unit work. The complaint also alleged that the Respondent violated Section 8(a)(3) of the Act by
discriminating against employees because of their Union activities and independently violated
Section 8(a)(1) by, inter alia, discouraging employees from cooperating in the on-going Board
investigation.
5 The Anderson hearing ended on August 11. Judge Anderson’s decision has not yet
issued.
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provided to Region 31 that pertained to the unfair labor practice charges at issue in the
Anderson hearing.
B. The August 2009 Complaint
On August 7, 2009 the Regional Director of Region 31 issued the August 2009
complaint. The August 2009 complaint alleged that the Respondent violated Section 8(a)(1) of
the Act by subpoenaing employees to produce affidavits provided to Region 31, pertaining to
the unfair labor practice charges underlying the March 2009 complaint (i.e. the 2009
subpoenas).6
V. Discussion
The General Counsel argues that by subpoenaing employees to produce affidavits
provided to the Board pursuant to unfair labor practice investigations, the Respondent
essentially attempted to engage in impermissible interrogation by requiring the involuntary
production of employee statements given to the Board. The General Counsel further argues
that demanding production of such statements prior to an employee’s testimony at a Board
hearing is inherently coercive and unlawful.
The Respondent defends its conduct on the following grounds: (1) any issues relating to
the 2009 subpoenas were resolved at the Anderson hearing; (2) serving subpoenas in a Board
proceeding is activity protected by the First Amendment to the United States Constitution;
(3) the subpoenas sought nothing from the region’s investigatory file, and the Respondent was
entitled to personally possessed documents and affidavits of the subpoenaed individuals
because no privilege protected such documents, or if it did, it was waived; (4) the federal rules
of evidence compel disclosure of a personally possessed copy of an otherwise privileged
document.7
The Board has a well-established policy against disclosure of witness statements
(except as provided in Sec. 102.118(b)(1) of the NLRB Rules and Regulations and Statements
of Procedure8), which has been sustained by the Supreme Court in NLRB v. Robbins Tire &

6 There is no contention that 2009 subpoena requests that were unrelated to Board-
procured affidavits or statements violated the Act.
7 At the hearing the Respondent, citing Ducane Heating Corp., 273 NLRB 1389 (1985),
argued that unfair labor practices alleged in the instant matter were outside the 10(b) period
because the Union on January 4 filed a charge in case 31-CA-28662 alleging the same theory
of violation, which it withdrew in March. I refused to receive evidence of the charge in case 31-
CA-28662, as it involved circumstances unrelated to the 2009 subpoenas at issue herein. The
Respondent raises the 10(b) argument again in its post-hearing brief. I decline to revisit the
issue.
8 Section l02.118(b)(1) provides that “after a witness called by the General Counsel or by
the charging party has testified in a hearing upon a complaint under section 10(c) of the Act, the
administrative law judge shall, upon motion of the respondent, order the production of any
statement ... of such witness in the possession of the General Counsel which relates to the
subject matter as to which the witness has testified." These provisions apply only to witnesses
the General Counsel or the charging party calls to testify. Clear Channel Outdoor, Inc., 346
NLRB 696, fn. 1 (2006).
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Rubber Co., 437 U.S. 214 (1978) and by circuit courts.9 Under the Board’s policy, the
Respondent is not entitled to employee witness statements given to the Board except and until
employees have testified in a Board proceeding and then only after a timely request for the
statements is made for the purpose of cross-examination. In Robbins Tire & Rubber Co, the
Supreme Court considered whether the Freedom of Information Act required the Board to
disclose, prehearing, statements of witnesses expected to testify at a hearing. The Court held
the Board was exempted from disclosing such statements prehearing, finding "the dangers
posed by premature release of witness statements would involve precisely the kind of
'interference with enforcement proceedings' that the [investigatory records exemption] was
designed to avoid." Id. at 239. The "most obvious risk," the Court stated, was that "employers
or, in some cases, unions will coerce or intimidate employees and others who have given
statements, in an effort to make them change their testimony or not testify at all." Id. at 239.
The Robbins Tire Court recognized that disclosure of witness statements (except as
provided in Sec. 102.118(b)(1)) could have a "chilling effect on the Board's [investigatory]
sources," since employees "may be reluctant to give statements to NLRB investigators at all,
absent assurances that unless called to testify at a hearing, their statements will be exempt
from disclosure until the unfair labor practice charge has been adjudicated." Id. at 241.10
Further the Board’s nondisclosure policy extends to the situation where an affiant has given
a copy of his/her statement to the Charging Party Union; neither that circumstance nor an
employee’s personal possession of a copy of the affidavit establishes, “clearly and
unmistakably, that the employee has consented to release the affidavit to the opposing
side.” H. B. Zachry Company, 310 NLRB 1037, 1038 and fn. 5 (1993).11
The Respondent included demands for employee witness statements given to the Board
in both its 2007 and its 2009 subpoenas to employees and former employees. Judge Kocol in
2007 and Judge Anderson in 2009, respectively, revoked the 2007 and 2009 subpoenas insofar
as they sought production of affidavits provided to Region 31 pertaining to the unfair labor
practice charges before them. The question before me is whether the Respondent’s 2009

9 See circuit court cases cited in Robbins Tire & Rubber Co., supra. The Court noted that
Congress in enacting the investigatory records exemption to the FOIA "was particularly
concerned that premature production of witnesses' statements in NLRB proceedings would
adversely affect that agency's ability to prosecute violations of the NLRA.” Id. at 238.
10 The Respondent argues that the holding of Robbins Tire is inapplicable because that
case involved a FOIA not a subpoena request, and the Court’s policy concerns related to the
disclosure of affidavits from the Board’s investigatory file not to the “production of a personally
possessed affidavit by an individual who could claim no privilege.” I do not agree that the
Robbins Tire holding is so restricted. The Court’s concern with the dangers of premature
release of witness statements is fully applicable to this matter.
11 The Respondent argues that H. B. Zachry is inapplicable because, inter alia, its disposition
has never been subject to judicial review and because its holding conflicts with that of Martin v.
Ronnigen Research & Development Co., 1 Wage & Hour Cas. 2d. (BNA) 176, 1992 Westlaw
409936 (W.D. Mich. 1992). In Zachry, the Board specifically rejected the approach taken in
Martin v. Ronnigen and instead applied Robbins Tire, supra, and held that it would not require
the charging part union to produce employee affidavits in possession of the General Counsel
and the union pursuant to the employer’s subpoena to the union. “Based on policy
considerations set forth in Robbins Tire,” the Board refused to require the affidavit’s production
“simply because the affiant gave a copy of it to the Charging Party Union.” Supra at 1037-38. I
am bound to follow Board law. Iowa Beef Packers, 144 NLRB 615, 616 (1963), enfd. in part 331
F.2d 176 (8th Cir. 1964).
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subpoena demand for employee witness statements interfered with, restrained, or coerced
employees in violation of the Act.
The Respondent’s first argument against an affirmative answer to the question is its
contention that Judge Anderson addressed the 2009 subpoenas at issue in this litigation and
resolved any disputes, thus mooting the issue. While Judge Anderson revoked the 2009
subpoenas insofar as they sought employee witness statements provided to the Board, the
issue of whether service of those subpoenas constituted unfair labor practices was not before
Judge Anderson, and he did not address that question. Therefore, the issue before me is not
moot.
The Respondent’s second argument is that serving a subpoena cannot violate the Act
because the right to subpoena is constitutionally protected by the First Amendment right to
petition the Government for a redress of grievances (the Petition Clause), contending that the
Noerr-Pennington Doctrine appropriately applies to Board proceedings. The Supreme Court
created the Noerr-Pennington doctrine in the context of two antitrust litigations: Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and United Mine
Workers v. Pennington, 381U.S. 657 (1965). The doctrine provides that in certain contexts the
First Amendment protects otherwise illegal conduct if it is part of a direct petition to government
or “incidental” to a direct petition. In the labor relations context, the Petition Clause protects
access to judicial processes, and the Court instructs that labor laws must be interpreted, where
possible, to avoid burdening such access. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S.
731, 741-44 (1983) (in light of the Petition Clause protection, a construction of the NLRA
permitting the Board to enjoin a well-founded but retaliatory lawsuit is untenable.) While the
Supreme Court has extended Noerr-Pennington immunity into labor law to protect direct
petitioning, it has not done so for “incidental” conduct. See Venetian Casino Resort, L.L.C. v.
NLRB, 484 F.3d 601, 612 (D.C. Cir. 2007). Subpoenaing documentary evidence from
witnesses for potential use in a judicial proceeding is conduct incidental to direct petitioning.
In arguing that the Petition Clause protects its conduct of subpoenaing Board-obtained
witness statements in contravention of Board policy, the Respondent analogizes this case to the
situation in B.E. & K. Construction Co., 351 NLRB 451 (2007). In that case, the Board, on
remand from the United States Supreme Court, held that the filing and maintenance of a
reasonably based lawsuit did not violate the Act regardless of the motive for bringing it.
Because the employer’s lawsuit in B.E. & K was reasonably based in fact and law, the Board
found that the filing of the suit did not violate Section 8(a)(1). In determining whether the B.E. &
K lawsuit was reasonably based, the Board applied “the same test as that articulated by the
Court in the antitrust context: a lawsuit lacks a reasonable basis, or is ‘objectively baseless,’ if
‘no reasonable litigant could realistically expect success on the merits’ [citation omitted].” The
Board concluded in B.E. & K. that “in order to avoid chilling the fundamental First Amendment
right to petition,” it would find “only lawsuits that are both objectively and subjectively baseless”
to be precluded under the Act, stating, “a lawsuit that targets conduct protected by the Act can
be condemned as an unfair labor practice if it lacks a reasonable basis and was brought with
the requisite kind of retaliatory purpose.”
The B.E. & K case is inapposite to the issue herein since B.E. & K involved direct
petitioning, i.e. a lawsuit, rather than conduct incidental thereto. Even assuming that
analogizing B.E. & K to the Respondent’s witness-statements subpoenas is apt, it is apparent
that the subpoena requests could be unfair labor practices if the requests lacked reasonable
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bases and were brought with coercive purpose.12 Accordingly, I reject the Respondent’s
contention that the allegations must be dismissed because “a subpoena served in the context of
litigation, even assuming arguendo, that it was retaliatory…is protected pursuant to the First
Amendment of the Constitution.”
The Respondent’s third argument is that it was entitled to personally possessed
affidavits of the subpoenaed individuals because no privilege protected them, or, alternatively,
that any such privilege was waived. The Respondent asserts the following as precluding any
privilege that might otherwise attach to an investigatory affidavit: a personally possessed
affidavit copy is not held in the Board’s investigatory file; no one from the Region informed
affiants that their affidavits were confidential, admonished them not to share their affidavits, or
gave safeguarding cautions; the Region does not act as the affiants’ personal attorney; the
regional investigator did not inform affiants that their affidavit disclosures were protected by any
sort of attorney-client privilege; the Region voluntarily provided affiants with their affidavits.13 In
its argument, the Respondent focuses primarily on the nonexistence or waiver of a valid
attorney-client privilege. The Respondent’s argument is misplaced. The employee witness
statements are not shielded from subpoena by attorney-client privilege but by the Board’s
longstanding policy of protecting employees from the reprisal and harassment inherent in labor
litigation by exempting their statements from disclosure unless and until they are called to
testify. This protection exists in order to remove any chilling effect that would otherwise befall
the Board's investigatory sources. Smithfield Packing Co., Inc., 334 NLRB 34, 34-35 (2001)
citing Robbins Tire & Rubber Co., supra. The Respondent has not persuasively explained why
the Board’s policy does not protect the employee statements it subpoenaed.
The Respondent’s fourth argument is that the Federal Rules of Evidence (FRE) compel
disclosure of a personally possessed copy of an otherwise privileged document.14 The Board’s
Rules and Regulations, Sec. 102.39,15 authorize application of the FRE to conduct of Board
proceedings insofar as practicable. Even assuming Sec. 102.39 unconditionally obliged the
administrative law judge conducting a board hearing to adhere to the FRE, the Respondent has
not identified any evidentiary rule therein that would compel subpoenaed employees to produce
investigatory Board affidavits, even those personally possessed. The Respondent points out
that FRE 612 permits an adverse party access to any writing a witness uses to refresh memory
for the purpose of testifying, either “(1) while testifying, or (2) before testifying, if the court in its
discretion determines it is necessary in the interests of justice,” subject to judicial excision of any
portions thereof unrelated to the witness’s testimony. Except for unusual circumstances, FRE

12 The question of whether the Petition Clause affords an employer the right to serve a
subpoena duces tecum that seeks documents later deemed to be legally unobtainable has not
been definitively answered, but the motivation underlying the subpoena is relevant. See Scott v.
Burress, 2008 WS 585072, at 6-7 (E.D.Mich. Mar.3, 2008) (holding that the magistrate judge
improperly awarded sanctions despite the fact that the subpoenas were improper because
"there is no indication in his memorandum opinion that he found [the] subpoenas to have been
issued in bad faith").
13 The Respondent infers from the testimony of Richard Mineards, an affiant in this matter,
that Board assurances, or lack thereof, regarding his affidavit apply generally to all affiants.
14 The Respondent argues that a personally possessed copy of an affidavit must be
produced pursuant to FRE 401, 402, 403, 502, and 612. FRE 401, 402, 403 concern the
relevance of proposed evidence, which does not bear on the issues herein; FRE 502 applies to
the attorney-client privilege and work-product protection, the inappositeness of which has
already been addressed.
15 NLRB Rules and Regulations and Statements of Procedure.
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612 contemplates production of such a writing after an adverse party has established the
witness used it to refresh memory, which would generally occur during cross-examination. In
fact, by requiring that a witness affidavit be supplied after a witness has testified without the
qualification that it have been used to refresh memory, Sec. 102.118(b)(1)16 gives somewhat
broader witness statement access to the adverse party than FRE 612 does. Accordingly, the
FRE does not insulate the Respondent from charges that its 2009 subpoena demand for
employee witness statements interfered with, restrained, or coerced employees in violation of
the Act.
Viewed objectively, in the circumstances set forth herein, the Respondent’s conduct of
issuing the 2009 subpoenas requiring its current or former employees to produce affidavits they
had provided to the Board had the effect of interfering with, restraining, or coercing employees
in violation of Section 8(a)(1) of the Act.17 Respondent’s 2007 subpoenas seeking employee
witness statements were revoked by Judge Kocol in a ruling that clearly delineated the Board’s
restrictions on production of such statements. Nevertheless, through issuance of the 2009
subpoenas, the Respondent again sought production of restricted witness statements. The
Respondent’s twice-repeated attempt to force current or former employees to disclose protected
witness statements outside the parameters set by the Board’s rules can reasonably be expected
to have a chilling effect on employees’ right to cooperate in Board investigations. The Board’s
relevant regulatory language and case law involve complex issues and express complex
concepts; it is both logical and realistic to expect reasonable employees to fear that the Board
might not be able to prevent premature or improper release of voluntary witness statements,
which, in turn, might subject them to employer intimidation or coercion regarding their
cooperation in the investigation or their testimony at hearing, all of which could chill employee
rights. Viewed subjectively, the Respondent must have intended such a coercive effect. The
Respondent has provided no viable explanation or legal justification for twice seeking
employees’ Board statements. Judge Kocol’s clearly stated ruling, summarized in the Kocol
decision, by which he revoked the Respondent’s 2007 subpoena of witness statements outlined
the law and regulations governing disclosure of employee statements. The reasoning of Judge
Kocol’s ruling unmistakably applied to the similar subpoena requests the Respondent pressed
for in the 2009 subpoenas. Judge Kocol’s ruling had to have put the Respondent on notice that
such subpoena requests were improper and would not be sustained. Nonetheless the
Respondent issued the 2009 subpoenas in a work environment tainted by the numerous,
serious unremedied unfair labor practices found by Judge Kocol. In those circumstances, it is
not only reasonable, but nearly unavoidable, to infer that in issuing the 2009 subpoenas, the
Respondent was motivated, at least in part, by a desire to quell employee willingness to give
evidence to, or for, the General Counsel. Accordingly, I find that by issuing subpoenas to
current and former employees prior to their testimony at a Board hearing, requesting their
copies of affidavits they had submitted to the Board in an unfair labor practice investigation, the
Respondent violated Section 8(a)(1) of the Act.18

16 NLRB Rules and Regulations and Statements of Procedure.
17 Application of an objective standard requires the analysis to focus on the probable
perspective of reasonable employees upon receiving or learning of the 2009 subpoenas. See
Flexsteel Industries, 311 NLRB 257, 257 (1993).
18 In light of my finding herein, I find it unnecessary to consider whether, as the General
Counsel contends, the Respondent attempted to engage in impermissible interrogation by
requiring the involuntary production of employee statements given to the Board.
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VI. CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by issuing subpoenas to current and
former employees prior to their testimony at a Board hearing that requested their copies of
affidavits they had submitted to the Board in an unfair labor practice investigation.
4. The unfair labor practices set forth above affect commerce within the meaning of Sections
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent will be ordered to post an appropriate notice.
The General Counsel asks that the Respondent be required to mail copies of the notice
to employees since many of those affected by Respondent's unfair labor practice conduct are
not currently employed by Respondent and thus would not have access to Respondent's
premises to view a posted notice. Presumably, the General Counsel seeks notice-mailing for
former employees, as current employees may view notices posted at the Respondent’s facility.
Since the Respondent’s unlawful conduct directed toward former employees as well as current
employees can be expected to have a chilling effect on employees’ Section 7 rights, the
Respondent is ordered to mail copies of the notice herein to all former employees who were
employed by the Respondent at any time during the period of May 1, 2009 to the date of posting
of the notice.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended19
ORDER
Ampersand Publishing, LLC d/b/a Santa Barbara News-Press, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Issuing subpoenas to current and former employees prior to their testimony at a
Board hearing that request their copies of affidavits they had submitted to the Board
in an unfair labor practice investigation.
(b) In any like or related 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.

19 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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(a) Within 14 days after service by the Region, post at its facility in Santa Barbara,
California copies of the attached notice marked “Appendix.”20 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
immediately upon receipt 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 Respondent at any time since May 2009.
(b) Within 14 days after service by the Region, mail copies of the attached notice
marked “Appendix” to all former employees who were employed by the Respondent
at any time during the period of May 1, 2009 to the posting of the notice to the last
known address of said employees.
(c) 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 Respondent has taken to comply.
Dated: Washington, D.C. February 5, 2010
Lana H. Parke
Administrative Law Judge

20 If this Order is enforced by a Judgment of the 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 do anything that interferes with these rights. More particularly,
WE WILL NOT issue subpoenas to current and former employees prior to their testimony at a
National Labor Relations Board hearing that request copies of affidavits they have submitted to
the National Labor Relations Board in an unfair labor practice investigation.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights stated above.
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.
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.