Santa Barbara News-Press

National Labor Relations Board - Board Decisions

Aug 11, 2011

357 N.L.R.B. 452 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 51
452
Ampersand Publishing, LLC d/b/a Santa Barbara
News-Press and Graphics Communications Con-
ference International Brotherhood of Teamsters
and Robert Guiliano. Cases 31–CA–027950 31–
CA–027965, 31–CA–028043, 31–CA–028104, 31–
CA–028116, 31–CA–028131, 31–CA–028151, 31–
CA–028161, 31–CA–028162, and 31–CA–028157
August 11, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
At issue in this case is whether the judge correctly
found that the Respondent, a newspaper publisher, com-
mitted numerous violations of Section 8(a)(3) and (1) of
the Act after its newsroom employees initiated a union
organizing campaign.1 The Respondent also raises two
threshold matters. First, the Respondent argues that the
organizing campaign, in its entirety, was not protected by
the Act because the employees’ primary demand was to
protect their integrity as professional journalists at the
newspaper,2 a matter concerning which, the Respondent
argues, its employees had no statutorily protected inter-
est. Alternatively, the Respondent argues that the organ-
izing campaign was unprotected because it involved dis-

1 On December 26, 2007, Administrative Law Judge William G.
Kocol issued the attached decision. The Respondent filed exceptions
and a supporting brief. The General Counsel and the Charging Party
each filed cross-exceptions, a supporting brief, and an answering brief
to the Respondent’s exceptions. The Respondent filed answering briefs
to the General Counsel’s and the Charging Party’s cross-exceptions,
and reply briefs to the General Counsel’s and the Charging Party’s
answering briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge’s rulings,
findings as modified, and conclusions and to adopt the recommended
Order as modified and set forth in full below.
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
positions of the parties.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
2 We recognize that each side characterizes what was at stake in the
employees’ demands differently—the Respondent as an effort to pre-
vent it from exercising editorial control over the paper’s content in
order to prevent bias and the employees as an effort to preserve their
autonomy as journalists in order to prevent the publisher and editor
from inserting their editorial stance into coverage of the news. We
need not and do not address the question of which side’s characteriza-
tion is correct in deciding this case.
loyal conduct. Second, the Respondent argues that any
governmental intervention on the employees’ behalf will
impermissibly interfere with its First Amendment right to
control the content of its newspaper. For the reasons
explained below, we reject these threshold arguments,
and we agree with the judge’s unfair labor practice find-
ings.3
I.
The Respondent publishes a daily newspaper in Santa
Barbara, California, which has been copublished by
Wendy McCaw and Arthur von Wiesenberger since
April 2006. As discussed by the judge, employees began
to organize following a series of management decisions
in mid-20064 that led employees to believe that the new
publishers were inappropriately interfering with the work
of the employees on the news-gathering side of the pa-
per.
The first of those incidents occurred in May, when the
publishers limited coverage of the arrest and sentencing
of Travis Armstrong, the paper’s editorial page editor. A
second incident occurred in late June, when McCaw
formally reprimanded a reporter and three editors for

3 The Respondent excepts to the judge’s decision to revoke its sub-
poena duces tecum of Sam Tyler, a documentary filmmaker who filmed
interviews with current and former members of the News-Press staff.
The Respondent requested that Tyler produce all documents and re-
cordings in his possession that related to the labor dispute at the News-
Press. (At the time of the hearing, Tyler’s film had not been completed
or screened for the public.) Tyler filed a petition to revoke the subpoe-
na, arguing that the requested footage was not relevant to the Board’s
proceedings, and that compelling its production would interfere with
his First Amendment rights and his ability to produce the film. We find
no merit in this exception.
The Board affirms an evidentiary ruling of an administrative law
judge unless that ruling constitutes an abuse of discretion. 300 Exhibit
Services & Events, 356 NLRB 415, 415 fn. 1 (2010). Here, the judge’s
revocation of the subpoena was well within his discretion. Counsel for
the Respondent stated that its primary purpose in requesting the materi-
al was to potentially discover defamatory statements made by the dis-
criminatees on camera that could be presented as a basis for denying
them backpay. The Board has previously rejected similar requests.
Parts Depot, Inc., 348 NLRB 152 fn. 6 (2006) (holding that the re-
spondent was free to cross-examine claimants regarding their postem-
ployment conduct, but that the judge properly precluded it from “asking
questions which amounted to nothing more than a fishing expedition”).
In addition, even if an unlawfully-terminated employee had made de-
famatory statements to the filmmaker, that alone would not necessarily
have been a basis for denying reinstatement or backpay. See Hawaii
Tribune-Herald, 356 NLRB 661 (2011). Finally, in ruling that the
Respondent’s request was overbroad, the judge indicated that the Re-
spondent was free to narrow its request during the hearing to state more
specifically what material it required. There is nothing in the record to
indicate that the Respondent made any effort to do so. Finally, the
Respondent could have questioned the discriminatees about what they
said to Tyler and then, if necessary, renewed its request, but it did not
avail itself of this opportunity during the hearing despite the judge’s
invitation to do so.
4 All dates herein are in 2006, unless otherwise stated.
SANTA BARBARA NEWS-PRESS 453
writing an article that included the future home address
of actor Rob Lowe, a friend of McCaw’s. Employees
criticized McCaw’s decision as an abrupt, unwarranted
departure from the paper’s longstanding practice of pub-
lishing the addresses of controversial building projects as
well as the name of the owner involved. A final incident
occurred shortly thereafter when management circulated
a revised “Business Conduct” policy, placing new limits
on employees’ ability to disseminate information con-
cerning the News-Press to other media outlets. Employ-
ees objected to the new policy as a “gag order,” and at
least 15 employees, including editors, columnists, and
reporters, resigned from the paper following its issuance.
The judge found that the employees resigned to protest
what they perceived as McCaw’s and von Wiesen-
berger’s improper interference with their reporting of the
news.
Immediately following the resignations, the remaining
newsroom employees began meeting with representa-
tives of the Graphics Communications Conference, In-
ternational Brotherhood of Teamsters (the Union). Dur-
ing one of the meetings, employees drafted the following
letter, which was delivered to Travis Armstrong on July
13:

We, the newsroom employees of the Santa Barbara
News-Press, can no longer remain silent about the in-
tolerable 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 separa-
tion between the opinion/business side of the paper
and the news-gathering side.
2. Invite back the six newsroom editors who re-
cently resigned: Jerry Roberts, newsroom editor;
George Foulsham, managing editor; Don Murphy,
deputy managing editor; Jane Hulse, city editor; Mi-
chael Todd, business editor and Gerry Spratt, sports
editor.
3. Negotiate a contract with the newsroom em-
ployees governing our hours, wages, benefits and
working conditions.
4. Recognize the [Union] as our exclusive bar-
gaining representative.
We look forward to discussing these issues fur-
ther with you. Thank you.

To raise awareness of their efforts, employees staged a se-
ries of rallies outside the News-Press headquarters and in
the community during which they reiterated their demands.
On July 20, employees announced a campaign to per-
suade readers to cancel their subscriptions if the employ-
ees’ demands were not met by September 5.5 The Re-
spondent refused to recognize the Union or accede to the
employees’ other demands by that date, and the cancella-
tion campaign commenced.
In the meantime, in August, the Union had petitioned
for a representation election among the newsroom em-
ployees. The employees voted for representation and the
Union was certified as the employees’ exclusive collec-
tive-bargaining representative.6
As described below, the judge found that, from shortly
after the Union filed its petition through February 2007,
the Respondent committed numerous unfair labor prac-
tices involving employees who supported the Union.
II.
Before turning to the judge’s specific unfair labor
practice findings, we address the Respondent’s threshold
arguments: that the employees’ campaign activities were
not protected by the Act; and that the judge’s decision
(and now presumably, our own) impermissibly interferes
with the Respondent’s First Amendment rights. We find
no merit in those arguments for the following reasons.
A. The Employees’ Activities were Protected by the Act
The Respondent argues that the employees’ demands
for journalistic integrity did not implicate any statutorily
recognized term or condition of their employment, and
thus were not protected by Section 7 of the Act. It also
contends that, even assuming the employees’ activities
were initially protected, the employees lost the protection
of the Act by engaging in disloyal conduct. The Re-
spondent is incorrect for the following reasons.
Section 7 provides that employees have the right to or-
ganize, bargain collectively, and engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection. As a starting point, the Re-
spondent largely ignores the fact that, in addition to pro-
tecting their journalistic ethics, the employees here were
seeking recognition of the Union as their representative
for purposes of bargaining over wages, hours, and other
terms and conditions of employment generally. This was
a clearly protected goal.
Further, the Respondent’s changes of policy, whether
they are correctly characterized as purely editorial or not,
had a direct impact on employees’ terms of employment.
For example, the change of policy regarding the printing

5 At this point in the campaign, the group dropped its demand that
the Respondent reinstate the six newsroom editors who resigned.
Thereafter, it was not included as one of the employees’ organizing
goals.
6 On September 27, the Union won a Board-supervised election by a
vote of 33 to 6. The Board overruled the Respondent’s objections and
certified the Union as the employees’ bargaining representative in
August 2007.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 454
of addresses resulted in several employees being disci-
plined, which strongly supports a finding that employees’
“terms and conditions of employment” were at stake.
See Peerless Publications, 283 NLRB 334, 336 (1987).
And in fact the employees protested those disciplinary
actions as part of their campaign.
Finally, we reject the Respondent’s argument that the
employees’ more general demands that their journalistic
ethics not be compromised were not sufficiently tied to
their interests as employees to be protected by Section 7.
These were newsroom employees. The management
decisions at issue had and threatened to have a direct
impact on the autonomy they had enjoyed in performing
their work according to their perceptions of applicable
professional norms as well as on their actual, day-to-day
duties.
In Eastex, Inc. v. NLRB, 437 U.S. 556, 565–566
(1978), the Supreme Court held “that some concerted
activity bears a less immediate relationship to employ-
ees’ interests as employees than other such activity” and
“that at some point the relationship becomes so attenuat-
ed that an activity cannot fairly be deemed to come with-
in the ‘mutual aid or protection’ clause” of Section 7. Id.
at 567–568. Here, however, we find that the employees’
demands concerned their employment relationship and
were directly related to their interests as employees.
Mitchell Manuals, Inc., 280 NLRB 230 (1986), is per-
suasive authority on this point. In that case, editorial
employees of an automobile repair guide sent a letter to
their employer’s parent company criticizing the employ-
er’s managerial practices and demanding the creation of
a new research department that they believed would im-
prove the quality of the guide. The employees asserted
that such a department was necessary to maintain the
credibility of the company and its publications. Id. at
230–231. The employees had also asked their employer
for improved wages and benefits, but the letter did not
focus on those demands. As a result, the judge found the
letter unprotected, reasoning that it amounted to no more
than “disagreement with [the] employer over basic man-
agerial guidelines and philosophy.” Id. at 231. The
Board reversed. Although mindful of the limitations
described in Eastex, the Board reasoned that the editorial
employees’ demands related primarily to their desire to
perform their work according to appropriate professional
norms, a protected objective. Id. In that respect, moreo-
ver, the demands in the employees’ letter were “part of
and related to the ongoing labor dispute.” Id.
Here, as in Mitchell Manuals, the employees’ concerns
about journalistic integrity were connected to their inter-
ests as news-reporting employees of the Respondent.
The Respondent’s changes of policy caused employees
to question their ability to report the news in what they
viewed as a professionally appropriate manner. Various
employees testified that those decisions undermined their
integrity as journalists, making it more difficult for them
to cultivate relationships with sources and to perform
their jobs effectively.
The newsroom employees’ concerted actions were not
in protest against a change in the editorial stance of the
paper—whether to endorse the Democratic or Republi-
can candidate for mayor, for example. Rather, they were
in protest against decisions that limited the autonomy
they had previously enjoyed to report the news according
to what they believed were professional norms. Re-
strictions on their autonomy and threats to their profes-
sional ethics directly implicated their interests as em-
ployees.7
In all of these respects, we find that the employees’
campaign was sufficiently linked to their desire to organ-
ize, their terms and conditions of employment, and their
interests as employees to bring it within the ambit of Sec-
tion 7.
But, even assuming arguendo that one of the employ-
ees’ objectives was unprotected, there is no evidence to
suggest that that was the reason for the adverse actions.
In fact, the Respondent gave a range of other reasons for
the actions, all of which the judge found were pretexts.
In other words, contrary to its post hoc rationale, the Re-
spondent did not act in order to protect its editorial con-
trol. It did not warn employees that continuing to protest
their loss of autonomy might lead to adverse action and it
did not impose any of the adverse action on that ground.
See Thompson Products, 70 NLRB 13, 14–15 (1946). In
fact, the Respondent at the time claimed that the employ-
ees’ claims about the integrity of the paper were simply
designed to pressure the Respondent to grant voluntary
recognition of the Union.
Alternatively, the Respondent argues that the employ-
ees’ campaign was unprotected because some of the par-
ticipants engaged in disloyal conduct. Specifically, the
Respondent cites numerous examples of what it terms
public disparagement, including the employees’ letter to
management demanding that it restore journalistic ethics,
their customer cancellation drive, their “McCaw Obey
the Law” buttons, and their public appeals in support of
their effort to “take back” the News-Press.

7 Our conclusions that these matters were sufficiently related to em-
ployees’ terms and conditions of employment such that the employees’
concerted actions were protected under Sec. 7 does not necessarily
suggest that proposals addressing the matters would be mandatory
subjects of bargaining the employees would have a right to strike over
as discussed infra. This follows necessarily from the fact that under
Eastex, concerted activity can be for mutual aid and protection even
though its object is outside the control of the employees’ employer.
SANTA BARBARA NEWS-PRESS 455
We reject this argument. Contrary to the Respondent’s
representations in its brief, it did not even purport to dis-
cipline any of the employees for disparaging its product.
The Board has long rejected such post hoc reasoning. See
Thompson Products., supra. Further, even assuming that
some of the cited statements were disloyal, it does not
follow that the rest of the employees’ organizing cam-
paign would be rendered unprotected in its entirety. East
Texas Pulp & Paper Co., 143 NLRB 427, 446 (1963),
enfd. 346 F.2d 686 (5th Cir. 1965) (finding that employ-
ees’ previous unprotected conduct “did not render unpro-
tected and unlawful all further concerted activity on their
part”).
In any event, the record makes clear that none of the
cited statements constituted unprotected disloyalty or
disparagement. The Board has held that employees’
communications to the public may lose the Act’s protec-
tion if they are “disloyal, reckless, or maliciously un-
true.” Valley Hospital Medical Center, 351 NLRB 1250,
1252 (2007), enfd. sub nom. Nevada Service Employees
Local 1107 v. NLRB, 358 Fed. Appx. 783 (9th Cir.
2009); see also NLRB v. Electrical Workers Local 1229
(Jefferson Standard), 346 U.S. 464 (1953).8
Here, the employees’ communications may have raised
issues that the Respondent was sensitive to, but just as
certainly there was no disloyalty or disparagement of the
Respondent’s newspaper.9 Throughout the campaign,
the employees’ stated purpose was to obtain changes that
in their view would improve the journalistic quality of
the News-Press. See, e.g., Sacramento Union, 291
NLRB 540, 549 (1988), enfd. 889 F.2d 210 (9th Cir.
1989) (rejecting argument that newspaper employees’
letter to advertisers was unprotected where employees’
demands, in their view, would enhance the newspaper’s
journalistic standing).
Moreover, none of the cited statements constituted
disparagement, as they were not “flagrantly disloyal, [or]
wholly incommensurate with any grievances which the
[employees] might have.”10 All of the employees’ repre-
sentations to the public were expressly linked to the on-

8 Member Becker believes the scope of unprotected conduct defined
in Valley Hospital, supra, and Five Star Transportation Inc., infra, is
overbroad for the reasons he stated in Mastec Advanced Technologies,
357 NLRB No. 17, slip op. 9–10 (2011). Nevertheless he agrees with
his colleagues that the stated standard is not met here.
9 “The Board has traditionally been careful to distinguish between
disparagement of an employer’s product and the airing of what may be
highly sensitive issues.” Professional Porter & Window Cleaning Co.,
263 NLRB 136, 139 (1982), enfd. mem. 742 F.2d 1438 (2d Cir. 1983).
10 Five Star Transportation, Inc., 349 NLRB 42, 45 (2007), enfd.
522 F.3d 46 (1st Cir. 2008), quoting Veeder-Root Co., 237 NLRB
1175, 1177 (1978).
going labor dispute between the parties.11 In fact, the
Respondent acknowledges that during many of their ral-
lies, employees wore union paraphernalia and displayed
a large Teamsters rallying sign. And, employee state-
ments urging McCaw to obey the law were protected
given the allegations of unfair labor practices that had
been made at that time, our findings of unlawful conduct
here, and McCaw’s central role in the labor dispute.
Further, the Board has repeatedly held that boycott-
oriented communications, such as the employees’ “Can-
cel Your Newspaper Today” banner message, do not
constitute disloyalty that would result in a loss of the
Act’s protection. See Arlington Electric, Inc., 332
NLRB 845, 846 (2000); Coors Container Co., 238
NLRB 1312, 1318–1319 (1978), enfd. 628 F.2d 1283
(10th Cir. 1980).
B. The Respondent’s First Amendment Rights
are not Infringed
The Respondent argues that the employees “invoked
the Act as a regulatory means to gain control over the
content of the newspaper,” and that any governmental
endorsement or protection of that action impermissibly
interferes with its First Amendment right to publish the
news as it sees fit. In support, the Respondent urges us
to consider McDermott v. Ampersand Publishing, LLC,
593 F.3d 950 (9th Cir. 2010), in which the Ninth Circuit
cited First Amendment concerns in affirming a district
court’s denial of the Regional Director’s petition for
10(j) preliminary injunctive relief in this case.12 We find
no merit to the Respondent’s arguments.
1.
As the Respondent acknowledges, it is settled that the
Act applies to news organizations. See Associated Press

11 The dispute concerning this question as it relates to the protest on
the bridge is discussed separately below.
12 We have accepted the Respondent’s submission addressing
McDermott, which was decided after the record in this case closed,
pursuant to Reliant Energy, 339 NLRB 66 (2003). We have also ac-
cepted the Union’s response to that submission.
To the extent McDermott addresses the scope of the Respondent’s
First Amendment rights, we agree it warrants consideration here.
Nonetheless, in our disposition of this case on the merits, we are not
bound by the court’s decision on the 10(j) injunction issue. See Coro-
net Foods, Inc. v. NLRB, 981 F.2d 1284, 1288 (D.C. Cir. 1993) (reject-
ing the argument that “a district court finding in a section 10(j) auxilia-
ry proceeding would later bind the NLRB when ruling, definitively, on
the unfair labor practice charge”); see also Dorsey Trailers, Inc. North-
umberland, PA Plant, 327 NLRB 835 fn. 2 (1999), enfd. in part 233
F.3d 831 (4th Cir. 2000). The court ruled on the propriety of the relief
sought by the Regional Director in the district court, not the relief we
grant here. Moreover, the court ruled on a request for interim, injunc-
tive relief, not a final order of the Board. Finally, the court reviewed
the district court’s denial of the requested relief under an abuse of dis-
cretion standard. 593 F.2d at 957.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 456
v. NLRB, 301 U.S. 103 (1937). In Associated Press, the
Supreme Court rejected the argument that applying the
Act to news organizations abridged the freedom of
speech or of the press safeguarded by the First Amend-
ment. There, as here, the press employer argued that
ordering it to reinstate fired editorial employees would
infringe its First Amendment rights. The Court rejected
this argument, observing that the press employer re-
mained free to hire employees who would observe its
editorial decisions and to fire those who refused to do so.
Id. at 132. The same is true under our Order. The Court
held that “[t]he publisher of a newspaper has no special
immunity from the application of general laws. He has
no special privilege to invade the rights and liberties of
others.” Id. at 132–133.13 Yet at bottom, a special privi-
lege is exactly what the Respondent seeks here.
The judge found that the Respondent engaged in an ex-
tensive campaign of retaliatory conduct against employ-
ees because they exercised their rights to seek union rep-
resentation and to join together for their mutual aid or
protection. Our Order remedies that unlawful conduct.
It does so, moreover, in a manner explicitly approved by
the Supreme Court in Associated Press, through a cease-
and-desist order, reinstatement, and other make-whole
relief. To be sure, the employees demanded, among oth-
er things, that the Respondent refrain from interfering
with their autonomy in reporting the news. But nothing
in our decision or Order requires the Respondent to grant
that demand, or otherwise interferes with the Respond-
ent’s First Amendment right to control the content of its
newspaper or its authority to terminate or otherwise dis-
cipline any employee who refuses to carry out is instruc-
tions concerning the contents of the paper. As before,
those editorial matters remain wholly within the Re-
spondent’s control.
2.
Contrary to the Respondent’s suggestion, that conclu-
sion is not undercut by the Ninth Circuit’s decision in the
preliminary injunction proceeding. The court expressly
did not decide whether the First Amendment protected,
or even probably protected, the Respondent’s conduct.
593 F.3d at 959. Rather, the court found only that there
was “at least some risk” that constitutionally protected
speech would be enjoined, warranting application of a
“heightened” standard for equitable relief. Id. The court
denied the requested injunction under that heightened

13 The D.C. Circuit similarly did not question the Board’s order that
a newspaper “restore [a columnist] to his former position as a weekly
columnist” in Passaic Daily News v. NLRB, 736 F.2d 1543, 1549 (D.C.
Cir. 1984), refusing to enforce only that portion of the Board’s order
that limited the paper’s discretion over whether to publish his columns
post-reinstatement. See id. at 1559.
standard. We share the court’s concern that First
Amendment rights be safeguarded from government in-
terference, but we do not find any risk of interference
with First Amendment rights in the present case suffi-
cient to implicate our duty to construe the Act, when
possible, to avoid raising “serious questions” of constitu-
tionality. See Edward J. DeBartolo Corp. v. Florida
Gulf Coast Building Trades Council, 485 U.S. 568, 575
(1988).
Of particular concern to the court was the employees’
demand that the Respondent respect their journalistic
integrity and autonomy in reporting the news, coupled
with their use of economic pressure to support that de-
mand; e.g., urging readers to cancel their subscriptions.
593 F.3d at 961. The court concluded that governmental
intervention to support the employees would effectively
hinder the Respondent’s ability to resist the employees’
efforts, necessarily posing some risks to the Respond-
ent’s First Amendment rights. Id. at 962. In the court’s
view, those risks arise both with the potential reinstate-
ment of discharged employees and also at the bargaining
table. We address each of those issues in turn.
Before addressing the Ninth Circuit’s specific con-
cerns, however, we point out the entirely novel nature of
the Respondent’s contention. The First Amendment, of
course, is implicated only by state action. Here, the only
state action, our Order, in no way interferes with the Re-
spondent’s expressive activity, as the Supreme Court
concluded in Associated Press. Thus, this case is entire-
ly unlike the prior Ninth Circuit case relied on by that
Court in the preliminary injunction proceeding here,
Overstreet v. Carpenters, 409 F.3d 1199 (9th Cir. 2005),
in which the Board sought unsuccessfully to enjoin the
peaceful display of stationary banners under Section
8(b)(4) of the Act. For the same reason, this case is also
entirely unlike the other cases cited by the Ninth Circuit,
all of which involved newspapers being compelled by the
State to publish specific content. In Miami Herald Pub-
lishing Co. v. Tornillo, 418 U.S. 241 (1974), the Su-
preme Court struck down a state statute granting a politi-
cal candidate a right to equal space to reply to criticism
and attacks on his record by a newspaper. In Passaic
Daily News v. NLRB, supra, the D.C. Circuit refused to
enforce a Board order requiring the newspaper to resume
publication of a reinstated columnist’s weekly column.
No such State compulsion is at issue here.
In explaining the potential First Amendment ramifica-
tions of requiring the Respondent to reinstate unlawfully
discharged employees, the Ninth Circuit reasoned that

telling the newspaper that it must hire specified per-
sons, namely the discharged employees, as editors and
SANTA BARBARA NEWS-PRESS 457
reporters constituting over 20 percent of its newsroom
staff is bound to affect what gets published. To the ex-
tent the publisher’s choice of writers affects the expres-
sive content of its newspaper, the First Amendment
protects that choice.

McDermott, supra at 962–963. The court’s concern has
already been addressed, however. As the Supreme Court
explained in Associated Press:

[t]he Act does not compel the petitioner to employ an-
yone; it does not require that the petitioner retain in its
employ an incompetent editor or one who fails faithful-
ly to edit the news to reflect the facts without bias or
prejudice. The Act permits a discharge for any reason
other than union activity or agitation for collective bar-
gaining with employees.

Associated Press v. NLRB, supra, 301 U.S. at 132. This
principle cannot depend on whether a newspaper employer
unlawfully fires 20 percent of its employees instead of one.
In either case, merely ordering the employees to be reinstat-
ed is not “bound to effect what gets published.” The Re-
spondent remains free to continue publishing its newspaper
as it sees fit and to insist that employees, including those
who may be reinstated, conform to its editorial decisions
and standards.14 As before, the Respondent is precluded
only from discriminating against employees because they
engage in activities protected by the Act. If reinstated dis-
criminatees refuse to implement Respondent’s editorial
policies, the Respondent may lawfully discipline or dis-
charge them as it sees fit.
Similarly, we are not persuaded that the court’s bar-
gaining-related concerns warrant granting immunity for
what would be unlawful conduct in any other industry.
Nothing in the judge’s decision or recommended Order
or the Order we issue today requires the Respondent to
grant the employees’ demand for greater autonomy in
reporting the news. Rather, consistent with our remedial
authority, we seek only “to restore, so far as possible, the
status quo that would have been obtained but for the
wrongful act.” Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 194 (1941). Our decision does not suggest in any
manner that the decisions that triggered the employees’
organizing the protest activities were wrongful. Thus,
our Order leaves all of the Respondent’s policies and

14 As stated above, the remedies ordered here do not require the Re-
spondent to publish any material, nor do they interfere with the Re-
spondent’s editorial discretion. This issue might have arisen had the
judge ordered the reinstatement of Starshine Roshell’s unlawfully-
canceled column, but the General Counsel did not request such relief,
as Roshell subsequently resigned from the newspaper.
procedures related to the contents, editorial approval and
publication of articles fully intact.
Moreover, although we have found that the employ-
ees’ demands were protected, whether the Respondent
would be legally required to bargain over those demands
is another issue and one not before us in this case. Gen-
erally, an employer is not required to bargain about the
contents or design of its product. Kiro, Inc., 317 NLRB
1325, 1327 (1995). Specifically in the newspaper indus-
try, the Board has held that a newspaper publisher “is
free to establish reasonable rules designed to prevent its
employees from engaging in activity which would ‘di-
rectly compromise their standing as responsible journal-
ists and that of the publication for which they work as a
medium of integrity,’ without necessarily being required
to bargain initially.” Peerless Publications, supra, 283
NLRB at 335.15 If the represented employees choose,
during bargaining, to make proposals relating to the con-
cerns that, in part, motivated the protests at issue here,
the proposals may relate only to permissive bargaining
subjects.16 In that event, it would be left to the Respond-
ent’s discretion whether to bargain over the proposals.17
Even assuming, however, that one or more of the em-
ployees’ proposals would constitute a mandatory subject
of bargaining, the Act makes clear that the Respondent
would not be obliged to agree to any of those proposals
or make any concessions. See Section 8(d) of the Act.
Thus, the Respondent’s contention that the judge’s deci-
sion rejected Respondent’s position that “the Act does
not provide employees with a statutory right to control
the content of the newspaper” is pure hyperbole.

15 There, the Board found that the employer’s unilateral promulga-
tion of a new ethics policy violated the Act, in part, because the terms
of the policy were overly broad and not narrowly tailored to meet the
respondent’s legitimate objectives. Id. at 336.
16 The D.C. Circuit has indicated that this “agency possesses the req-
uisite special expertise for making specific determinations in this highly
delicate field which encompasses both labor relations and the workings
of the press, and its detailed factual findings are likely to illuminate the
framework of mere general principles.” Newspaper Guild of Greater
Philadelphia Local 10 v. NLRB, 636 F.2d 550, 563 (D.C. Cir. 1980).
17 We find it unnecessary to rely on the judge’s analysis of “whether
there is room for collective bargaining on the issue of journalistic integ-
rity under current law” or his discussion of Peerless Publications, su-
pra.
Nevertheless, we emphasize that a union’s making of proposals re-
lating to that subject or seeking to bargain over them, without more,
would not be unprotected. NLRB v. Borg-Warner Corp., 356 U.S. 342,
349 (1958). “Even if it be assumed that that choice would finally be a
matter for management to determine, the fact remains that the guaranty
of Section 7 of the Act extends not only to concerted activities for the
purposes of collective bargaining, but also to those undertaken for
‘other mutual aid or protection.’” Phoenix Mutual Life Insurance Co.,
73 NLRB 1463, 1465 (1947), enfd. 167 F.2d 983 (7th Cir. 1948). In
other words, nothing we have said here is inconsistent with our holding
above that the employees’ actions were protected.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 458
Still, we are mindful of the Ninth Circuit’s concern
that the Respondent nevertheless might be “forced” to
accede to its employees’ demands as a result of economic
pressure. But the Respondent will not be without re-
course if faced with such pressures. If a union insists to
impasse on permissive subjects of bargaining, it commits
an unfair labor practice. See Taft Broadcasting Co., 274
NLRB 260, 261 (1985). If employees strike to pressure
their employer to agree about permissive subjects of bar-
gaining, the strike may be unprotected by the Act. Cf.
Nassau Insurance Co., 280 NLRB 878 fn. 3 (1986).
But the fact is that none of those issues is before us in
this case. We are in effect being asked to preemptively
withhold relief from employees who are otherwise clear-
ly entitled to it based solely on what may come to pass in
the future. In Associated Press, the Supreme Court ob-
served that the employer sought “to bar all regulation by
contending that regulation in a situation not presented
would be invalid.” 301 U.S. at 132. The Court rejected
the speculative argument, explaining that “[c]ourts deal
with cases upon the basis of the facts disclosed, never
with nonexistent and assumed circumstances.” Id. The
same is true of the Board. Accepting the Respondent’s
argument here would seriously undermine the established
principle that the Respondent “has no special privilege to
invade the rights and liberties of others.” Id. at 132–133.
Because the Respondent’s First Amendment argument is
entirely novel and based on a chain of speculation about
what might happen in the future, we conclude that our
order in this case raises no “serious questions” under the
First Amendment.
III. THE RESPONDENT’S UNFAIR LABOR PRACTICES
Having addressed the Respondent’s threshold argu-
ments, we turn now to the specific unfair labor practices
found by the judge.18
A.
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) by coercively interrogating em-
ployees concerning union activities, engaging in surveil-
lance of union activities,19 requiring employees to re-

18 The Respondent does not except to the judge’s finding that it vio-
lated Sec. 8(a)(1) by threatening employees with discipline if they
engaged in protected concerted activity or by interrogating employees
about their protest on a footbridge, as discussed below.
19 We agree with the judge that the Respondent violated Sec. 8(a)(1)
on February 7 and 21, 2007, by appearing to film employees during
prounion rallies. We find it unnecessary to pass on the General Coun-
sel’s separate surveillance allegation involving the Union’s meeting at a
public library on February 13. Even if found, that violation would be
cumulative of the other surveillance violations and would not affect the
remedy.
Contrary to his colleagues, Member Becker would find that the Re-
spondent violated Sec. 8(a)(1) when its agents attended and refused to
move buttons and signs reading “McCaw Obey the
Law,” and terminating Supervisor Robert Guiliano be-
cause he refused to commit an unfair labor practice.20
We also agree with the judge that the Respondent vio-
lated Section 8(a)(3) and (1) by cancelling Starshine
Roshell’s column;21 discharging Melinda Burns and An-
na Davison, ostensibly for biased reporting;22 and lower-

leave the Union’s meeting at a public library on February 13. As set
forth by the judge, union representatives rented a room at the library to
meet with local advertisers in the hope of getting their support for the
ongoing campaign. Shortly after the meeting began, the Respondent’s
lawyer and accountant entered the room. When asked to leave by the
union representatives, they refused to do so.
Member Becker agrees with the judge that the Respondent engaged
in unlawful surveillance when its agents appeared, without invitation, at
the Union’s private meeting, and then refused to leave. See Hollywood
Vassarette, Division of Munsingwear, Inc., 149 NLRB 839, 845–847
(1964) (finding that the employer violated the Act by appearing at a
private union meeting at a restaurant). Even assuming that the library
maintained a policy requiring all meetings there to be open to the pub-
lic, the Union had a federal right to meet privately and to be free from
Respondent’s interference. Accordingly, any such rule would be irrele-
vant to whether a violation of the Act occurred.
20 No party excepts to the judge’s decision to deny Robert Guiliano
reinstatement and toll his backpay as of March 26, 2007.
21 We do not rely on the Respondent’s incipient antiunion campaign
in adopting the judge’s finding that the Respondent bore animus toward
Roshell’s union activity.
22 With respect to the unlawful discharges found by the judge, we re-
ject the Respondent’s argument that the burden-shifting analysis in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), should be modified because of
First Amendment concerns. The Respondent argues that the General
Counsel should have been required to prove that the Respondent would
not have taken the same actions in the absence of the employees’ pro-
tected activity. As discussed, the Respondent’s First Amendment con-
cerns do not justify affording it special treatment. See, e.g., Passaic
Daily News v. NLRB, 736 F.2d 1543 (D.C. Cir. 1984) (applying Wright
Line where the respondent was a newspaper). In any event, the Re-
spondent has provided no case support for its proposal. Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986), the primary case
relied on by the Respondent, involved the burden of proving truth or
falsity in a libel case, and the policy considerations discussed by the
court are not present in the unfair labor practice context.
With regard to the judge’s analysis of Burns’ discharge, we do not
rely on his statements regarding the quality of Burns’ writing, including
his conclusion that the Respondent failed to show any shortcomings in
Burns’ “Axis of Inequality” article, his statement that the Respondent
was arguing that Burns’ “Danger Zones” article was biased because
City Editor Scott Steepleton said it was, and his statement that the
Respondent “may not use unsupported assertions as a pretext to mask
unlawful conduct.” These statements create the appearance that the
judge improperly imposed his own judgment as to what constitutes
biased reporting.
In finding Burns’ discharge unlawful, we rely instead on the strong
circumstantial evidence supporting the judge’s finding that the Re-
spondent’s proffered rationale for Burns’ discharge was pretextual. In
particular, we rely on the judge’s finding that other instances of per-
ceived biased reporting did not result in discipline of any kind, much
less termination. The Respondent’s discharge of Burns was thus highly
atypical. See La Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002),
enfd. 71 Fed. Appx. 441 (5th Cir. 2003). In addition, the Respondent
SANTA BARBARA NEWS-PRESS 459
ing the evaluation scores of union supporters Davison,
Dawn Hobbs, Melissa Evans, and Karna Hughes.
B.
Further, we agree with the judge’s finding that the Re-
spondent violated Section 8(a)(3) and (1) by discharging
six union activists who demonstrated on a footbridge to
protest the Respondent’s unlawful discharges of Burns
and Davison. In addition to the reasons given by the
judge, we add the following rationale, much of which
concerns the Respondent’s defenses.
The events surrounding the footbridge protest can be
summed up as follows. On February 5, 2007, employees
Dawn Hobbs, Rob Kuznia, Barney McManigal, Tom
Schultz, John Zant, and Melissa Evans stood atop a foot-
bridge over Highway 101 and held two large banners
reading “Cancel Your Newspaper Today.”23 They also
displayed two signs reading “Stop Illegal Firings” and
various smaller signs reading “Bring Back Melinda
[Burns],” “Bring Back Ann[a Davison],” and “Protect
Free Speech.” As indicated, the Respondent discharged
the employees for this protest, and the judge found those
discharges unlawful.
In its exceptions, the Respondent contends that the
employees’ actions were unprotected for two reasons: (1)
the employees’ activity was disloyal; and (2) their activi-
ty was illegal. We reject those contentions.
1.
The Respondent, citing George A. Hormel & Co. v.
NLRB, 962 F.2d 1061 (D.C. Cir. 1992), contends that the
employees’ protest was disloyal because it was not ex-
plicitly related to the parties’ ongoing labor dispute. Spe-
cifically, it argues that passing motorists would not have
understood that the boycott banner was linked to the la-
bor dispute because they would not have been able to see
the smaller supporting signs that referred to the dispute.
We disagree.

offered shifting reasons for Burns’ discharge. During the hearing, it
relied in part on factual errors in Burns’ articles, whereas previous
disciplinary communications to Burns focused solely on concerns about
bias. See U.S. Coachworks, Inc., 334 NLRB 955, 957 (2001), enfd. 53
Fed. Appx. 171 (2d Cir. 2002). Finally, notwithstanding McCaw’s
longstanding concerns about bias in Burns’ articles, the Respondent did
not take any disciplinary action against Burns until she became in-
volved in union activity. Despite its argument that Burns’ bias had
been improperly tolerated by previous managers, the very article that
purportedly triggered Burns’ discharge had been approved by Steeple-
ton, who was installed only months earlier by McCaw.
23 We find no merit in the Respondent’s argument that the judge im-
properly precluded its expert witness, Dr. Ralph Haber, from testifying
that passing motorists would have seen only the “Cancel Your News-
paper Today” banners. Even if that were true, the banners’ message
was not unprotected, as explained below. Accordingly, the Respondent
was not prejudiced by the judge’s ruling.
By any measure, the employees’ footbridge protest
was clearly linked to their ongoing dispute with the Re-
spondent. The linkage was obvious with respect to the
signs seeking Davison’s and Burns’ reinstatement, which
were accompanied by signs protesting illegal firings.
See Richboro Community Mental Health Council, Inc.,
242 NLRB 1267, 1268 (1979) (finding a letter to be
linked to ongoing labor dispute where it protested the
employer’s unlawful discharge of an employee). Indeed,
the Respondent concedes that the protest was motivated
by its recent termination of employees.
Assuming that motorists could see the smaller signs
addressing the labor dispute, the activity was clearly not
unprotected disloyalty, as seeking a consumer boycott in
support of employees’ position in a labor dispute is pro-
tected. Arlington Electric., supra; Coors Container Co.,
supra. Even if motorists could not see the smaller signs,
if motorists nonetheless understood that the banners were
directed at the Respondent, it is more likely than not that
that was because of the parties’ well-publicized conflict
and that they would thus have also understood the ban-
ners and signs saying “Cancel Your Newspaper” and
“Protect Free Speech” as being related to a labor dispute.
See Endicott Interconnect, 345 NLRB 448, 450 (2005),
enf. denied on other grounds 453 F.3d 532 (D.C. Cir.
2006). The employees’ dispute with the Respondent,
over journalistic integrity, union recognition, and other
matters, had been matters of public discussion for several
months. Indeed, it had been reported on extensively by
area news outlets, including the News-Press, well before
this particular protest. See Endicott, supra at 451 (find-
ing communication to be linked to ongoing labor dispute
where prior events were “widely publicized in the local
media”). Thus, although neither of the large banners
identified the Respondent, it is likely that anyone who
understood that the “Newspaper” referred to was the Re-
spondent’s also understood that the banners were part of
the labor dispute. For those reasons, we find that the
footbridge protest was, and would have been seen as,
“simply part and parcel, and a continuation, of [the]
long-running labor dispute” between the parties and did
not constitute unprotected disloyalty. St. Luke’s Episco-
pal-Presbyterian Hospitals, 331 NLRB 761 (2000), enf.
denied on other grounds 268 F.3d 575 (8th Cir. 2001).
Even accepting the Respondent’s argument that pass-
ing motorists could not see the smaller signs and assum-
ing they would not nevertheless have understood that the
banners were part of the ongoing labor dispute for the
reasons explained above, we still find that the protest did
not constitute unprotected disloyalty. If motorists could
not see the smaller signs, they may not even have known
what newspaper they were being asked to cancel as there
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 460
were at least two other local newspapers. Moreover,
Interstate 101 is the major highway running up the Cali-
fornia coast and the protest could easily have been un-
derstood to be directed at papers in other cities, for ex-
ample, the Los Angeles Times. The Respondent was ob-
viously not disparaged in the eyes of those drivers who
did not know and could not discern the protestors’ in-
tended target. Contrary to the Respondent, neither the
Board nor the D.C. Circuit has ever required that a boy-
cott protest explicitly refer to the labor dispute in order to
be protected. In Hormel, the court found an employee’s
boycott message to be unprotected not because it was
insufficiently linked to the underlying labor dispute, but
because that labor dispute had already ended.24 Five Star
Transportation, also cited by the Respondent, involved
employees’ disparaging remarks about the employer’s
operations rather than a call for a boycott.25 Accordingly,
we find that the Respondent’s argument here lacks merit.
Finally, as discussed above, we also reject the Re-
spondent’s argument that the employees’ protest dispar-
aged the Respondent’s product. The Board has repeated-
ly held that boycott-communications, such as the em-
ployees’ “Cancel Your Newspaper Today” banner mes-
sage, do not constitute disloyalty that would result in a
loss of the Act’s protection. See Arlington Electric, Inc.,
supra; Coors Container Co., supra. Moreover, the small-
er banners referred to the parties’ labor dispute and not
the quality of the Respondent’s product. In the context of
the protest, the “Protect Free Speech” sign would have
been understood to refer to the free speech of employees.
Even if it was not, that message, standing alone, did not
disparage the Respondent’s product.26
2.
Last, we find no merit to the Respondent’s argument
that the employees lost the protection of the Act because
the footbridge protest was illegal. As correctly set forth
by the judge, employee Hobbs contacted the police de-
partment prior to the protest and was told by a sergeant
that the group would not be violating the law by holding
banners on the footbridge. Thus, regardless of whether
the employees’ conduct actually violated local law, they
acted in accordance with the advice of local authorities.
Further, the employees were not cited for or convicted of
any criminal offense. See McKee Electric Co., 349
NLRB 463, 465 fn. 13 (2007). In addition, contrary to
the Respondent, the mere fact that an otherwise peaceful
concerted action might be illegal under local law does

24 962 F.2d at 1064.
25 349 NLRB at 45–46.
26 The Respondent does not argue that the employees’ communica-
tions were either reckless or maliciously untrue.
not necessarily remove it from the Act’s protection. See
Washington State Service Employees, 188 NLRB 957,
958–959 (1971).27
AMENDED REMEDY
We agree with the judge that a broad cease-and-desist
order is warranted because the Respondent “has engaged
in such egregious or widespread misconduct as to
demonstrate a general disregard for the employees’ fun-
damental statutory rights.” Hickmott Foods, 242 NLRB
1357 (1979).28 We also agree with the judge’s other rec-
ommended remedies, except as set forth below.29
Contrary to the judge, we order the Respondent to
have the attached notice publicly read by a responsible
corporate management official or by a Board agent in the
presence of a responsible management official. We find
that the Respondent’s unfair labor practices are suffi-
ciently serious and widespread to warrant having the
attached notice read aloud to the employees so that they
“will fully perceive that the Respondent and its managers
are bound by the requirements of the Act.” Federated
Logistics & Operations, 340 NLRB 255, 258 (2003),
enfd. 400 F.3d 920, 929–930 (D.C. Cir. 2005). The pub-
lic reading of the notice is an—“effective but moderate
way to let in a warming wind of information and, more
important, reassurance.” United States Service Industries,
319 NLRB 231, 232 (1995) (citations omitted), enfd. 107
F.3d 923 (D.C. Cir. 1997). In order to monitor the read-
ing of the notice, representatives of the Board and of the
Union shall have the right to be present. Texas Super
Foods, 303 NLRB 209, 220 (1991).
The judge found that discriminatees Davison, Hobbs,
Evans, and Hughes, who were unlawfully evaluated,

27 We also reject the Respondent’s argument that it would have dis-
charged the employees for such conduct even in the absence of their
protected activity. The judge found that the Respondent’s decision to
terminate the employees was motivated solely by its belief they had
engaged in disloyal conduct. Further, the Respondent failed to estab-
lish that hanging a banner on a footbridge would have normally been a
dischargeable offense even assuming it was unlawful. To the contrary,
Steepleton testified that whether an employee would ordinarily be
discharged for similar conduct depended solely on the content of the
signs being displayed. The Respondent’s decision to terminate these
employees was inseparable from its overriding objection to the em-
ployees’ protected message.
28 In this regard, however, we do not rely on the judge’s statement
that the Respondent’s position on the journalistic integrity issue “re-
veal[ed] concerns” about whether the Respondent would be inclined to
violate Sec. 8(a)(5) in the future.
29 In sec. 1(h) of his remedial order, the judge ordered that the Re-
spondent cease and desist from “[c]anceling the publication of columns
appearing in the newspaper that are written by supporters of the Un-
ion.” We have added the phrase “because they engaged in protected
concerted activity” at the end of that section in order to clarify that the
Respondent is only prohibited from canceling columns in retaliation for
protected conduct. See Herald News, 276 NLRB 605, 605 fn. 6 (1985).
SANTA BARBARA NEWS-PRESS 461
should be awarded performance bonus payments for
2006 consistent with prior years. We think this finding
was premature. Because the Respondent requires em-
ployees to achieve at least a specific evaluation score in
order to qualify for a bonus, the discriminatees’ eligibil-
ity should be contingent on the outcome of their non-
discriminatory evaluations. We conclude that the correct
remedy is to order the Respondent to make the discrimi-
natees whole by paying them what they would have been
paid absent the discrimination against them. According-
ly, the issue of whether the discriminatees should receive
bonuses and, if so, the specific dollar amount of the bo-
nuses, will be left to the compliance proceeding. Federal
Screw Works, 310 NLRB 1131 fn. 3 (1993).
Finally, in accordance with our decision in Kentucky
River Medical Center, 356 NLRB 6 (2010), we shall
modify the judge’s recommended remedy by requiring
that backpay and other monetary awards shall be paid
with interest compounded on a daily basis. We shall also
modify the judge’s recommended Order to provide for
the posting of the notice in accord with J. Picini Floor-
ing, 356 NLRB 11 (2010).
ORDER
The National Labor Relations Board orders that the
Respondent, Ampersand Publishing, LLC, d/b/a Santa
Barbara News-Press, Santa Barbara, California, its offic-
ers, 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 Graphics Communica-
tions Conference, International Brotherhood of Team-
sters, or any other union.
(h) Canceling the publication of columns appearing in
the newspaper that are written by supporters of the Union
because they engaged in protected concerted activity.
(i) Giving lower evaluations to employees because
they engaged in union activities.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed 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 equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Within 14 days from the date of this Order, rescind
the discriminatory evaluations given to Anna Davision,
Dawn Hobbs, Melissa Evans, and Karna Hughes.
(c) Prepare new evaluations for Anna Davison, Dawn
Hobbs, Melissa Evans, and Karna Hughes without regard
to those employees’ support for the Union.
(d) Within 14 days from the date of this Order, rescind
the letters of suspension issued to Al Bonowitz, Kim
Favors, Karna Hughes, Rob Kuznia, Lara Milton, Mike
Traphagen, Dawn Hobbs, George Hutti, Barney
McManigal, Tom Schultz, and Alan McCabe.
(e) Within 14 days from the date of this 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.
(f) Make Melinda Burns, Anna Davison, Dawn Hobbs,
Rob Kuznia, Barney McManigal, Tom Schultz, John
Zant, 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 amended remedy section of this
decision.
(g) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Santa Barbara, California, copies of the
attached notice marked “Appendix.”30 Copies of the no-

30 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 462
tice, on forms provided by the Regional Director for Re-
gion 31, after being signed by the Respondent’s author-
ized 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. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent 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 cur-
rent employees and former employees employed by the
Respondent at any time since August 17, 2006.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER HAYES, concurring.
Although I join my colleagues in finding that the Re-
spondent committed numerous unfair labor practices,1 I
write separately to emphasize the limited grounds for my
agreement on certain key issues.
First, I do not join my colleagues’ unnecessary dictum
with respect to whether employee protests about journal-
istic integrity or autonomy are protected concerted activi-
ty, as defined by the Supreme Court in Eastex, Inc. v.
NLRB, 437 U.S. 556, 565–566 (1978). For the purpose
of resolving the issues presented in this case, it is enough
to find that (a) the Respondent’s employees were other-
wise engaged in clearly protected concerted activities by
seeking representation by the Union and a collective-
bargaining agreement, and by protesting the discharges
of coworkers, and (b) the Respondent failed to show that
it would have taken any of the adverse employment ac-
tions at issue because of employee protests about journal-
istic integrity or autonomy even in the absence of their
clearly protected activities.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 Although I join in finding these violations, I would not impose the
extraordinary requirement of a public reading to remedy them. In
addition, for the reasons stated in my dissenting opinion in J. Picini
Flooring, 356 NLRB 11 (2010), I would not require electronic distribu-
tion of the notice.
With respect to the Respondent’s First Amendment ar-
guments, I find no need to say more than that the Su-
preme Court’s decision in Associated Press v. NLRB, 301
U.S. 103 (1937), controls and that the State action at is-
sue—a Board Order to remedy specific, fully litigated
unfair labor practices, including discriminatory discharg-
es—does not raise serious questions under the First
Amendment. In particular, the Order imposes no prior
restraint on the Respondent’s free speech and no limita-
tion on its ability to set its own editorial agenda and to
discharge any employee for failing to follow its instruc-
tions with respect to the content of its newspaper.
Finally, although I find it to be a close question, I
agree that the Respondent’s discharge of the six employ-
ees who engaged in the footbridge protest was unlawful.
Clearly, the protesters acted concertedly in furtherance of
a labor dispute related to the firing of coworkers. They
displayed small signs explicitly referring to this dispute
(“Stop Illegal Firings,” “Bring Back Melinda,” and
“Bring Back Ann”). They also displayed two large signs
advocating a consumer boycott of an unnamed newspa-
per (“Cancel Your Newspaper Today”) as well as anoth-
er small sign (“Protect Free Speech”), none of which
made any reference to a labor dispute. The question is
whether this concerted activity was protected.2
Based on the Supreme Court’s decision in NLRB v.
Electrical Workers Local 1229 (Jefferson Standard), 346
U.S. 464 (1953), the Board has held that “employee
communications to third parties in an effort to obtain
their support are protected where the communication
indicated it is related to an ongoing dispute between the
employees and the employers and the communication is
not so disloyal, reckless or maliciously untrue as to lose
the Act’s protection.” Mountain Shadows Golf Resort,
330 NLRB 1238 (2000). As to the first prong of this test,
if construed as requiring that each sign displayed by the
footbridge protesters must be independently identifiable
as related to an ongoing labor dispute, then the conduct
would seemingly not be protected. However, I believe it
is sufficient to find as an objective matter that members
of the intended consumer audience would reasonably
perceive the relationship of the protest to an ongoing
labor dispute about firings from the collective message
conveyed by the signs on their face. I would not go be-
yond that to speculate about how general notoriety of

2 I agree with my colleagues’ rejection of the Respondent’s argu-
ment that the protest was unlawful because it was allegedly illegal.
However, I do so based solely on the fact that the protesters relied in
apparent good faith on advance advice from police that the group
would not be violating the law by displaying banners on the footbridge.
The mere fact that the protesters were not arrested is not determinative
of the legality of their actions.
SANTA BARBARA NEWS-PRESS 463
fractious labor relations at the Santa Barbara News-Press
might have informed the understanding of someone
viewing this particular protest. I also need not pass on
whether the protest would have been protected if none of
the displayed signs indicated the existence of a labor
dispute.3
As to the second prong of the test, I agree with my col-
leagues that none of the banners conveyed messages that
the Board has traditionally viewed as disloyal. I note
that dictum in Jefferson Standard could be interpreted as
indicating that it is per se disloyal and unprotected for
employees to engage in promotion of a consumer boycott
of their employer while receiving pay to work for that
employer, even if the boycott communications are ex-
pressly related to an ongoing labor dispute.4 However,
the Board and several courts of appeals have rejected that
broad interpretation,5 and the Respondent here does not
seek the overruling of precedent in arguing that the em-
ployees’ conduct was disloyal.
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 vio-
lated 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 bene-
fit and protection

3 Contrary to the Respondent, it was not necessary that the signs re-
fer to the Union in order to establish the existence of a labor dispute
with respect to the firings. Further, even assuming relevance of the
rejected testimony of an expert witness about conclusions drawn from a
post hoc study of the footbridge protest, I am not persuaded that such
testimony would alone be sufficient to prove that occupants in motor
vehicles could only see the two large signs that made no reference to
the firings.
4 In Jefferson Standard, supra at 476 fn. 12, the Court cited with ap-
proval Hoover Co. v. NLRB, 191 F.2d 380, 390 (6th Cir. 1951), which
stated there that
It is a wrong done to the Company for employees, while being em-
ployed and paid wages by a company, to engage in a boycott to pre-
vent others from purchasing what their employer is engaged in selling
and which is the very thing their employer is paying them to produce.
An employer is not required. under the Act, to finance a boycott
against himself.
5 See, e.g., Coors Container Co., 238 NLRB 1312, 1318–1319
(1978), enfd. 628 F.2d 1283, 1287 (10th Cir. 1980). Also see George
A. Hormel & Co. v. NLRB, 962 F.2d 1061, 1064 (D.C. Cir. 1992).
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 interrogate employees con-
cerning 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 be-
cause they refuse to commit an unfair labor practice.
WE WILL NOT engage in surveillance of the union ac-
tivities of employees.
WE WILL NOT cancel the publication of columns ap-
pearing in our newspaper that are written by supporters
of the Graphics Communications Conference, Interna-
tional Brotherhood of Teamsters, or any other union,
because they engaged in protected concerted activity.
WE WILL NOT give lower evaluations to employees be-
cause they engaged in union activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Graphics Commu-
nications Conference, International Brotherhood of
Teamsters, or any other union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their rights
listed above.
WE WILL, 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 substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the discriminatory evaluations given to
Anna Davison, Dawn Hobbs, Melissa Evans, and Karna
Hughes and the letters of suspension issued to Al Bono-
witz, Kim Favors, Karna Hughes, Rob Kuznia, Lara Mil-
ton, Mike Traphagen, Dawn Hobbs, George Hutti, Bar-
ney McManigal, Tom Schultz, and Alan McCabe.
WE WILL prepare new evaluations for Anna Davison,
Dawn Hobbs, Melissa Evans, and Karna Hughes 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, Karna Hughes, and Robert
Guiliano whole for any loss of earnings and other bene-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 464
fits resulting from the discrimination against them, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Melinda Burns, Anna Davison, Robert
Guiliano, Dawn Hobbs, Rob Kuznia, Barney McMani-
gal, 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 McCabe; 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

Steven Wyllie and Brian D. Gee, Esqs., for the General Coun-
sel.
A. Barry Cappello, Esq., Matthew M. Clarke, Esq., and Dugan
P. Kelley, Esq. (Cappello & Noel, LLP), of Santa Barbara,
California, and L. Michael Zinzer, Esq. (The Zinzer Law
Firm), of Nashville, Tennessee, for the News-Press.
Ira L. Gottlieb, Esq. (Bush, Quinonez, Gottlieb, Singer, Lopez,
Kohanski, Adelstein & Dickenson), of Burbank, California,
for the Union.
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 (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 (the complaint) issued on May
31, 2007. The complaint alleges that Ampersand Publishing,
LLC d/b/a Santa Barbara News-Press (the News-Press) violated
Section 8(a)(1) of the Act by threatening employees with disci-
pline if they engaged in an “employee delegation,” interrogat-
ing employees about their union and protected concerted activi-
ties, instructing employees to 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 sec-
tion of the Act by discharging its supervisor, Robert Guiliano,
because he refused to issue a pretextual reprimand to an em-
ployee 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 2-day
suspension notices to 11 employees, issuing lower performance
evaluations, and failing to award performance bonuses to 4
employees, all because those employees engaged in union and
other protected concerted activities.
The News-Press filed a timely answer that admitted the alle-
gations 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 de-
meanor 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 annual-
ly derives gross revenues in excess of $200,000, held member-
ship in or subscribed to the Associated Press, advertised nation-
ally 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 copublishers.
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 case these
concerns are viewed through two separate pairs of eyes. From
the view of Wendy McCaw, the owner and copublisher of the
News-Press, she saw bias in the reporting and sought to elimi-
nate it. But from the view of some employees in the news-
room, they saw McCaw’s efforts as an attack on journalistic
integrity through the injection of McCaw’s own biases into

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.
SANTA BARBARA NEWS-PRESS 465
their reporting. According to those employees this resulted in
the breakdown of a “wall” that should separate McCaw’s con-
trol 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, advertis-
ers, 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 men-
tioned 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 cov-
ered the reintroduction of bald eagle chicks to Santa Cruz Is-
land. 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 mouth-
piece. Disgusting.” She forwarded her comments and the arti-
cle 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 commu-
nity of the coyotes while others had mixed feelings about see-
ing any animal destroyed. A resident pointed out how the coy-
otes had rid her property of gophers and rats. McCaw forward-
ed a copy of the article to then editor and vice president of the
news department, Jerry Roberts, with a handwritten note indi-
cating that she felt the article was biased. At the trial I asked
McCaw to explain what, in her view, was biased about the arti-
cle. She explained:

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 re-
ally no reason for it. It was mass hysteria by a couple of peo-
ple who had a problem with coyotes. . . . But if you start kill-
ing coyotes, you create a lot of other problems. So it’s unin-
tended 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 e-mail message to Cole indicating that the
coyotes article was another piece of biased reporting. She con-
tinued:

I’m sick of this. We have talked to [Roberts] repeated-
ly 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 Da-
vison has been taken in by those guys and only wrote that
side of it. I was told she was supposed to have an envi-
ronmental 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 quot-
ed, 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 Bar-
ney 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 Da-
vison and published by the News-Press on April 9, 2005, nearly
2 years before Davison’s termination. The article was entitled
“Bullets fly as divisive pig hunt on Santa Cruz Island gets un-
der way.” It began:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 466
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 contro-
versy by running an editorial entitled “Our Opinion: Killing
spree off our coast.” The editorial criticized a local member of
the 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 superin-
tendent’s revelations.
Reporters clue readers into their own biases when they
don’t aggressively pursue stories or use derogatory sound-
ing words, such as feral or invasive, to describe wild crea-
tures that have lived on the island since the 1850s.

On March 26, 2006, another article written by Davison was
published by the News-Press. This article concerned the relo-
cation of sea otters to the Santa Barbara Channel. Davison’s
article reported the protests of local abalone and urchin fisher-
men 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 Da-
vison. 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 ex-
tremely 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 prob-
lems 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 fir-
ing the whole newsroom and hiring new people, including the
editors. This has nothing to do with the purported wall be-
tween 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. Any-
thing we write about on the editorial pages, apparently some-
one 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 pejora-
tive, 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 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 behav-
ior 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 copublishers.
Two public events led some on the News-Press staff to be-
come 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 re-
fused 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; Arm-

2 Unless otherwise indicated, the dates that follow are in mid-2006
to early 2007.
SANTA BARBARA NEWS-PRESS 467
strong 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 message3
Von Wiesenberger indicated his real concern about two stories
that had caused extensive damage with the News-Press’ adver-
tisers, 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 eth-
ics.” It continued:

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 bi-
as. 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 con-
cerned,’ abalone fisherman Mr. Rebuck told the crowd.”
The broader message is that the newsroom is not meet-
ing 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 meet-
ings 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 Mon-
tecito. The size of the planned house apparently drew objec-
tions 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

3 Roberts’ response was not offered into evidence.
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 pre-
pare 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 con-
cerned 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 follow-
ing e-mail 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 be-
cause 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 going to cancel his
subscription to the News-Press because it had published the
address. On June 23, McCaw directly issued substantially iden-
tical reprimand letters to George Foulsham, Michael Todd, Jane
Hulse, and Cohee; this was the first time that McCaw had di-
rectly disciplined News-Press staff. The reprimand letters read:

This is an official letter of reprimand concerning yes-
terday’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 de-
tail in the story. Including Mr. Lowe’s address has dam-
aged 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 sub-
scription.
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 in-
cluding, 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 publica-
tion of the addresses of celebrities. Rather, in circumstances
involving planning issues that were the matter of public hear-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 468
ings 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 pro-
ject 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 sto-
ries that might involve celebrities or “high profile” indi-
viduals. In Montecito, that could end up being half the
people in the room.In this case, including the specific loca-
tion 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 sur-
rounding 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
analysis was done of each property, location and square
footage, to give the commission a grasp of how the neigh-
borhood has evolved.
I can understand why it might not be necessary to in-
clude 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 re-
ceives tips or comments related to a daily story I’m report-
ing 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 resi-
dential 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 anoth-
er level. And the placement in paper was absurd. This is
not a page one, above the fold story. Nowhere in your let-
ter 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 oth-
ers. The fact that Mr. Lowe called Travis Armstrong in-
stead of you might indicate something. The fact that
Travis didn’t speak to one of the editors directly might in-
dicate something as well, but blaming Travis for not get-
ting this information in the manner you want is like shoot-
ing 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 prob-
lems 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—
SANTA BARBARA NEWS-PRESS 469
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 pub-
lisher 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 de-
famatory.
. . . .
That someone might be unhappy with a newspaper sto-
ry after it appears, and might even cancel their subscrip-
tion, is one of the many costs for the vigorous application
of journalism, and a price I thought we all implicitly ac-
cepted in whatever role we have at a newspaper. And that
anyone has privacy rights that exceed those given to aver-
age 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 fair-
ness 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 poli-
cy—REVISED” and read, in pertinent part:

Confidentiality

Employees may have access to confidential infor-
mation about the New-Press business, advertisers and
news stories before their publication. It is essential that
the confidentiality of these matters be maintained and pro-
tected 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 organ-
ization or media outlet.
Such disclosures are strictly prohibited and will be
subject to disciplinary action, up to and including immedi-
ate termination.
Any confidential information acquired as a result of
employment with the New-Press may not be used for per-
sonal advantage or profit, nor be divulged for the ad-
vantage 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 manag-
ing 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 in-
side and outside the paper, as unwarranted, hostile to loyal
employees and violative of fundamental principles of pub-
lic 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 commit-
ted, 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 pro-
posed 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 hear-
ing 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 regis-
ter 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 Arm-
strong’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 Administra-
tor) 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 com-
plained about von Wiesenberger’s criticism that Roberts had
run stories that had upset advertisers. Roberts said it was trou-
bling 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 de-
partment “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 deci-
sion that day. After reading the 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 Arm-
strong and Apodaca; some employees sobbed and hugged each
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 470
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, “[F]uck
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, Ger-
ry 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 un-
ethical interference in the news-reporting function of the news-
paper.
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 30 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 dis-
tributed 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 pro-
vide 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 par-
ticular 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 objec-
tion.

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 In-
quirer and the Daily News that its employees who are en-
gaged in the gathering, writing or editing of the news shall
remain free to fulfill their respective functions and respon-
sibilities without interference, disruption, or threats of re-
taliation from any source, including from the directors, of-
ficers, agents and shareholders of PMH, or any related en-
tities.
Therefore, the Employer agrees that these editorial
functions shall at all times remain independent of the own-
ership and control of PMH, and no director, officer, agent,
or shareholder of PMH shall attempt in any manner, di-
rectly or indirectly, to influence or interfere with the edito-
rial policies and functions of the Inquirer and the Daily
News as described above, or the decisions of the Publisher
involved therein.
The Guild shall have, in addition to those remedies
available at law, the right to pursue to immediate arbitra-
tion any breach, or attempted breach, of this provision of
the agreement. The parties agree in such event, the arbi-
trator 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 appro-
priate 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 condi-
tions 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 sepa-
ration between the opinion/business side of the pa-
per 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 edi-
tor.
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.
SANTA BARBARA NEWS-PRESS 471
On July 14, the Union and its supporters held a noontime ral-
ly 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 concern-
ing the employees’ ability to speak to the media about the
events that recently occurred there. At noon about 20 employ-
ees 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 practice
allegations in this case, and Starshine Roshell, whose column
was later canceled 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. An-
other reporter then stated that a majority of the staff had com-
mitted 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, tele-
visions 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 em-
ployees’ 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 ac-
complished 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 re-
signed. 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, in-
cluding 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, Go-
leta, 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 difficul-
ties 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 tradi-
tions 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 ten-
sions will always exist between the news staff and man-
agement, discussions and debate lead to better news cov-
erage. 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.
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 appre-
ciation 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 stat-
ed 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 in-
tegrity 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:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 472
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 sub-
scription 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 stand-
ards 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 dan-
ger because the journalists were under assault from manage-
ment. 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 pro-
hibiting the employees from making disloyal remarks about the
newspaper but Burns said her first loyalty was to her profes-
sion. 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 the journalists who remained
desperately wanted to practice their profession in an atmos-
phere of respect for journalism ethics and she was asking for
the help of the community by signing the subscription cancella-
tion 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 center-
piece 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 writ-
ten 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 meet-
ing with the news department employees to announce his pro-
motion. During the meeting, the employees questioned Stee-
pleton concerning McCaw’s involvement in the news depart-
ment. 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 meet-
ing 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 run-
ning her own newspaper.” I pause to comment on this testimo-
ny. 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 exaggera-
tion that serves to undermine Steepleton’s credibility as a wit-
ness. I comment more on the credibility of Steepleton’s testi-
mony 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 spokes-
woman 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 state-
ment late Thursday that “after repeated strong-arm at-
tempts to unionize the Santa Barbara News-Press without
going through the NLRB process, union leaders today
conceded defeat and filed a petition with the NLRB.”
“These ugly tactics, known as a ‘corporate campaign,’ at-
tempted 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 at-
mosphere 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.”
SANTA BARBARA NEWS-PRESS 473
Added crime reporter Dawn Hobbs: “We are dealing
with an intolerable situation at a newspaper that had previ-
ously 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 tol-
erated,” 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 adjust-
ments 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 12 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, in-
cluding 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 fund-
raiser followed the rally and the attendants were asked for con-
tributions 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 organ-
izer, 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 Septem-
ber 28 edition. Among the photographs included in the cover-
age was one of Hobbs hugging Burns in the aftermath of the
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 ap-
peared 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 objec-
tions 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 con-
tributions had made editors and staff concerned about the pa-
per’s coverage of the news. It stated, “For journalists who be-
lieve 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 meas-
ure 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 can-
didates 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.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 474
“$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 discrimi-
natees 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 im-
pressed with Schultz’ 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 conclu-
sion concerning the reliability of his testimony. I deal with the
News-Press’ challenge to Schultz’ 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 earli-
er. Nonetheless, I rely on his testimony to the extent that it
described the editing procedures in the newsroom and his work-
ing relationship with Burns. In that regard his testimony was
largely uncontested. Sarah Sinclair worked for the News-Press
for over 20 years until her resignation in February 2007; during
that time she held various management positions in the adver-
tising department. I found her testimony, also largely uncon-
tested, 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 wit-
nesses. I rely on it also. Marty Keegan, the Union’s lead or-
ganizer, was also a witness in this proceeding. His testimony
largely corroborated that of other employee-witnesses concern-
ing the organizing campaign and too was mostly uncontested.
In addition, he provided testimony concerning the pledge of
noninterference set forth above. His demeanor was sincere and
convincing and I credit his testimony.
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 eval-
uation from Steepleton; this is described in more detail below.
During that conversation, according to Guiliano, Davison ex-
pressed concern about the low ratings that Steepleton had given
her. Guiliano had recently attended 6 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 ve-
toed 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 Guili-
ano’s testimony in this regard because Davison credibly cor-
roborated 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 an-
swer in the affirmative to blatantly leading questions. For ex-
ample, 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 mat-
ter of obscenity in the newsroom. Steepleton was asked a se-
ries of questions by counsel for the General Counsel. Did Rob-
erts 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
SANTA BARBARA NEWS-PRESS 475
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 discipli-
nary 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. Concern-
ing the Rob Lowe incident, he testified that the News-Press had
a prior practice of not publishing the home addresses of celebri-
ties and that practice was based on common sense. However,
this testimony is 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 testi-
fied 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 ques-
tions 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 tes-
timony 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 Wie-
senberger appeared prone to exaggerate to enhance the litiga-
tion prospects of the News-Press. For example, among the
points raised in the May 17 message he sent to Roberts, re-
ferred 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 de-
rogatory term) and biased, to the extent it forms the conclu-
sion 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 Wie-
senberger 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 re-
gard. 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 Wiesen-
berger 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 col-
umnist 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 newspa-
per because we felt that the columns were not what people
wanted to read.” (Emphasis added.) This testimony came de-
spite 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 canceled too. And this is apart
from the fact the message quoted above shows that von Wie-
senberger was instructing Roberts to search for a new columnist
at that time. Again, von Wiesenberger’s testimony fits conven-
iently 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.
Finally, the News-Press presented the testimony of John Irby
as an expert in the field of journalism. To the extent he testi-
fied 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 Sec-
tion 8(a)(1). In general, the test in resolving these allegations is
whether the employer’s conduct tends to interfere with, re-
strain, or coerce employees in the exercise of their rights pro-
tected by the Act. This test is an objective one; that is, the ex-
istence of actual coercion is not required. See California Acryl-
ic Industries 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 nec-
essary tendency of the former . . . to pick up the intended impli-
cations 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 476
column, and the lower evaluations turn on assessing the moti-
vation 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 em-
ployer’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 protect-
ed, concerted activity, the employer was aware of the activity,
and the employer was hostile towards that activity. See Con-
solidated Bus Transit, 350 NLRB 1064, 1065–1066 (2007).
Moreover, as the Board stated in Real Foods Co., 350 NLRB
309, 312 fn. 17 (2007):

Unlawful motive may be demonstrated not only by direct evi-
dence but by circumstantial evidence, such as timing, dispar-
ate or inconsistent treatment, expressed hostility toward the
protected activity, departure from past practice, and shifting or
pretextual reasons being offered for the action [citations omit-
ted].

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.
As noted above, a purpose of the union activities of the em-
ployees 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 8(a)(5) allegations where the
precise limits of permissive and mandatory subjects of bargain-
ing 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 integ-
rity 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 pub-
lisher 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 reme-
dies. Passaic Daily News v. NLRB, 736 F.2d 1543 (D.C. Cir
1984).
In Peerless the Board concluded that a newspaper could uni-
laterally 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 estab-
lish 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 nec-
essarily being required to bargain initially. [Footnotes omit-
ted.] [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), over-
ruled on other grounds Peerless Publications, Inc., 283 NLRB
334 (1987), that regulations appearing to undermine employ-
ees’ 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 inde-
pendence from the editorial side of the paper. . . . The edi-
torial side is the opinion side. The publisher’s opinion is
in the editorials. The news side has to have the independ-
ence 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 publish-
er’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.

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 testi-
fied 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 cir-
cumstances in this case than in a situation where a newspaper is
imposing ethical standards to enhance the newspaper’s credibil-
ity. That might especially be true here, where the News-Press
presents itself as a credible newspaper and expects its employ-
SANTA BARBARA NEWS-PRESS 477
ees to maintain high ethical standards yet engages in conduct
that employees believe undermines their credibility as journal-
ists. 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 cau-
tioned that a newspaper’s degree of control over editorial integ-
rity 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 le-
gitimate and necessary objectives, without being overly
broad, vague, or ambiguous; and (2) appropriately limited in
its applicability to accomplish the necessarily limited objec-
tives.

Applying that test to this case, the News-Press’ ethical stand-
ards, 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 news-
room’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. Col-
lective 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 integ-
rity may be a matter over which employees may 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 con-
cerned about the effort to restore journalistic intergrity as op-
posed to ridding itself of prominent union supporters. I there-
fore reject the News-Press’ argument that the employees’ ef-
forts, through supporting a union, to “restore” journalistic in-
tegrity 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 unrelat-
ed 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 juris-
dictions.” 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 impre-
catory 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 expres-
sions during the course of protected activity is not without
limitation. Otherwise protected activity may become unpro-
tected “if in the course of engaging in such activity, [the em-
ployee] uses sufficiently opprobrious, profane, defamatory, or
malicious language.” American Hospital Assn., 230 NLRB
54, 56 (1977). Nonetheless, “[T]he most repulsive speech en-
joys immunity provided it falls short of a deliberate or reck-
less 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 & Engi-
neering, Inc. of Bad Axe, 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 entrepre-
neurial control of the newspaper. But these statements, in the
context of this case, are simply insufficient to support that con-

4 See Bridgestone Firestone South Carolina, 350 NLRB 526 (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
coworkers. 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 478
tention. In any event I credit Schultz’ 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 employ-
ees for participating in activities protected by the Act are irrele-
vant 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 Cir. 1976). The News-Press
points NLRB v. Electrical Workers Local 1229 (Jefferson
Standard), 346 U.S. 464 (1953), and argues that certain state-
ments made by the union supporters were disloyal. But state-
ments such as “Banish the Bias” and “McCaw Obey the Law”
are clearly protected by the Act and are not disloyal. Beverly
Health & Rehabilitation Services, 346 NLRB 1319, 1321–1322
(2006), 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 employ-
ees have a labor dispute. Equitable Life Assurance Society of
the US, 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, 2007 U.S. App. Lexus 28030 (4th Cir.
2007), cited by the News-Press in its reply brief.
In its brief the News-Press cites Five Star Transportation,
349 NLRB 42 (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 unre-
lated 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 resolu-
tions, 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 canceled 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 em-
ployees.
As indicated above, Roshell was an active and visible sup-
porter 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 mar-
keting 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 newspa-
pers and covered topics such as human interest, home, garden,
and food. She also wrote theater and music reviews.
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 sev-
en-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 Yid-
dish 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, out-
lined 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 con-
cluded:

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 pol-
SANTA BARBARA NEWS-PRESS 479
icy that we believed is too restrictive. Covered by media
nationwide, the event taught me two new uses for duct
tape:
It’s great for making a loud statement without saying a
word.
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 jour-
nalists, 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.
. . . .
These folks (who, it’s worth noting, had the most fine-
ly 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 careful-
ly, 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 secu-
rity over journalistic integrity.

As mentioned briefly above, on August 10 Steepleton made
a number of additional work assignments to newsroom em-
ployees, 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 e-mail 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 sched-
ule permits it. Thanks for thinking of me.

On August 16, 6 days after the Union filed its petition to rep-
resent the News-Press employees, Steepleton told Huebner that
Roshell’s column was being canceled under a new policy.
Steepleton told Huebner that the new policy was being imple-
mented 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 can-
celed and Steepleton replied that they were not being canceled
at that time. The result was that under the new policy as an-
nounced by Steepleton the only column then being canceled
was Roshell’s. The next day Huebner contacted Steepleton on
the matter and explained that because Roshell’s column was the
only one being canceled under the new policy it gave the ap-
pearance 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 canceled
pursuant to a new policy. After being asked by Roshell, Hueb-
ner explained that only Roshell’s column was being canceled at
that time. Roshell then met with Huebner and Steepleton.
Roshell stated that she wanted a clarification on why her col-
umn was cancelled. Steepleton answered that there was a new
business model that called for more reporting. He said, “Re-
porting, 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 canceled and Steepleton said he did not know whether the
new business plan 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 Steeple-
ton 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 column-
ist. Maria Zate compiled a weekly column of local real estate
deals, but this was not the type of a column where she ex-
pressed 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 2
consecutive days told her that someone wanted to kill her. In
the article Fuentes tells how Guiliano described these com-
ments 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 de-
scribed 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 opin-
ion 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480
. . . .
The current labor union placards read: “Banish the bi-
as.” 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 bi-
ased as ever. Not one asking me how I feel, what hap-
pened, 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. Pon-
tificating 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 differ-
ent; 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 11 years.
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, how-
ever, 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 at-
tempt 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 can-
cellation 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

5 The News-Press offered testimony concerning a numbers of e-
mails 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 pro-
ceeding.
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 canceled. 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 indi-
cated 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 be-
cause 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 con-
clude 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 antiunion campaign it
conducted as described above and below by the many viola-
tions 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 em-
ployees 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 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 canceled
the column for such reason. Rather, this conclusion serves to
buttress a finding that the cancellation was unlawful.

6 Steepleton described a stringer as someone who is not employed by
the News-Press but is a contract per piece typewriter.
SANTA BARBARA NEWS-PRESS 481
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 activi-
ties likewise entered into the decision. More importantly, the
News-Press’ First Amendment right certainly would have al-
lowed 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’ supe-
rior to have Smigless refocus the column back to its original
intent. The News-Press did neither of these; instead it canceled
Roshell’s column altogether. This the Act forbids and the First
Amendment cannot be stretched so broadly as to preempt 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 2-Day Suspensions
The complaint alleges that on or about August 24 Steepleton
unlawfully threatened employees with discipline if they en-
gaged in an “employee delegation.”7 The complaint also alleg-
es that on August 31 the News-Press issued 2-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 com-
plaint alleges that on August 31 Apodaca unlawfully threatened
to discipline employees if they engaged in an “employee dele-
gation.”
On August 24, the employees prepared and signed the fol-
lowing:

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 stories.
One union supporter was punished with loss of her col-
umn. The car of another supporter was photographed be-
cause of pro-union slogans in the window.

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.
Now we are confronted with a conflict of interest poli-
cy 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 dis-
suade 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 dis-
charge 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 assem-
bled in the newsroom for the purpose of delivering the letter to
McCaw. The employees then walked to McCaw’s office locat-
ed 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 Apo-
daca’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 pre-
sent 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 Apo-
daca 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 p.m. The
employees returned to the newsroom passing Steepleton on the
staircase and resumed working. The entire event lasted about
10 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 worktime as opposed to the afternoon
breaktime. At around 4 p.m., Schultz called Apodaca and
asked if McCaw was available. He also asked if von Wiesen-
berger 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 respond-
ed that he had just spoken with Apodaca and had made ar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482
rangements with her for the employees to bring the letter to her.
Schultz asked if he could call Apodaca because she was expect-
ing 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.
That same day Schultz sent the following e-mail message to
Apodaca:

On behalf of myself and the other signatories to our letter to
Mrs. McCaw, thank you for handling our request earlier to-
day. 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, 7 days later, Steepleton sent the employees
the following letter:

Please be advised that you are being suspended with-
out 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 News-
room and you needed to get back to work. You ignored
these instructions.
You proceeded to march to Mrs. McCaw’s office, as-
sembled 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 contin-
ued to disrupt other workers by parading through the
building, interfering with their work activities, the activi-
ties 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 termina-
tion 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, dur-
ing 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, intimi-
date and interfere with workers and impede access to the
hallways and stairwells as they proceeded to march
through the building.
This type of disruption and insubordination is unac-
ceptable and will not be tolerated. We will not permit em-
ployees 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 includ-
ing termination.

Again, no credible evidence was submitted at the trial to sup-
port the assertions in the memorandum that the employees en-
gaged 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 perti-
nent 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 confi-
dent about how I handled the phone and all that, and that eve-
rybody 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’ 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 e-mail
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 describ-
ing 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 tac-
tics, 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
SANTA BARBARA NEWS-PRESS 483
connected to the organizing campaign. The News-Press man-
agement 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 e-mail 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 de-
mands into the floor at HR.

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 at-
tempt by them to confront, threaten, and physically intimi-
date all of us in the building and interfere with our work.
These aggressive actions created emotional and physi-
cal 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 pres-
sure 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 stop-
pages 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 mischaracter-
ized the march on August 24 and indicated that if the employ-
ees 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 en-
gaged 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 activi-
ties 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 that by threaten-
ing to discipline employees if they engage in protected concert-
ed 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 de-
partment 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, com-
pleteness, 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 pro-
cess 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 stand-
ards that they were to apply concerning what constituted bias
were changed by McCaw and von Wiesenberger when they
became copublishers.
Burns worked for the New-Press for 21 years. At the time of
her termination she was a senior writer, a position she had oc-
cupied since 1995; as such she worked on projects that took
time to create such as investigative reports. She was 1 of only
3 senior writers among the staff of about 25 reporters for the
New-Press. During her work with the New-Press, Burns re-
ceived about 15 awards and 5 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 484
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 trans-
portation projects in the county. The article reported on how
measure D, if passed, would provide funds for safety improve-
ments around schools. It also reported the viewpoint of oppo-
nents 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 edito-
rial 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 pub-
lished 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 Wie-
senberger 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 pub-
lisher of the Montecito Journal] if he would like to send a let-
ter 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 arti-
cles. They must always be balanced. Possibly, there is no
greater duty of a reporter. The public relies upon it. De-
spite 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 ter-
minate your at-will employment agreement. . . .
Your history of biased reporting has been well docu-
mented 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 subject matter.” Edi-
tors 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 Edi-
tor Jane Hulse, and Linda Strean stated:
“We are seeing a troubling trend in her writ-
ing. Her personal views on environmental
and social issues are creeping into her stories
which keep her from presenting a full, unbi-
ased picture of the subject matter.”
 In your 2005 evaluation then Managing edi-
tor 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 bi-
ased 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 in-
clude 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.
SANTA BARBARA NEWS-PRESS 485
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 dis-
tributed 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 opin-
ions 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 for-
mer management should have tolerated your biased report-
ing 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 arti-
cles for bias.
In light of the repeated warnings and years of caution-
ing 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 em-
ployee handbook require you to maintain the private in-
formation concerning your employment at the News-Press.
We will respect your privacy and will not initiate any
comments upon the reasons for this termination. Howev-
er, should you initiate, either directly or through your
many long-term connections with fellow journalists, pub-
lic comment on the same, we will respond with the true
facts concerning the termination, including your long his-
tory of biased reporting, 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 termi-
nation 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 ter-
mination 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 elimi-
nate bias; Steepleton conceded that he did not investigate who
had performed that editing. Concerning the portion of the ter-
mination letter describing how promeasure D forces had used a
portion of the article Burns had written, Steepleton conceded
that politicians or proponents of measures frequently use news-
paper 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 sto-
ries. 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 Uni-
versity of California, Berkeley, Graduate School of Journalism.
While working at the News-Press, Strean frequently reviewed
Burns’ work; she signed off on Burns’ 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 con-
cern by revising the story. She explained:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 486
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 ac-
tivities of the employees is documented above and below. The
termination came barely a month after the Union overwhelm-
ingly won the election in which Burns had played such a signif-
icant 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 ter-
mination 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 Un-
ion. 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 disci-
plinary action. Rather, the fact that the comments in the eval-
uations 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 men-
tioned in the termination. But Burns’ assignment was to cover
an activist forum and she accurately did so. Under those cir-
cumstances there was no obligation to seek out other view-
points because she was not writing a comprehensive story on
immigration issues. Steepleton gave her the assignment and he
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 accord-
ing 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 conten-
tion that the News-Press, with McCaw and von Wiesenberger
as co-publishers, was trying to refine or change the past stand-
ards of what constituted bias. Under these circumstances I
conclude that the News-Press has failed to show any shortcom-
ings 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 conced-
ed it is not unusual for proponents to use News-Press publica-
tions for their partisan benefit and, of course, it does not neces-
sarily 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 in-
tends to do so in the future. The bottom line for the News-
Press’ argument is that Burns’ article was biased because Stee-
pleton 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 Oc-
tober 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, 307 NLRB 1301
(1992), cited by the News-Press in its brief. In that case the
employer presented persuasive evidence that it had fired anoth-
er employee for petty theft, the same reason it fired the alleged
discriminatee.
At the trial the News-Press pointed to corrections it pub-
lished 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).
SANTA BARBARA NEWS-PRESS 487
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.
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 Febru-
ary 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 independ-
ent 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, con-
tinuing the excellence. Santa Barbara News-Press, today,
tomorrow and beyond.
D. Interrogations
The complaint alleges that on about December 15 Steeple-
ton, through a written affidavit distributed to employees, inter-
rogated 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 opin-
ions 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 pag-
es 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 miscon-
duct before the election, and we filed objections in an at-
tempt 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 Rela-
tions 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 Court has ruled that it is disloyal for an employee
to publicly disparage the quality of the Employer’s prod-
uct. 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 at-
tack constitutes insubordination, disobedience, or disloyal-
ty. The fortuity of the coexistence of a labor dispute af-
fords the employee no substantial defense. We are cer-
tainly 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 ex-
pect the loyalty of our employees. Public disparage-
ment/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 be-
cause 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 employ-
ees to discuss wages, etc., and to allow employees to communi-
cate with a labor organization and the media concerning union-
ization.
Craig Smith is a blogger in Santa Barbara; he had been re-
porting on events at the News-Press. Steepleton testified that
he learned that someone has “leaked” the December 5 memo-
randum to Smith and it appeared in his blog. Steepleton testi-
fied that under his understanding of the News-Press’ confiden-
tiality policy the December 5 memorandum “shouldn’t be
leaked to anybody, meaning we—we should not give that in-
formation out.”
On about December 15, Steepleton called each employee
from the newsroom individually into the conference room at the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 488
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 memo-
randum] 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 per-
jury, 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; Stee-
pleton did not voice any objections to those employees.
I describe the specifics of two employees who were involved
in this matter. Steepleton handed the December 15 memoran-
dum 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 memo-
randum 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 disci-
plinary 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.” Steeple-
ton 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 any-
one 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 “pa-
per flying” from Apodaca and McCaw she couldn’t remember
if it was she or someone else to sent the December 5 memoran-
dum to the Union’s lawyer. Steepleton asked whether Hobbs
was going to sign the December 15 memorandum and she an-
swered 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 reasona-
bly tended to cover conduct protected by the Act, such as dis-
seminating the December 5 memorandum to the Union. After
all, the December 5 memorandum explicitly focused on the
union organizing campaign and threatened discipline to em-
ployees 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 testi-
mony of Hobbs and Schultz confirms the fact that the question-
ing 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 nar-
row the scope of his questioning. Whatever legitimate purpose
the News-Press may have had, the broad nature of its interroga-
tions of employees exceeded that purpose. ATC of Nevada, 348
NLRB 796 (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 con-
ducted by Steepleton, the highest supervisor in the news de-
partment. The employees had to answer the questions under
penalty of perjury. There is little doubt that a threat of disci-
pline hovered over the questioning. The fact that only news-
room 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 coer-
cive nature of the interviews. I find that by coercively interro-
gating employees concerning their union activities, the News-
Press violated Section 8(a)(1).
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 organ-
izing effort.” In fact Hobbs and Burns were the two leaders in
the organizing drive. The most visible and vocal union sup-
porters 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
SANTA BARBARA NEWS-PRESS 489
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 Apo-
daca’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 Steeple-
ton’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 peri-
od of only several months that year and after the union organiz-
ing 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 dete-
riorating in 2006.
Concerning Hughes, Steepleton noted in her evaluation sev-
eral times and at trial that Hughes was repeatedly late in sub-
mitting her Public Square columns; that it was supposed to be
completed 2 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, espe-
cially if a late breaking story hits their desks.

Hughes received a rating of 4 out of a possible 5 in that catego-
ry 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 col-
umns. I note that in 2006, the year she received the low evalua-

9 In addition, as the General Counsel points out in his brief, Steeple-
ton asserted that he did not want employees being evaluated by their
friends, yet he evaluated his wife and gave her a perfect score.
tion 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 Steeple-
ton 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 some-
one 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 reli-
gion beat. Steepleton clarified that the education desk assign-
ment was in addition to her religion assignment. Thereafter,
Evans covered both areas. During the evaluation period Evans
took 5 weeks of medical leave. At the hearing, the News-Press’
attorney asked Steepleton, “Was there any issues with Ms. Ev-
ans 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 quot-
ed, “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 sub-
ject 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 evalua-
tion 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 at-
tention 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 rea-
son for going delving into Evans’ medical condition. A more
likely explanation for the “distraction” comment is that it re-
ferred 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
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 writ-
ten; 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 in-
formed the woman that the story was set to run in near future.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 490
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 as-
sured 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 acknowl-
edged 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 e-mail 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 morn-
ing of Thursday, July 6 when I asked Jerry Roberts to
leave the News-Press building upon his submitting his res-
ignation 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 confrontation-
al 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 re-
ceiving 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 Hueb-
ner, Roshell, and Evans. I do not credit Armstrong’s testimony
at trial.
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 as-
signed Hobbs to do a story involving the Santa Barbara police
department and, according to Steepleton, “[S]he 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 “[n]umerous con-
versations [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 per-
formance 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. Da-
vison had stepped forward in the days following the resigna-
tions 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 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 re-
quired.” At the trial in this case, Steepleton added that he ob-
served Davison engaging in “nonproductive work during work-
ing 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.” Steeple-
ton 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.

SANTA BARBARA NEWS-PRESS 491
The other employees included Evans, Burns, and Hobbs. When
Steepleton gave Davison her 2006 evaluation Davison protest-
ed; 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 be-
cause Steepleton had been in charge only since August. Apo-
daca 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 comput-
er and explained, “[O]h, 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 Da-
vison to a 3 in that category; he provided no explanation, either
in the evaluation or at trial to support this rating. Davison dis-
cussed 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 lim-
ited 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 in-
creased 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 per-
formance 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 discrimi-
nate 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 Un-
ion shown by Davison, Hobbs, Evans, and Hughes.
Analysis
Davison, Hobbs, Evans, and Hughes each received signifi-
cantly 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 un-
dertook 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 ongo-
ing 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 some-
one 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 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 rela-
tively 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 Stee-
pleton to tighten up evaluations, but I again do not credit Stee-
pleton’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 Steeple-
ton’s earlier e-mail message meant that she now had the educa-
tion 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 ap-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 492
pears to have been a simple and quickly rectified misunder-
standing 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 perfor-
mance. But I have not credited Steepleton’s testimony either
that this matter was mentioned in the evaluation or that it af-
fected Evans’ work performance. Steepleton’s fabricated tes-
timony 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 Stee-
pleton’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 Arm-
strong. I have determined above, however, that Hobbs did not
do so. Nor do I consider this a matter of a good faith but mis-
taken 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 con-
sider it but that she was waiting to get a response to her request
for a bonus. Her bonus request was later denied. Neither Stee-
pleton nor Davison raised the matter again. Based on this Stee-
pleton gave her the lowest possible rating in two categories in
her evaluation, thereby indicating that Davison “[d]oes 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. More-
over, Steepleton conceded he gave Davison the lower evalua-
tion in part because he believed she was conducting union ac-
tivity 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 cate-
gory; he provided no explanation, either in the evaluation or at
trial to support this rating. Finally, Davison discussed her eval-
uation 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 con-
clude 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 en-
gaged 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 vehi-
cles and wearing those buttons while at work. Steepleton ad-
mitted 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’ posi-
tion 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 permit-
ted 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 asser-
tion 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 but-
tons 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 Un-
ion. Davison worked as a staff writer since October 2002.
While at the News-Press Davison won a commendation from
the Newspaper Publishers 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 Ad-
vancement of Science Writing to travel to the University of
Arkansas to attend a science seminar. The News-Press con-
tends Davison was fired for bias reporting in an article written
SANTA BARBARA NEWS-PRESS 493
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 involve-
ment with the Union, the News-Press commented:

Anna’s writing sparkles. She writes with flair, hu-
mor,—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 confi-
dent 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 sto-
ries. 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 crit-
icizing 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 beautifica-
tion 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 pro-
ject and then called an 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 pre-
pared by Davison. The article was entitled “Walk This Way”
and was accompanied by a photograph of a worker in a hardhat
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 San-
ta 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 re-
fused 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 stat-
ed:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 494
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, Architec-
tural Review, Old Town Merchants, Parks and Recreation,
City Council . . . the list is long and the hearings and dis-
cussions have been prolonged and public. The final deci-
sion 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.
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 un-
derstanding, but there has been a lot of stuff going on at
the News-Press recently which has been beyond my un-
derstanding. Presumably the newspaper editorial man-
agement 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 per-
sonally 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 ar-
boreal 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 vandal-
ism—What is going in now, as part of the renovation, will
be larger and hardier and just as leafy and beautiful. Be-
tween 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 de-
struction, and have in past argued strenuously for preserv-
ing trees throughout the City, as my colleagues on the Tree
Advisory Committee and City Council will attest. Persis-
tent 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.
Your recent article on January 15, 2007, was totally
biased in that it reported on an issue that always is sur-
rounded by controversy—cutting down trees on a public
street in Santa Barbara—without any reporting on the oth-
er 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 ri-
diculous 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 pro-
ject, and the flood of letters to the editor opposing it when
it became known made it clear that were others with dif-
ferent 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. With-
out 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 report-
ing. 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.
SANTA BARBARA NEWS-PRESS 495
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 Peo-
ple” by trying to agree with McCaw in order to influence her.
He gave the same explanation to Davison, who saw the e-mail
before she was fired, became angry by the comment and ques-
tioned 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 Chan-
nel 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. Re-
member, 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.
On April 12, News-Press TV10 aired a report on the Lower
State Street construction. The report described the beautifica-
tion 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 re-
placed. 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 ex-
plained how the redevelopment and beautification project on
Lower State Street lasted about 5 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 in-
clude 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

10 The record does not clearly define the relationship between the
News-Press and News-Press TV.
safer bricks; in other words, in the words attributed to Davison
by Steepleton, “[T]here was no ‘other side.’”
On April 8, the News-Press published a story about two
workers being fired because they made too much money. Stee-
pleton 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 support-
er, 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 immi-
grants 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 report-
ing.
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 respons-
es. Also, Davison’s termination relies in part on her evaluation
which I have already found to be unlawful. That same evalua-
tion, 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 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 arti-
cle 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 be-
cause 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 posi-
tion 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 circum-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 496
stances 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 Guili-
ano, the News-Press’ assistant city editor, on January 26 be-
cause he failed to issue a pretextual reprimand to Davison in
furtherance of that employee’s unlawful discharge. The assis-
tant city editor is a management position. In its brief, the
News-Press contends that it fired Guiliano for three main rea-
sons. Those were Guiliano’s refusal to follow a direct order to
reprimand Davison; Guiliano’s inappropriate public exclama-
tion concerning Steepleton’s testimony given at Judge
Schmidt’s hearing; and Guiliano’s inappropriate and baseless
accusation that reporter Leana Orsua had committed plagia-
rism.
Steepleton hired Guiliano in October. At the trial in this case
Guiliano testified that he refused to issue the reprimand to Da-
vison 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
positive feedback, and that he did not feel the article that Da-
vison 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 repri-
mand Davison, Steepleton testified that he received a call from
McCaw. He testified that McCaw told him that she had repri-
manded 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 Apod-
caca’s office where she also was present. Steepleton told him

11 The Union, in its brief, argues that the News-Press gave shifting
reasons for discharging Davison and that this too supports the conclu-
sion 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 gen-
erally 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 multi-
ple issues strikes me more as an erroneous comment than a serious
contention. Accordingly, I give it little weight.
he was fired “performance related.” Guiliano protested that he
ran the newspaper for 3 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 termi-
nation. 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 any-
way. 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 Stee-
pleton testified at the hearing before Judge Schmidt; Guiliano
attended the hearing that day. According to Steepleton, Guili-
ano 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 inappro-
priate 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 prepar-
edness 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 testi-
fied 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 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 disser-
vice to Orsua by addressing the matter in public. However,
there was no specific evidence presented that Guiliano ad-
dressed his concerns with Orsua in front of other reporters.
There is also no evidence that Steepleton ever advised Guiliano
SANTA BARBARA NEWS-PRESS 497
that he had a different opinion as to what constituted plagia-
rism.
Later, when questioned by counsel for the New-Press Stee-
pleton added other reasons that lead to Guiliano’s termination.
On November 19, Guiliano e-mailed an assignment to Orsua
concerning the possibility that the draft might be reinstated.
The e-mail 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 memo-
rize it. It will self-destruct in 20 seconds. . . . [Italics in origi-
nal.]

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 Stee-
pleton’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 “uncom-
fortable,” insinuating sexual harassment, while the real situa-
tion focuses 100 percent on my assuring that she write accu-
rate, unplagiarized stories for publication in our newspaper,
even if she finds this frustrating because of her apparent ina-
bility 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 super-
visor 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 dis-
pute of whether or not Orsua committed plagiarism seems wild-
ly exaggerated so as to serve as basis for discharge in what
otherwise would likely have been only a matter of discussion or
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 Da-
vison’s article stands in stark contrast to his own role in approv-
ing Burns’ allegedly biased article and links Davison’s unlaw-
ful 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 interro-
gated employees concerning their union activity.
Prompted by Davison’s termination the week before, on Feb-
ruary 2 before work Burns, Dawn Hobbs, Rob Kuznia, Barney
McManigal, John Zant, Melissa Evans, and Tom Schultz as-
sembled 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 morn-
ing 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 dis-
played; 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 “Or-
ganized N-P Newsroom Urges Drivers to Cancel Their News-
paper Subscriptions.” The article was accompanied by a pho-
tograph of the overpass with the “Cancel Your Newspaper To-
day” 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 498
stop and how those related to the fired employees’ “involve-
ment 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 in-
dividually 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 re-
ceived identical termination letters that read:

Effective immediately, you are discharged from your em-
ployment at Santa Barbara News-Press for engaging in dis-
loyal 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, Steeple-
ton’s testimony is completely lacking in credibility. This seems
to me to be one of those revealing moments during the testimo-
ny 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 em-
ployees to apply economic pressure on the News-Press by hav-
ing subscribers cancel their subscriptions is conduct protected
by the Act. Citing cases such as NLRB v. Washington Alumi-
num Co., 370 U.S. 917 (1962), the News-Press argues that the
activity the employees engaged in on overpass was not protect-
ed 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 con-
duct. Molon Motor & Coil Co., 302 NLRB 138 (1991), 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 deal-
ing with issues of reinstatement and backpay. In its brief, the
News-Press cites the dissenting opinion in Endicott Intercon-
nect Technologies, 345 NLRB 448 (2005). I am, of course,
bound to follow Board; I am not free to apply dissenting opin-
ions. 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 McMani-
gal, 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 dis-
charge, were clearly coercive. By 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 8 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 de-
livered to the News-Press’ facility. The News-Press has news-
paper machines in front of its facility and they had been vandal-
ized 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 unspeci-
fied nature and at unspecified times. Importantly, there is no
evidence linking those events to the need for the video surveil-
lance of the protesters. I conclude that the News-Press has
failed to show any proper justification for this surveillance. In

12 The complaint alleges that Steepleton conducted the interrogations
while the evidence shows that the employees were questioned by Kel-
ley 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.
SANTA BARBARA NEWS-PRESS 499
the context of the series of violations found above, I find that
the News-Press violated Section 8(a)(1) by engaging in surveil-
lance of the union activities of employees.
K. Surveillance at Library Meeting
The complaint alleges that on about February 13 David Mill-
stein, an attorney for the News-Press, interfered with and en-
gaged in surveillance of employees engaged in union activity at
the Santa Barbara public library. On January 30, Burns com-
pleted 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 Feb-
ruary 8, the union supporters at 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 im-
prove the editorial and workplace atmosphere in the news-
room. 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 opin-
ion 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 sus-
pect 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 rep-
resented in this effort by [the Union.] In March, the Na-
tional Labor Relations Board will prosecute the New-Press
for illegally firing a senior writer and threatening news-
room employees.
Your ads are appearing in a paper that is rapidly losing
credibility among its readers. But with your help, we be-
lieve we can turn the New-Press around. On Feb. 13, we

13 The News-Press attempts to make something of the fact that on the
application Burns indicated the Union was a nonprofit organization;
this allowed Burns to pay $35 instead of the $125 that profit organiza-
tions would have to pay. The application form did not have a definition
of nonprofit organizations. I accept Burns’ testimony that she did not
believe the Union was a profit-making organization.
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 meet-
ing. 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 en-
tered 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.
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 disrup-
tive nature of this conduct adds to its coercive nature. I have
considered and rejected the News-Press’ defenses for its con-
duct set forth in its brief. I find that the News-Press again vio-
lated 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 dis-
charged employees are entitled to reinstatement or full backpay
based on after acquired evidence of misconduct. In John Cu-
neo, Inc., 298 NLRB 856 (1990), the Board held that if an em-
ployer 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 825, 826–827 (2007). That case involved an em-
ployee 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 estab-
lished 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 em-
ployer discovered that she had falsified her employment appli-
cation.
The News-Press also points to postdischarge conduct by the
discriminatees that it contends should deprive them of rein-
statement and full backpay. But in C-Town, 281 NLRB 458
(1986), the Board stated:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 500
[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 e-mail message
that included:

If you want me to help you fix this paper, my suggestions
would be these: Ideally, I would recommend firing [Arm-
strong, 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], un-
less 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 newspa-
per, go ahead, but not in a position where he would be ex-
pected 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 backpay 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 reinstate-
ment. 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, re-
ferred to von Wiesenberger in a condescending manner, and
overall displayed a level of familiarity that seemed inappropri-
ate. Taking into account the fact that Guiliano would be return-
ing 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’ backpay obligation as of March 26,
2007. Because I have concluded that Guiliano’s March 26 e-
mail message to McCaw terminates the New-Press’ obligation
to reinstate him and ends his back pay period, I need not re-
solve 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 backpay 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 unlaw-
ful because it poses a safety problem to the traveling public. A

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.
SANTA BARBARA NEWS-PRESS 501
conviction for such an unauthorized encroachment is consid-
ered 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 me-
dia, 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 con-
sultants, to prepare a report concerning the display on the ban-
ners and signs on the overpass on February 2. McCaw re-
viewed the 24-page report the day before she was to testify in
this proceeding, in particular the less than 2 pages of the report
that dealt with safety issues. In that regard the report conclud-
ed, “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 peo-
ple for that activity as I have described it?” (Emphasis added.)
McCaw answered, “Yes.” Interestingly, earlier in the proceed-
ings 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 important-
ly 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 celebrat-
ing 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 mis-
conduct.
The News-Press contends that Burns in not entitled to a full
remedy due her because of several incidents. First, at the hear-
ing 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.
The Union provided the News-Press with some documents
that the News-Press had subpoenaed, one of which was an e-
mail stream between Burns and Rhonda Manville beginning
November 5. The News-Press introduced this evidence to sup-
port its contention that Burns should not be entitled to backpay
and reinstatement. In the e-mail 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 en-
gaged 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 kiss-
es.

Rhonda

Isn’t it sad about Ruthie? To me she just seemed in-
vincible, and it is such a big loss. She was one of a kind.

I note that this private email exchange between a friend obvi-
ously 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 Re-
gional 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.

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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 502
outside of the context in which they occur. Nothing in this
passing reference serves to deprive Burns or the other discrimi-
natees 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
antiunion 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 they 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 1-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 con-
taining quotes from Hobbs. In context, nothing is these letters
remotely approaches the type of misconduct that would warrant
a denial of reinstatement or backpay. 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 evi-
dence that it did not have. The Union filed a motion to prohibit
or restrict the News-Press’ questioning of discriminatees and
others for postdischarge 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 ef-
fect of discouraging employees from engaging in union activi-
ties. 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 discour-
age 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 state-
ments 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, 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 de-
veloped by the Board and the General Counsel.
VII. SUBPOENA ISSUES
All parties raised a number of subpoena matters that I dis-
posed 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 em-
ployees 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 state-
ments for the purpose of cross-examination.15 The General
Counsel filed a petition to revoke those subpoenas and the Un-
ion filed a motion for sanctions against the News-Press for
having sought them. During a pretrial conference, call I grant-
ed 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 con-
fusion 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 dis-
criminatees 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 Un-
ion and the News-Press had agreed upon in the earlier hearing
before Judge Schultz in order to save the parties time and ex-

15 The General Counsel did not amend the complaint to allege that
the requests for the witness statements violated Sec. 8(a)(1).
SANTA BARBARA NEWS-PRESS 503
pense. 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 imposed.
However, except as indicated below I conclude the failure to
supply those e-mails 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 e-
mails and she deletes them every couple weeks. After his ini-
tial testimony at the trial, the News-Press served Schultz with a
subpoena duces tecum covering the email messages. He com-
plied 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
e-mails were not among them. She credibly testified that she
receives so many e-mails 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 cov-
ered 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 communi-
cations.
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 contro-
versy in this case she was asked to look for it again, discovered
it, and provided a copy to the News-Press. She credibly testi-
fied 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 pro-
cess 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 e-mails.
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 Au-
gust 3. Kuznia identified some material covered by the sub-
poena and described those documents to Gottlieb. However,
the material described by Kuznia to Gottlieb and then forward-
ed 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 tell-
ing 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 forgot-
ten that on August 13 Kuznia had sent him the copy of the
“peeps” email. Gottlieb said:

I apologize to the Court. This was an inadvertent failure to
fully disclose and it was not meant, in any way, to hide any-
thing 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 under-
standing that this type of conduct should not be repeated in the
future.
CONCLUSIONS OF LAW
1. Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a) (1) and Sec-
tion 2(6) and (7) of the Act by:
(a) Threatening to discipline employees if they engage in un-
ion and protected concerted activity.
(b) Coercively interrogating employees concerning their un-
ion activities.
(c) Instructing employees to remove buttons from their cloth-
ing and signs from their vehicles reading “McCaw Obey the
Law.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 504
(d) Terminating Robert Guiliano because he refused to
commit an unfair labor practice.
(e) Engaging in surveillance of the union activities of em-
ployees.
2. Respondent has engaged in unfair labor practices affect-
ing 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 be-
cause she supported the Union.
(c) Giving lower evaluations to Anna Davision, Dawn
Hobbs, Melissa Evans, and Karna Hughes because they en-
gaged in union activity, thereby depriving them of annual per-
formance 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 activi-
ty.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent having discrimina-
torily discharged employees, with the exception that follows, it
must offer them reinstatement and make them whole for any
loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as comput-
ed 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 backpay 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 bonus-
es, 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 non-
existent reasons given to support the lower evaluation I con-
clude that, consistent with earlier years, each of these discrimi-
natees 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 proceed-
ing 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 Hori-
zons for the Retarded, supra.
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 Section 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 journal-
istic integrity is solely one for management may reveal con-
cerns 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 percent of the unit and 25
percent 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 Sec-
tion 8(a)(1); taken together they show the News-Press wide-
spread, general disregard for the fundamental rights of the em-
ployees. 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 re-
quiring Steepleton to read to the employees, or at the option of
the News-Press, to have a Board agent read, the notice to em-
ployees 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.
[Recommended Order omitted from publication.]