As the federal labor law case against the Santa Barbara News-Press enters what was supposed to be its final week, the heart of the case is becoming ever apparent. While it’s uncertain how long the case will extend - the defense, led by A. Barry Cappello, has yet to call one witness - it is certain that Judge William Kocol will have to decide whether he thinks that reporters demanding journalistic integrity is a protected union activity.
That was the topic of debate for the attorneys throughout the day on Tuesday, September 11, and arguments about it were entered in the morning and afternoon in between the occasionally funny testimonies of Colby Frazier, Starshine Roshell, and Melissa Evans. (Tom Schultz also made a brief appearance.) Cappello had filed a brief on Monday that argued such a fight was not protected by national labor laws.
So first thing Tuesday morning, Teamsters attorney Ira Gottlieb - who sits at the same table as the National Labor Relations Board attorneys Brian Gee and Steve Wyllie - gave an oral argument on the matter. “It seems to me that the campaign itself is the protected activity,” said Gottlieb, arguing that the reasons for forming the union aren’t as critical as the formation of the union itself. Once bargaining starts, then questions about what is appropriate to include in a contract can begin.
For his part, Gee did not seem to buy Cappello’s argument whatsoever, and had not prepared much of a counterpoint. Judge Kocol issued a polite warning to Gee, however, explaining that some activities by organized employees, such as calling for the replacement of a general manager, are not protected.
“I see that as an issue,” said Kocol, “and if you don’t, you might be right when I make my decision:but I doubt it.” Kocol continued, “It somewhat surprises me:that you haven’t seen this as an issue.”
It seemed to be a setback for the feds, until later in the afternoon, when Gee’s colleague Wyllie delivered his argument on the issue. Wyllie contended that “the object all along has been to obtain a contract to be represented by a union.” That contract would then detail working terms and conditions, of which journalistic integrity would be included.
The ethics are a working condition for journalists, argued Wyllie, because of such instances as the Rob Lowe incident, where reporter Camilla Cohee was punished for reporting Lowe’s address in a planning story. And when colleagues see “a reporter disciplined for doing her job,” then a newsroom’s integrity becomes a working condition. “This case is not about one incident of breaching the wall,” explained Wyllie. “It’s about the wall.”
Wyllie argued that, after the Lowe incident sent “shockwaves reverberating through the newsroom,” reporters had to start worrying whether their stories would be unfavorable to the friends of owner Wendy McCaw. Explained Wyllie, “When the publisher is breaching the wall and employees are subject to discipline, it clearly affects the terms and conditions of employment.”
Wyllie then explained that a newspaper is not like another product, in that the reputations of the reporters themselves are at stake. “If this is a move to become a vanity press,” said Wyllie, “then it does affect the employees and their reputation in the community.” As a means to combat such an outcome, the organized News-Press reporters discussed “byline protection” clauses in their future contract, which would allow writers to take their names off of stories if they did not agree with the editing changes.
Cappello’s brief response ended with one of his recurring points in this case. “We believe that the issues of ethics and journalistic integrity,” said Cappello, “are issues of the publisher and not the reporters.”
Can We Get a Witness?
Aside from the arguments, Tuesday featured testimony from Colby Frazier, who left the News-Press to work for the Santa Barbara Daily Sound about a year ago; former columnist/feature writer Starshine Roshell, who now writes for The Independent and other publications while teaching at Santa Barbara City College; and fired reporter Melissa Evans, who covered religion and social issues for the paper and now works at a newspaper in Long Beach.
Frazier was called by the Feds simply to confirm that News-Press attorney Barry Cappello had made some allegedly intimidating statements in a newspaper article. Cappello objected heavily to the testimony, saying that the charge previously filed in this matter against him had been dropped. The judge allowed the testimony, however, because there is a broad cease and desist remedy included in the federal complaint. It took about 15 minutes.
Then came some bits of comic relief from Roshell, who worked for the paper from August 1995 until October 2006, won a statewide award for her column writing, and now pens this weekly column for The Indy. The Feds are claiming that Roshell’s column was killed by the News-Press due to her union involvement; the newspaper contends her column was killed as part of a paper-wide purge. The columnist had some fans in the courtroom during her testimony, including her husband, who was working on a pencil sketch of the scene under the headline “Can I Get a Witness?”
Roshell spoke about her involvement in rallies, including the now infamous duct tape-over-the-mouths rally, which she wrote about in a column a few weeks later. The first laughs came when she read from that column, which explained the tape doesn’t taste good, but that it’s great for being loud without saying anything and could “save a bundle on lip waxing.”
When reassignments came down the line, Roshell explained that she wanted to be a team player, so long as she got to keep her column. In a conversation with her supervisor Andrea Huebner, she was told that her column would stay put. Then only a few days later, she learned from Huebner while in Starbucks that the column was being killed.
She confronted top editor Scott Steepleton about why, and he said that they wanted “reporting, reporting, reporting.” She pressed further, and Steepleton told her that there would no longer be personality columns because “every time we put one of our opinions in the newspaper it leaves less room for other opinions.”
So she asked about Dr. Laura, who had been recently hired. Steepleton said it affected staff writers only.
Then what about sports?, she asked. “Who knows,” said Steepleton, “maybe sports is next.”
What about reviews?, she asked, where opinion is required. Reviews are different, explained Steepleton, because they are specific, while a column is “someone’s random whatever.”
Attorney Brian Gee then shifted the testimony to the July 6, 2006 walk-out. What did Starshine say to Travis Armstrong that day? “I said, ‘Fuck you Travis.’” Did Starshine hear Dawn Hobbs say that, as Cappello’s team is claiming? “I don’t recall her saying that.”
It was then News-Press attorney Matthew Clarke’s turn. He quickly visited the “Fuck you, Travis” incident. “How did you say it?” he asked, getting some of Starshine’s courtroom fans to gasp and say “Oh my God” out loud. Judge Kocol jumped in, because the day before, Dawn Hobbs was uncomfortable saying the phrase in a court of law. “Do you feel awkward:?” asked Kocol.
“Not at all,” answered Roshell, clearly happy to be able to say it once again with Armstrong in the room. (As the News-Press‘s official representative, Armstrong sits amidst white boxes of files alone in the front row behind Cappello.) With that, Roshell explained that Armstrong was across the room from her. “So I said, ‘Fuck you Travis!’” It was a few decibels below a proper yell, but certainly louder than your everyday conversation.
Clarke then went through the list of other columns that were cancelled - and those that were not, such as John Zant and Maria Zate‘s column, both union supporters. (Neither the Feds nor the Teamsters later asked whether Zant or Zate had written about the campaign as Roshell had - it might have been a worthy question.) Clarke’s point is that Roshell’s cancellation was part of a company-wide purge, not merely retaliation for her union support.
And then, in what could only be considered a means of covering all his bases, Clarke shifted his attack and started suggesting that Roshell’s column may have been killed for its content too. Insinuating that her topics and writing were rather salacious, a disapproving Clarke went through a list of her columns, including four that she later wrote for The Independent. Titles, which got some chuckles in the crowd, included “Geeks Are Hot,” “Adventures in Babysitting” (which featured the word “crap”), “Cougars on the Prowl,” “Putting a Stop to Menstruation. Period,” “Unveiling the Truth about Lusty Bridesmaids,” “Nipping Sniggers in the Bud,” “Designer Vaginas,” “Going Gay: Why Should Preachers Have All the Fun,” and “Everything I Know about Men I Learned at Strip Clubs.”
Clarke had a specific question about “Kiss My Keister,” asking, “What is a keister?” Roshell responded, “That is a rear end, sir.”
After that silliness, Gee asked whether Roshell had even been asked to tone any of those columns down. “Never.” Ever reprimanded? “No.” Then he asked about her former editor Gary Robb. Did he tell her to tone it down? He did, Roshell confirmed, but before the columns ever went to press.
Fired reporter Melissa Evans was called next. (This was directly after Wyllie gave his afternoon argument about the ethics issue discussed above.) After going through her credentials and touching upon the basic nature of keeping bias out of the newsroom, attorney Steve Wyllie asked about whether she had looked at other newsroom contracts during the organizing of their union. They had.
Wyllie then produced a 44-page contract between Newsday and its staff, which Evans had examined “early on” in the union drive over lunch one day at Ruby’s. Against objections, Wyllie was able to enter a few sections of the contract into evidence, including the clause about “byline protection,” which allows a reporter to pull his or her name off of a substantively edited story. Evans liked this contract because of that clause, which “gave us the right to raise objections” to edited stories.
Wyllie then brought out Evans’ performance review from 2006, which made her angry because it was so low. She had been criticized for productivity, but had anyone ever told her to write more stories? No, she said.
When Clarke has his time with Evans, who is returning to finish her testimony on Wednesday morning, he went through the specific demands that the workers had listed in various letters. Was “byline protection” in any of them? No, she explained, but then offered that was because “it was one of the tools we thought would be useful” toward achieving their larger goal. As Clarke focused on the specific wording of their demands, it seemed clear that Evans and her colleagues believed the specific call for “byline protection” would be something reserved for the bargaining table.
Tom Schultz also made a brief appearance on Tuesday to speak about documents he had submitted as a response to a subpoena issued to him last week. (He was also subpoenaed last week in the case that the News-Press is fighting against The Independent for alleged copyright infringement.) Cappello asked Schultz about emails he had written related to the August 24, 2006 employee march to Wendy McCaw’s office. Schultz used the words “sonic boom” and “blitzkrieg,” which Cappello suggested were not reminiscent of the quiet, professional march the employees had testified to.
Cappello also brought up the “storm troopers” reference in another email. But due to the Teamsters attorney Ira Gottlieb’s objections, it quickly became apparent that the phrase was a satirical riff on Travis Armstrong, who had used the phrase in the January NLRB union vote certification hearings.