Talk that the National Labor Relations Board prosecuting team may have reached the end of their witness list began circulating Wednesday with the calling of Teamsters Union organizer Marty Keegan that morning. If he is indeed the last witness, as some have rumored, it would be union attorney Ira Gottlieb’s turn to begin calling witnesses in the federal labor law case against the Santa Barbara News-Press. It is expected that his witness list will be exhausted in less than two days. Then, of course, the attention will be turned to the other table, where attorney Barry Cappello will work through his list of witnesses, whose testimony he thinks will prove that the newspaper’s management was in the right in their decisions to fire eight reporters. Regardless of the timetable, it certainly is clear the hearing won’t be done anytime soon, despite the fact that this week was originally slated to be the last.
Former reporter Melissa Evans was back on the stand to begin the morning, being cross-examined by News-Press attorney Matthew Clarke. In a review of her performance evaluation, Clarke pointed out under a section detailing Evans’ use of time and resources she scored only a 2.5 out of 5. Evans “sometimes seems caught-up in things other than work, affecting her time here in the office,” read the review from associate editor Scott Steepleton.
Clarke asked if there was something in her personal life which might have contributed to her being distracted, and Evans explained that she took a medical leave for five weeks in 2006. During that time she didn’t do any writing. When she was in the office, she testified, her work wasn’t affected by her personal life, and part of the reason she took the leave was to prevent that from happening. Clarke pushed more, asking again if her medical problems affected her time at work. “It affected my time in the office in that I was gone,” Evans responded. Clarke continued to push, repeating his question. He then pointed out that during her time off is when many of her colleagues left, leaving the paper understaffed and in a situation she was needed. “You were absent,” he said, matter-of-factly.
NLRB attorney Stephen Wylie re-examined Evans, when she again repeated reasons why the group of employees attempting to join a union had taken a look at a contract between Newsday and its employees which had a provision for byline protection, which allows reporters to remove their name from stories that they deem to be either so heavily edited that they depart from the original intent or influenced by the publications business side in a way that violates the report’s sense of journalistic integrity. “It certainly gives us power as reporters to protect ourselves,” she said. “Our names are on these stories.”
After Evans’s testimony, Wylie wanted to submit evidence in the form of a DVD copy of a 30-second KSBY television story on the fired reporters hanging a banner on the Anapamu Street footbridge-an act which got six of them fired for disloyalty in February. Six lawyers, three from each side, gathered around the witness stand to watch the video on Wylie’s computer. Attorney Michael Zinser, a Tennessee-based lawyer who is part of the News-Press contingent of lawyers, not wanting to miss out on the action, got off his seat on the bench behind the News-Press table and watched the video with them.
News-Press community affairs writer Karna Hughes, who is still with the paper and described herself as pro-union, took the stand next. Hughes is in charge of both writing for and laying out the Public Square section, which used to run three-fourths of a page for five days a week, with a shorter version on Saturday. In July, it was shortened to about one-third of a page, and when Dr. Laura Schlessinger began writing, the section was reduced to only four days a week, she testified. In Clarke’s cross-examination of Hughes, he tried to get at how long it took Hughes to perform her duty. Hughes later testified that at no time did Steepleton complain about her getting her section in on time until a December 2006 meeting regarding her performance evaluation. Until then, Hughes had been under the impression her section was due the night before it was to go in the paper, but that two days was preferable. In the meeting with Steepleton, he explained that she was wrong, and not doing her work in a timely manner, she said. Steepleton also made remarks in her performance evaluation that she was antagonistic and difficult at times to work with, something she said he had never told her about.
Clarke later brought up the now well-known “peeps” email, where he talks about rocking the house in delivering a letter to News-Press management. Hughes sang a similar tune to several who had testified before her, saying she couldn’t recall whether she had received the email or read the email, although she had been addressed as one of the recipients. The email also wasn’t included in a list of emails-all from her work account-she provided as part of a subpoena. In a letter to News-Press attorneys, Gottlieb wrote that Hughes “possesses no responsive documents other than memoranda generated by Ampersand and documents already in its possession. Clarke claimed that either Hughes or Gottlieb were again withholding documents from the News-Press-they’ve argued this or tried to prove it with previous witnesses-and that they should be able to see them. But Gottlieb suggested Hughes didn’t save any of the emails on her personal account, and that News-Press attorneys “assume the worst” and “accuse before they know all the information.” Judge William Kocol told News-Press attorneys to argue in a brief how they didn’t believe Hughes complied with her subpoena.
After a break for lunch, Hughes testified a bit more, before it was Keegan’s turn. Keegan came up with the idea of a subscription cancellation drive, helped with the print and radio advertisements, and ordered and paid for “Cancel Your Newspaper” banners, he testified.
Cappello had a Teamsters representative bring in one of the banners, which was unfurled and displayed by Clarke and fellow News-Press attorney Duggan Kelley, which got some comments. “Can I get a picture of this to send to Wendy?” Gottlieb mused. “If they let me bring my phone in here I’d take a picture of this,” Cappello said, then turning to the judge. “Do they let you bring your phone in?”
A lengthy discussion, confusing at times, soon followed, centered around whether the reporters were participating in illegal activity by hanging the sign on a chain link fence on the footbridge overlooking the 101. Testimony from Keegan and others wasn’t able to clarify whether the signs and banners had been attached to the fence, or held up by the participants. If the sign was indeed attached by pins or wires, the group would have been breaking the law. Kocol and Cappello went back and forth, arguing whether the newspaper deemed the reporters’ actions unlawful and that that judgement was the reasoning behind the employees’ discharge or whether the reporters were fired for being disloyal. Cappello said both circumstances could, and did, lead to the newspaper discharging the employees. “Unlawful activity by a union is unprotected activity,” Cappello said, contradicting the union’s argument that the activity on the footbridge was indeed protected. Nothing was resolved, and Kocol said he would sleep on the matter and decide in the morning, but if he says that the matter is indeed irrelevant, it means a large portion of Keegan’s testimony up to this point is also irrelevant.
Multiple times with Keegan on the stand, Cappello suggested it would be a good time to break for the day, but the judge wasn’t allowing Cappello to dictate the schedule. Keegan will be back on the stand Thursday morning, with Cappello promising late Wednesday that he had plenty of cross-examining left for Keegan. With a night to stock up, Cappello will no doubt come fully-loaded tomorrow for Keegan.