On Wednesday morning, the News-Press‘ silence on the recent union developments was broken when the newspaper’s attorney Barry Cappello (pictured) spent about a half-hour discussing the matters over the telephone.
On administrative law Judge William Schmidt’s (pictured) recommendation to the National Labor Relations Board that the September 27 union vote by the newsroom be certified, Cappello urged everyone to remember that it is “of course, just a recommendation, and not a final ruling.” Cappello attorney explained that the newspaper’s legal counsel in this matter, who are attorneys David Millstein and Sandra McCandless, are currently reviewing whether or not to file “exceptions” to the ruling, which would be disagreements to the judge’s findings. (It’s not quite like an appeal, as had been previously reported, though the option of appeal based on the NLRB’s final ruling of the union vote is also being investigated.) If exceptions are warranted, those would then be submitted to the NLRB as addendums to the judge’s recommendation. Then the NLRB examines the whole package before making its final decision.
Additionally, Cappello took exception with stories that played up what Judge Schmidt called the “extreme embellishments” of Travis Armstrong and Scott Steepleton, arguing in those finding constituted mere paragraphs of a 22-page report. The attorney argued that while Armstrong’s use of the phrase “storm troopers” may have seemed exaggerated to Judge Schmidt, Cappello could imagine what it might be like to have 10 to 15 employees march into someone’s office, and that it might be somewhat intimidating for Armstrong.
But such intimidation tactics, explained Cappello, hold less sway with a administrative law judge when a union vote is so overwhelming, such as it was here with a 33-6 vote. When asked if the overwhelming vote was evidence that perhaps none of this should have even been contested, Cappello answered that he was merely referring to the intimidation ruling, and that “there were all sorts of other grounds” for the objections to the hearing.
When asked whether the News-Press management would be ready to sit down at the table and hammer out a contract if the NLRB accepts Schmidt’s recommendation, Cappello said, “You’re asking me about something that I cannot comment on. I am only commenting on the legal process. When it gets to that point, if the News-Press‘ position is that the NLRB ruling is final or if it’s against it, then that decision will be made.” So is the News-Press considering an appeal of the NLRB final ruling if it doesn’t go the newspaper’s way? Cappello also could not comment on that because he didn’t know, but said that the option of appeal is currently being examined by the NLRB legal counsel.
Response to Unfair Labor Practice Complaints Being Filed
When Cappello contacted The Indy‘s offices on Wednesday morning, he was initially only prepared to chat about the union certification recommendation. But, being the quick-thinking barrister he is, Cappello spent a few seconds reviewing the March 13 letter from the NLRB’s attorney announcing that five additional complaints were being filed against the News-Press, and then said he could speak generally about it but would have to be briefed before delving into specifics.
Were the filing of these complaints, as the Teamsters attorney Ira Gottlieb had suggested, analogous to a District Attorney deciding to prosecute someone? Cappello explained that civil matters, such as this one, were different from criminal matters, such as what a DA would deal with. As such, Cappello explained that DAs tend to be “extraordinarily careful” because the implications – someone going to jail – are so extreme. Cappello, insisting that he was speaking generally and not addressing the NLRB specifically, continued, “Civil agencies don’t necessarily have the same screening that goes on in a DA’s office.” So Gottlieb’s analogy, according to Cappello, was not quite perfect.
However, Cappello did freely admit, “From the standpoint of fact that this is a governmental organization that is enforcing the law, they do review and do decide whether they have a chargeable case under the law that they are enforcing, which is the National Labor Relations Law. They have deemed there are five matters that they have been authorized to bring a case on.”
But that doesn’t mean it’s a sure winner, explained Cappello. He continued, “Cases are easy to bring, and not necessarily easy to prove. Most of my career has been spent as a plaintiff’s lawyer, and one of the things you learn is simply writing a complaint oftentimes is just the beginning of the matter:.The mere fact that the union is happy about this – I wouldn’t be happy or unhappy or think it’s a slam dunk. The issue is, it’s a case, it’s going to be prosecuted, it’s going to be vigorously defended by the News-Press, this firm will be involved in that defense, and at the end of the day, a decision will be made by a fact-finder. That’s when the issue is decided – not when the case is filed.”
Cappello took aim at the union’s positive statements on the matter, explaining, “The union’s job is to keep its union employees whipped up into a frenzy, and that’s what they’re doing, and they continue to do that.”
When asked about the timeline now, Cappello briefly addressed the 10(j) injunction, and explained that the NLRB’s “Division of Advice” could determine that it’s not warranted, which would put this on administrative path much like the union certification hearings. Or rather, if it does qualify as requiring a 10(j) injunction, it would be taken up by a federal judge and worked into his calendar. Since it would be an injunction, it would take priority. When asked whether a 10(j) would halt all employment actions on the part of the News-Press, as had been reported, Cappello said that could happen if a temporary restraining order is issued, which would typically last until the hearings began.
Cappello noted that the union had also filed a complaint about attorney David Millstein barging into the meeting between the union and News-Press advertisers at the public library. “The NLRB chose not to do anything with regards to that whole charge,” said Cappello. “It might be interesting to see an unbiased journalist comment on the fact that the NLRB has chosen not to look any further at that.” (The attorney was assured that such would be included in this article.)
Cappello himself was named in one of unfair labor practice filings by the Teamsters, which the regional NLRB attorney has passed onto the “Division of Advice” to determine whether the attorney’s alleged threats were in violation of federal law. Cappello claimed that there is a specific federal exemption allowing management to speak in the ways that it did. “After the firings, news reporters such as yourself wanted comments on the News-Press‘ position,” explained Cappello, who said that he spoke to the Associated Press, Martha Sadler from The Indy, and others. “The union took umbrage at the fact we could even speak.”
Then why did the NLRB send it to the “Division of Advice” rather than just toss it out, like it had the Millstein-barging-in filing? Cappello believes, “My guess is that [the NLRB] has read what the union claims I said, and that they didn’t do an investigation to determine what I did actually say.”
At the end of the interview, Cappello extended an offer to chat anytime. Expect more of his comments on this blog in the days, weeks, and months to come.