Santa Barbara News-Press

National Labor Relations Board - Administrative Judge Opinions

Mar 8, 2007

31-RC-008602 (N.L.R.B. Mar. 8, 2007)

JD(SF)–06-07
Santa Barbara, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
AMPERSAND PUBLISHING, LLC, d/b/a
SANTA BARBARA NEWS-PRESS
Employer
and 31-RC-8602
GRAPHICS COMMUNICATIONS
CONFERENCE
Petitioner
Sandra McCandless, Atty. (Sonnenschein Nath & Rosenthal LLP)
and David Millstein, Atty. (Millstein & Associates), both of
San Francisco, CA, for the Employer.
Ira L. Gottlieb, Atty., (Geffner & Bush), Los Angeles, CA,
for the Petitioner.
ALJ REPORT AND RECOMMENDATION TO OVERRULE
EMPLOYER’S OBJECTIONS AND CERTIFY PETITIONER
WILLIAM L. SCHMIDT, Administrative Law Judge: Pursuant to a petition filed on
August 10, 2006,1 and a Stipulated Election Agreement thereafter executed by the parties, a
secret ballot election was conducted under the supervision of the Regional Director for NLRB
Region 31 on September 27 in a unit of employees the parties stipulated to be appropriate.2
The tally of ballots served on the parties following the ballot count reflected approximately 42
eligible voters, 33 votes cast for the Petitioner (Graphic Communications Conference or GCC),3
6 votes cast against Petitioner, and 1 challenged ballot. The challenged ballot was insufficient to
affect the election results.
On October 3, Ampersand Publishing, LLC, d/b/a Santa Barbara News-Press (SBNP,
Employer, Company, or News-Press) filed four objections to conduct affecting the election

1 If not shown otherwise, all dates refer to the 2006 calendar year. “E” and “P” references
refer to the Employer exhibits and Petitioner exhibits, respectively. The “T” references are to
the transcript pages and lines. “Br.” references are to pages in a brief.
2 The unit includes all full-time and regular part-time employees in the news department,
including writers, reporters, copy editors, photographers, and graphic artists employed at the
Employer’s Anacapa Street facility located in Santa Barbara, California, but excludes all other
employees, guards, confidential employees, supervisors as defined in the Act, as amended, and
writers and editors engaged primarily in working on the opinion editorial pages.
3 The GCC affiliated with the International Brotherhood of Teamsters in early 2005.
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results. Following his investigation, the Regional Director concluded that the Company’s
objections raised substantial and material factual and legal issues best resolved following a
hearing. Accordingly, Regional Director ordered an objections hearing and directed that a
report and recommendation concerning the objections be filed with the NLRB.
I conducted the hearing ordered by the Regional Director in Santa Barbara, California,
on January 9 and 10, 2007. After considering the entire record, the credibility of the witnesses,
and the briefs filed by the parties,4 I recommend that the Board overrule all objections and
certify the Petitioner based on these
Findings of Fact
A. Background
Every case has a context. A clash between the owner-publisher’s vigorous
management style and the adopted professional standards of several newsroom editors
(generally statutory supervisors) and writers (generally statutory employees) dominates the
context here. It provided the impetus for most of the News-Press editors to suddenly resign and
for the newsroom employees’ effort to gain union representation. As the upheaval progressed,
members of the community chose sides.
A lingering dispute about the divide between the paper’s news content and its
business/opinion operations came to a head in late June and early July after Wendy McCaw,
SBNP’s owner and co-publisher, reprimanded two members to the news staff for a story
published in the News-Press about a local zoning hearing. The story contained the future home
address of a celebrity actor, the central figure in the zoning hearing. The reprimands sparked
the resignation of several top editors on July 6, including the paper’s executive editor, its
managing editor, its deputy managing editor, its city editor, its business editor, and its sports
editor. Other protest resignations followed.5
Co-publishers McCaw and Authur von Wiesenberger were away on vacation when the
July 6 resignations occurred. Before leaving, they appointed Travis Armstrong, the editorial
page editor, as the acting publisher during their absence. Around 9:30 a.m. on July 6
Armstrong approached Jerry Roberts, the executive editor who had just resigned, as he sought
to bid farewell to the newsroom staff for the purpose escorting Roberts from the building. A hail
of expletives directed toward Armstrong from two, three, or maybe more of the newsroom
staffers began. Jane Hulse (aka Jane B. Chawkins), the city editor who also resigned that day,
was, in Armstrong’s words, “just out of control.” After walking about twenty feet, Armstrong left
the task of escorting Roberts from the building to human resources director Yolanda Apodaca.
Armstrong then returned to the newsroom where he directed the sobbing Hulse to leave also
because she had “quit” that day. He then addressed the rest of the staff present saying that
“we're going to move to hire replacements and we'll move on.” T139: 7-T141: 18.
That evening several newsroom employees met with GCC organizer Marty Keegan for
the first time. The ensuing organizing effort involved numerous meetings between Keegan and

4 The briefs incorrectly denote Ampersand Publishing, et al, as “Respondent.” In this
representation proceeding, that business entity is designated as the “Employer.”
5 Thus, five staff writers, a columnist, and a copy editor resigned in the days following July 6.
Exhibits E-1 and E-18.
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the unit employees; public rallies that occasionally featured street theatre,6 press conferences
and radio appearances by Keegan and GCC’s attorney; union appeals to advertisers and
subscribers to boycott the SBNP until it bargained an agreement with newsroom employees,
two or three in-house demonstrations by the newsroom employees; and an active website
(savethenewspress.com) endorsed by Keegan and maintained by unit employees supporting
the union. SBNP’s publicist characterized these legally protected activities as an “all out war.”
For its part, the SBNP issued several in-house memos opposing unionization, published
editorials attacking the Teamsters, hired a labor consultant to conduct numerous meetings
seeking to persuade employees to vote against union representation,7 conducted meetings with
supervisors to inform them of their role during the organizing campaign, and hired an outside
publicist to provide damage-control assistance and to publicize SBNP’s position on the union
organizing activities.
Many in the Santa Barbara community also became actively involved in the upheaval at
the News-Press. Early on the mayors from Santa Barbara and a coupe of nearby communities
as well as several city council persons staged their own rally at the Plaza protesting the events
that lead to the resignation of the editors and several popular writers. Press coverage of the
News-Press turmoil began locally but quickly spread to area publications and eventually to
nationwide newspaper and television outlets. Popular cyber sites focusing on events in the
Santa Barbara area became consumed with the News-Press turmoil.
One such website, BlogaBarbara, provides the framework for Objection No. 1. A person
using the pseudonym “Sara de la Guerra” owns and hosts BlogaBarbara.8 Her postings
generated numerous comments from persons who almost always chose to use pseudonyms or
to remain anonymous altogether. Since BlogaBarbara does not require readers to register,
identification of those who submit comments is not possible by any ordinary means. From mid-
year onward several of de la Guerra’s postings on BlogaBarbara related to the controversy at
the News-Press. These postings generated numerous comments about SBNP’s ownership and
senior management as well as the newsroom organizing drive.
B. Events Relevant to the Objections
Discussions about the editors’ displeasure with SBNP’s current ownership9 and the
possibility of unionizing the newsroom preceded the July 6 resignations. Deputy managing
editor Don Murphy, who resigned on July 6 after nineteen years at the News-Press, recalled

6 Usually, the public rallies occurred in De La Guerra Plaza (Plaza) directly in front of the
News-Press headquarters in downtown Santa Barbara. One of the more well-publicized street
theatre skits included the appearance of newsroom employees with mouths sealed by duct tape
in protest of rules barring employees from public discussions of various News-Press issues
without prior management approval. In a complaint that issued on December 27, the NLRB
General Counsel alleges certain of these rules violate the Act.
7 The Employer’s labor consultant conducted most of the captive audience meetings with
the employees in the two-week period immediately prior to the election. T163: 17-24; T165: 1-3.
8 To date, no one knows the true identity of Sara de la Guerra. The Employer correctly
noted in its brief that I had a posthearing exchange with an Electronic Frontier Foundation (EFF)
attorney claiming to represent Sara. Employer’s Brief 16, fn 19. Counsel received copies of this
correspondence. In my judgment, it has no relevance to the issues at hand but it will be
included in the record submitted to the Board as ALJ Exhibits 1 (EFF letter) and 2 (my reply).
9 The New York Times organization sold the New-Press to its current owner in 2000.
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general discussions prior to GCC’s organizing effort about union representation for the
newsroom employees. Thus, on one occasion in June “when the situation wasn’t so good”
Murphy spoke to News-Press columnist Starshine Rochelle on the loading dock. When the
subject of their conversation turned to unionization, Murphy told her that he would probably be
leaving the paper but if he was still at the paper and he was not management, he would be
thinking about a union. T195: 1-13.
By late in the afternoon on July 13, a week after the core of the editorial staff and some
of the staff writers resigned, a group of newsroom employees prepared a letter addressed to
acting publisher Armstrong and delivered it to him in his office. The letter states:
We, the newsroom employees of the Santa Barbara News-Press, can no longer remain
silent about the intolerable 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 separation between the opinion/business side of the paper 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 editor.
3. Negotiate a contract with newsroom employees governing our hours, wages, benefits
and working conditions.
4. Recognize the Graphic Communications Conference of the International Brotherhood
of Teamsters as our exclusive bargaining representative.
We look forward to discussing these issues further with you.
Thank you.
The group delivering the letter included more than 15 and perhaps as many as 20
newsroom employees led by reporters Barney McManigal and Josh Molina. Normally,
Armstrong leaves his office door open. When the group arrived with the letter, six or seven
employees entered the office; the rest remained in the narrow hallway outside that divides
Armstrong’s office from the cubicles where his staff works.
Armstrong, who was engaged in writing an editorial at the time, told the employees that
he found the gathering in his office “overwhelming and intimidating.” He said that he asked the
group “to do this at another time and another place.” When one of the employees handed the
letter to him, he put it on his desk and remarked that “this is making me very uncomfortable.”
Armstrong said that the group just stood there for what seemed to him “like an eternity.” He
estimated the engagement lasted three to five minutes. However, Armstrong never specifically
directed the employees to leave his office and no evidence would reasonably support an
inference or a factual finding that the employees engaged in any form of loud, unruly, disruptive,
destructive, or overtly threatening conduct. T123:11-125: 9. Similarly, no evidence shows that
the Employer later disciplined any employee for participating in this letter-delivery exercise.
Thomas Schultz, a staff writer active with the union organizing effort, accompanied the
employee group on July 13. He was among those who entered Armstrong’s office; others he
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remembered inside the office were reporters McManigal, Molina, and Dawn Hobbs. Schultz
also recalled that Armstrong told the group that he felt uncomfortable with “this” after the letter
was presented to him. Schultz told Armstrong that they wanted a response by 5 p.m. the
following Monday.10 According to Schultz, the entire visit took a minute or less but when the
employees began to leave, Armstrong asked to speak privately with McManigal. McManigal
remained behind but the others left.11 T296: 23-T299: 2.
The first union rally at the Plaza occurred during the lunch hour on Friday, July 14.
About 300 persons attended. Even more appear to have attended a noontime rally at the same
location the following Tuesday, July 18. Whether the GCC organized this latter event is unclear.
However, the featured speakers at the July 18 rally included the mayors from Santa Barbara
and the nearby communities of Goleta (where SBNP’s printing facilities are located) and
Carpenteria. Apparently, some of these public officials had axes to grind with the News-Press.
Exhibit E-14.
Andrea Huebner, the life section editor at the time, went to both rallies as a spectator
and not as a participant.12 She referred to the July 18 event as a “peoples” rally rather than a
union-sponsored occasion. At one of these two rallies, she assisted life section intern Bethany
Hopkins who had been assigned by the Scott Steepleton, the new city editor, to cover the event
as a reporter.13 Huebner spent about 20 minutes at the rally she attended with Hopkins and
spoke to no other employees other than Hopkins. Her discussions with Hopkins primarily
related to instructions for “covering the event” such as getting the names of those who spoke,
getting a count of the number in attendance, and the like.
Steepleton saw Huebner in the audience when he looked out the window on the way to
a manager’s conference. Huebner claimed she never knew about a manager’s conference
scheduled for that particular day. No evidence establishes that Steepleton or any other
manager ever spoke to Huebner about her presence at the July rallies or her absence from the
managers’ meeting that allegedly occurred.

10 Petitioner’s counsel implied in his diary posted on a website that the Employer responded
to the employees’ July 13 letter by telling them that any representation question had to be
settled through the NLRB. Exhibit E-7: 2. McCaw made that same point in her wide-ranging
commentary published in the News-Press on July 25. Petitioners Exhibit 8: 1. McCaw also
made it clear that the Company would not return the former editors and reporters as requested
in that letter.
11 The variance in the length of time this activity took may well be explained by the fact that
Armstrong might have included the time that he spent with McManigal. Schultz and two or three
other reporters waited outside in the hallway until McManigal finished and then walked back to
the newsroom with him. Presumably the others returned to work or left the building earlier.
12 About two weeks following her September 12 termination from SBNP, Huebner also
attended the last union-sponsored rally, again as a spectator. This rally, held on Sunday,
September 24, was the last major union event prior to the election.
13 I have concluded that Huebner is confused in her recollection that she assisted Hopkins
at the July 14 rally. Other evidence shows that Steepleton had not yet returned from his
vacation that week so I have concluded that Steepleton probably assigned Hopkins to cover the
July 18 rally. When he returned from vacation, Steepleton replaced Hulse as the city editor and
a month later he became the associate editor. Before leaving on vacation he had been the
assistant city editor.
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Toward the end of July or in early in August, the GCC, with the assistance of several
newsroom employees, established a website with the domain name savethenewspress.com to
provide information about the organizing effort and to solicit community support. After it was
established, Keegan and several pro-union employees regularly participated in maintaining the
website.
The top of the savethenewspress.com homepage reads in bold letters:
“SAVE THE SANTA BARBARA NEWS-PRESS”
The content on the left side of the home page contains a message “from the newsroom staff” to
the community. It invited readers to join the “organized staff” of the SBNP in their effort “to
restore journalistic integrity to the paper and negotiate a fair working contract.” Asserting that
“recent weeks have brought unprecedented upheaval to the institution we love,” the community
letter states “[w]e need your help” and solicits the reader to print, sign and mail a subscription-
cancellation card to the GCC’s local post office box. The card declares that the signer supports
the “organized” staff’s goals of restoring journalistic integrity, obtaining union recognition, and
negotiating a “fair employment contract.” The bottom of this subscription-cancellation card
reflects that it is paid for by the GCC. The homepage concluded with a list of the editors,
reporters and columnists who resigned in July and expressed a note of thanks to them. The
right side one-third of the home page contains links to other pages pertaining to community
assistance, the widespread media coverage about the SBNP situation, and documents of
potential interest website visitors.
At least one effort to publicly advertise the web site did not sit well with SBNP
management. Schultz regularly parked his Volvo automobile in the newspaper lot. In early
August, Schultz taped a display on his rear window that included, in this order, a copy of the
News-Press masthead, a GCC/Teamster bumper sticker, and a hand-made strip across the
width of the window promoting the savethenewspress website.
Around August 8, the News-Press co-publishers observed Schultz’ rear-window display
while walking through the parking lot and von Wiesenberger photographed the display. When
word of the photographing reached Shultz on August 9, he emailed Apodaca seeking an
explanation. She replied the following day. Her email explained that his car had been
photographed so the Company could seek an opinion from its legal counsel concerning his use
of SBNP’s masthead. She continued by advising Schultz that, in the opinion of SBNP’s
attorney, his display of the masthead amounted to an unauthorized use of the Company logo
and infringed upon Ampersand’s exclusive trademark. She asked that he promptly remove the
masthead from his windshield and not display it in the future.14 Later that same afternoon
Shultz reported to Apodaca by email that he had removed masthead display as she requested.
Exhibit P-9. Shultz never displayed the masthead after that.15 T300: 15-16.
On August 24 approximately 25 or so newsroom employees assembled near the desk of
Dawn Hobbs around 3 p.m. The group then “marched” or walked in the direction of McCaw’s

14 Apodaca also explained to Shultz that several other autos with Teamster bumper stickers
had been observed but they had not been, and would not be, photographed because
employees had a right to make this expression of support.
15 Meanwhile the GCC filed an unfair labor practice charge alleging that management’s
photographing of Shultz’ rear window display violated Section 8(a)(1) of the Act. The Regional
Director dismissed that allegation. Exhibit E-6.
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office with the purpose of delivering a letter addressed to her said to be signed by 25 staff
members. This letter (Exhibit P-2) reads:
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 the loss of her column. The car of another
supporter was photographed because of pro-union slogans in the window.
Now we are confronted with a conflict of interest policy 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 our managers have been pressured to dissuade 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.
When Steepleton noticed the group beginning to gather, he instructed the employees to
get back to work and proclaimed that they could not “do this.” One obeyed but the rest
continued single file toward McCaw’s office. When the group arrived there, Steepleton, who
had followed behind at a distance, heard someone shake the door handle which apparently
locked. Following that, he heard a woman say, “Let’s try the side door (to McCaw’s office).”
Shortly afterward, he heard another voice say, “She’s not here.”16
The group then proceeded down another hallway that led past Armstrong’s office.
Armstrong walked into the hallway just as the group passed. Al Bonowitz, the travel editor at
the time, inadvertently bumped Armstrong’s shoulder as they passed in the narrow hallway. .
According to Armstrong, Bonowitz turned and “scowled” at him. The group continued to an
interior stairwell leading to the lower floor and Apodaca’s office. By then Steepleton had
returned to his office to telephone Apodaca. She told him that the group had just arrived at her
office. A short while later, the group returned to work on the newsroom floor. Steepleton
estimated this employee action lasted three to five minutes. T52: 21-23.
No one testified about what occurred when the employees reached Apodaca’s office.
However, after the group returned to work, Apodaca requested, through Steepleton, that Schultz
call her about delivering the McCaw letter to her. T104: 10-15. That evening Shultz e-mailed
Apodaca to thank her “on behalf of myself and the other signatories to (the McCaw letter) for
handling our request today.” Shultz went on to express his appreciation for Apodaca’s effort to
determine whether Ms. McCaw, Mr. von Wiesenberger, or one of the SBNP attorneys might be
available to personally accept the letter. Shortly afterward, Apodaca emailed Shultz thanking
him for his note of appreciation. Exhibit P-10.
Steepleton claimed the August 24 group “marched” along single file making a loud
stomping noise and, when gathered in front of McCaw’s office door, they looked like “kind of a
mob.” T48: 2-4. Armstrong thought the group resembled “storm troopers” as they passed him
but, contrary to Steepleton’s claim, he said there was no noise associated with the employee

16 Likewise, it also appears that McCaw’s administrative assistant, who normally works in an
area outside McCaw’s door, was also absent.
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“march” to McCaw’s office. T121: 23-T122: 7. Carpeting covers the entire area where the
newsroom and McCaw’s office are located; the steps leading to the floor below are tiled.
On August 31 Steepleton notified 11 employees of a two day suspension for
participating in the August 24 action His memo charged that “[t]his 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.”
His memo accuses the participants of “parading through the building” disrupting other workers
and of interrupting a meeting in Apodaca’s office. Steepleton threatened possible termination
for any further conduct of that sort. Exhibit P-3.
The week’s interval also caused Apodaca’s tone to chill. She issued a memo on August
31 to all newsroom employees that said the type of disruption and insubordination that occurred
on August 24 would not be tolerated. Her memo also asserted that “[w]e will not permit
employees to threaten and intimidate other employees in this or any other manner” and
concludes by saying that future conduct of this sort would be “subject to discipline up to and
including termination.” Unlike the Steepleton memo, Apodaca made no reference to the group
interrupting a meeting in her office on August 24. Exhibit P-19. Although Apodaca did not
testify concerning the August 24 events, the claim about a meeting in her office may explain her
request that Schultz deliver the letter later.
On September 7, two weeks following the letter-delivery exercise, the co-publishers
waded into the fray over the August 24 events. McCaw and von Wiesenberger issued a joint
memo to all employees that day to express regret because those “personally and professionally
dedicated to your jobs are being placed in an uncomfortable and difficult situation by a small
group of employees.” In the next sentence the they allege that “a large number of newsroom
staff marched en masse throughout the building a couple of weeks ago” in “a deliberate attempt
. . . to confront, threaten and physically intimidate all of us in the building and interfere with our
work. They claimed the action “created emotional and physical threats among our staff.” Their
memo goes on to inform employees that the Company disciplined those involved and filed unfair
labor practice charges against the union for inciting “this coercive, intimidating and threatening
behavior in the workplace.”17 They also stated their belief that the employees did not need
union representation and decried the GCCs organizing tactics. Exhibit P-16.
The Employer adduced no testimony in support of the theme running through all three
memos that the group seeking to deliver the McCaw letter sought to “confront, threaten, and
physically intimidate” anyone.
Dan Myers served as an assistant city editor at the News-Press for a couple of months
following Steepleton’s promotion out of that position in mid-July. Myers usually worked at night
in an area by himself. The Union refused to stipulate that Myers was a statutory supervisor.
Apodaca asserted that Myers supervised about 10 or 12 employees. She also said that he had
the authority to schedule employees and that he had “the ability to make recommendations that
might affect employee hiring, promotions, and other employment activities” but that he never
made any such recommendations because of his short tenure at SBNP. Apodaca asserted that

17 SBNP’s counsel filed NLRB Case 31-CB-12071 against GCC on August 31. That unfair
labor practice charge alleges, among other matters, that the GCC engaged in a “course of
confrontational and intimidating conduct” on August 24 that violated Section 8(b)(1)(A) of the
Act. Exhibit P-4A. The Regional Director dismissed that case in its entirety and the General
Counsel subsequently denied SBNP’s appeal from that dismissal. Exhibits P-4B and P-4C.
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other editors make recommendations about hiring, promotions, and discipline. T152: 11-
T153: 8. Regardless, Myers claimed that his supervisory status was never made clear to him.
Myers talked to Dawn Hobbs and a couple of copy editors, all strongly prounion. The
content of their discussions primary involved their reports to him about the progress of the union
campaign. One day in early September, Steepleton observed Myers wearing a union button at
work. Steepleton verbally reprimanded Myers for wearing the button and told him that “as a
manager” he should campaign against the union organizing effort. Myers never followed
Steepleton’s instructions about campaigning because he believed in the union cause but no
evidence shows that he continued to wear the union button. On Sunday, September 24, Myers
attended the GCC rally at the Plaza that featured Delores Huerta, co-founder of the United Farm
Workers and a California labor movement icon. On September 28, the day after the election,
the Santa Barbara Independent published a picture of Myers with several other prounion News-
Press employees at that rally.18 Exhibit E-5; T68: 17-T70: 13.
On September 3 and again on September 5, the News-Press published editorials
attacking the GCC’s organizing tactics among the newsroom employees and the more sordid
aspects of the Teamsters history. The editorials cited statistics about actions brought against
union officials for engaging in violent conduct and against unions for engaging in “illegal restraint
and coercion of employees.” Exhibits P-6 and P-7.
The parties entered into the stipulated election agreement on September 11 and the
Regional Director approved it on that same date.19 The agreement provided that the election
would be held on September 27 in the unit described in footnote 2, above. Later, that day,
Apodaca notified employees by memo about the requirements of the Board’s Excelsior rule that
requires the disclosure of the employee names and addresses to the union for use in an
election campaign.
Shortly after noon on September 11, BlogaBarbara’s de la Guerra put up a post about
an allegation that SBNP objected to links on the EdHat.com website that permitted its readers to
access obituaries published in the News-Press. Over the next three days the EdHat post drew
59 comments, including the “Phase 2” comment submitted from an unknown source that said
nothing about the EdHat post. This comment, dated September 11 at 8:51 p.m., stated:
Friends:
It is time to commence Phase 2 of our operations against the News-Press. Management
has continued to exhibit intransigence in the face of our initial efforts, so it is time to step
up the pressure.
1. In addition to encouraging people to cancel their subscriptions to the newspaper, it’s
important to cut off the paper’s economic base by refusing to patronize News-Press
advertisers. This includes classified advertisers. It’s important that we tell the
advertisers why we are boycotting their businesses.

18 The Independent is a local newspaper published weekly that reported extensively about
the upheaval at SBNP. It is considered to be a News-Press competitor.
19 The Employer attached a copy of the September 11 stipulated election agreement to its
brief and requested that I take official notice of it. That request is granted.
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2. To disrupt the paper’s operations, a campaign of cyber-sabotage will be initiated.
Former employees are knowledgeable about the company’s IT systems and operational
vulnerabilities. This expertise will be used to disrupt News-Press email, and possibly
could be escalated to delete stories after they are written or finished pages of the paper
being sent to production. In addition, the web site will be hacked so that readers are
directed to www.samethenewspress.com.
3. In a lower-tech form of economic sabotage, newspaper boxes will be emptied of their
contents so that the paper will suffer a huge downturn in single-copy sales.
4. To target home deliveries, we will go door to door distributing leaflets to homes and
apartments that receive the News-Press. The leaflets will encourage the subscriber to
discontinue the subscription and explain the reasons for doing so.
5. If the above measures fail, the campaign will be shifted to the News-Press printing
plant on Kellogg Avenue in Goleta. Specifics of this campaign will be announced if and
when it is necessary.
A BlogaBarbara comment dated September 11 at 10:44 p.m., about two hours after the
Phase 2 comment and allegedly from Al Bonowitz, reads:20
I am speaking only for myself, but as a member of the organized newsroom staff of the
SBNP, I am offended by the anonymous post of 8:51 p.m.
Boycotts are fine but hacking computers, stealing from newspaper boxes and
threatening the printing plant (items 2, 3 and 5) are unacceptable actions to me and [I
am] willing to bet that my colleagues would agree.
I appreciate the community’s support for our plight, b[ut] this is the kind of assistance we
can do without.
Exhibit P-15: 7.
Schultz saw the Phase 2 comment while it remained posted. Using the pseudonym
“save it,” he responded to it with this comment on September 11 at 11:21 p.m.:
Dear BlogaBarbara readers,
In case any of you are confused, the five-point plan espoused by 8:51 above is not some
"phase 2" of the union campaign. Do not be fooled. We make major strategic decisions
by consensus. And while it is true we are urging a boycott, as has been widely reported,
I can assure you the sequence of ideas above was not discussed, nor is it in the
playbook.
So listen loud and clear, we are not collaborating with former IT employees in some form
of "sabotage." And if anybody out there intends to hack the News-Press Web site, I
absolutely request you do NOT redirect to our own. We're getting enough hits as it is
(keep telling your friends though), and are quite pleased about it.

20 Bonowitz did not testify. Accordingly, his authorship of this comment is not authenticated.
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We've taken the high road through this whole endeavor and will continue to do so until
our election on Sept. 27, a date confirmed today as reported by the AP this evening
(Monday). You can confirm this at Google News.
Thanks again, Santa Barbara, for your sensible support.
Exhibit P-15: 9-10.
Several other comments appeared condemning the action advocated in the Phase 2 comment.
At 8:47 a.m. the next morning, de la Guerra provided her own comment explaining that a site
administrator had removed the Phase 2 comment because it advocated “domestic terrorism.”
Shultz spoke to two or three other newsroom employees about the Phase 2 comment
but he had no sense of it being widely discussed among the newsroom employees generally.
No further evidence exists concerning the awareness on the part of unit employees about the
Phase 2 comment. More particularly, the evidence does show or estimate the number of unit
employees who saw or became aware of the Phase 2 comment.
Around September 18 or 19, Jackie Barnard, described as SBNP’s customer service
manager, purportedly gave a copy of the Phase 2 comment to Apodaca.21 In turn, Apodaca
gave the copy to Andrea Huff, a public relations agent retained by the newspaper shortly after
the raft of resignations in July. Huff prepared and issued a press release on behalf of SBNP on
September 23 concerning the Phase 2 comment and caused it to be distributed over the
Business Wire. Exhibit P-14. The Editor and Publisher (E&P) released a news story by Joe
Strupp on September 25 following an interview with Huff about her press release. Exhibit 16.
Shultz read the E&P article but no evidence shows how many other unit voters saw Huff’s news
release or the E&P story. No evidence shows that the Company ever reported the Phase 2
threats to any police authority.
The strife at the News-Press also became grist on other blogs. The Employer’s brief
cites three blog comments in fashioning an argument that inflammatory campaign propaganda
caused unit employees to be prejudiced toward about SBNP’s management at the same time
that the savethenewspress website portrayed unit-wide support for the Union. Employer’s Br:
28-32.
One such comment appeared in response to an August 18 article on the Independent’s
website about New-Press columnist Rochelle, an active Union supporter. This comment from
an unknown person using the pseudonym “Harvey Milk” alluded to Armstrong’s purported
sexual orientation and racial heritage even though he was not mentioned in the Rochelle article.
The comment stated:
Reading Travis Armstrong’s San Jose Mercury columns…at the time of them he was
fairly clearly gay; his columns describe boutiquing in the Castro district of SF with his
partner and he also describes the domestic partner law in terms of his partner Greg.

21 Barnard did not testify and no other management witness discussed her supervisory
authority, if any. When and how Barnard obtained or became aware of the Phase 2 comment is
not known. However, as de la Guerra removed the Phase 2 comment from BlogaBarbara on
the morning of September 12, it may be inferred that either Barnard or her source would have
had access to it during the limited twelve-hour period when it appeared on BlogaBarbara.
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Nothing wrong with being gay, but somehow this possibility for Travis deepens the NP
situation a bit…how does he feel about Dr. Laura? Did the old newsroom staff criticize
him? How does his sexuality align with his Native American heritage.
Exhibit E-15: 1-2.
On September 12, the Union counsel published his “diary,” using the pseudonym
“budlawman,” on a website named “Daily Kos.” The diary provided a one-sided viewpoint about
the upheaval at the News-Press. Exhibit E-7. Certain blog readers commented on counsel’s
diary and the Union’s counsel responded to some. Particularly irritating to the Employer was
exchange between an unknown blog reader using the designation “LNK” and the Union’s
counsel in reference to the News-Press owner and co-publisher that occurred about 10:30 p.m.
on September 12. LNK wrote:
it would be fun to investigate her [McCaw], maybe catch her for non-payment of
taxes……And/or infiltrate, get hired to pamper her….As the economics professor,
Michael Parenti says, the one thing you need to know is that the rich want
EVERYTHING.
The Union’s counsel, responded:
Mrs. McCaw is the worst combination of a person with literally billions who acts as if she
doesn’t care what the general public thinks of her, and is willing to spend endlessly on
lawyers to do her bidding, regardless of the strength or ethics of her positions. She does
have some sordid dealings in her past, but I don’t know of anything actually criminal.
Exhibit E-7: 12.
The third anonymous comment cited by the Employer appeared September 24 on
BlogaBarbara among a long list of comments apparently in reference to Huff’s September 23
press release discussed above. It compared the “McCawCaw regime” to that of Kim Jong Il
allegedly because of its “same propensity for unethical and erratic behavior.” Exhibit E-16: 4.
C. The Objections, Argument, and Analysis
Objection No. 1:22 The Employer contends that during the critical period, the Union – or those
acting on the Union’s behalf – made criminal threats directed at SBNP property. Such threats
have a substantial destructive effect on campaign discussion and are therefore sufficient
grounds for invalidating an election.
Employer’s Short Statement in Support of Objection 1: On or about September 11,
2006, a blog was posted on BlogaBarbara stating: “It is time to commence Phase 2 of our
operations against the News-Press.” The blog continues with a list of specific improper threats
to SBNP, including such criminal conduct as: (1) hacking into the SBNP IT system to disrupt
email communications; (2) hacking into the SBNP IT system to delete stories after they are
written or to delete finished pages of the paper being sent to production; (3) hacking into the

22 The objections and the short statements in support are taken in haec verba from the
objections document filed with the Regional Director on October 3. See Board Exhibit 1A:
Attachment A.
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SBNP website so that readers will be directed to the Union website; and (4) emptying
newspaper boxes of their contents. The blog states that former employees will be used to
access the News-Press IT system.
Objection No. 1 Argument and Analysis: No evidence establishes that either party is
responsible for the reprehensible Phase 2 comment. However, the Board will set aside
elections based on third party conduct but only where it is so aggravated as to create a general
atmosphere of fear and reprisal so as to render a free election impossible. Robert Orr-Sysco
Food Services, 338 NLRB 614, 615 (2002), citing Westwood Horizons Hotel, 270 NLRB 802
(1984) (Westwood). Usually, less weight is accorded to third party conduct because it tends to
have less effect upon voters than similar conduct by a party and because employers and unions
cannot prevent misdeeds by persons over whom they have no control. Deffenbaugh Industries,
Inc., v. NLRB, 122 F.3d 582, 586 (8th Cir. 1997).
NLRB elections are not lightly set aside. NLRB v. Hood Furniture, 941 F.2d 325, 328
(5th Cir. 1991). The burden of sustaining an election objection is a “heavy one” that rests with
the party filing it. This burden requires the objecting party to show improper conduct that
interfered with employee free choice. Werthan Packaging, Inc., 345 NLRB No. 30, slip opinion
at 2 (2005).
Westwood, the Board’s lead case involving third party conduct, involved a threat of
physical violence made by a prounion employee who was not a union agent. In that case, the
Board said it would evaluate third party conduct based on the threat’s character and
circumstances and not merely on the number of employees affected. The seriousness of a third
party threat, the Westwood Board said, is determined not only by the nature of the threat itself,
but also whether the threat encompassed the entire bargaining unit; whether reports of the
threat were disseminated widely within the unit; whether the person responsible for the threat
was capable of carrying it out and whether employees likely acted in fear of that capability; and
whether the threat was “rejuvenated” at or near the time of the election. 270 NLRB 803.
Applying the Westwood to the facts here, I find the Employer failed to meet the burden
required to sustain Objection 1. The threat contained in the comment pertained primarily to the
Company’s information technology (IT) operations and, to a lesser extent, its street vending
machines. Hence, the threatened actions pertained to the unit employees only indirectly and, to
the extent that it sought to affect the unit employees at all, its impact, if successful, would be
limited to their work product rather than their physical or emotional well-being.
The Company adduced no evidence that any of its former employees who might harbor
animus toward it likely possessed the requisite knowledge, skills and abilities required to invade
or disrupt its IT system in the manner suggested by the Phase 2 comment. Likewise, the
Company adduced no evidence that this threat was widely disseminated among the unit
employees, and of those who admitted knowing about it, at least one prounion employee
(Shultz), and perhaps a second (Bonowitz), publicly disavowed the criminal conduct suggested
by the Phase 2 comment. And to the extent that the threat was “rejuvenated” near the time of
the election, the Company itself did that.
Although counsel coaxed a vague assertion from von Wiesenberger that the Company
made capital expenditures to protect its IT system after the threat, no evidence shows that the
Company took no other steps to alert management personnel or to report the threat to police
authorities. I find the Employer’s case further weakened by its failure to call Jackie Barnard to
explain her responsibilities with the Company, when and how she came to possess a copy of
the Phase 2 comment that appeared for such a limited period of time, and, if she obtained a
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copy of the comment when it remained on BlogaBarbara, why she waited for more than a week
to call it to the attention of any other Company official.
Accordingly, I have concluded that the anonymous Phase 2 threat that appeared for a
limited 12-hour period two weeks prior to the election before being suppressed by the blog host
does not constitute aggravated conduct that created a general atmosphere of fear and reprisal
that would render a free election impossible. Therefore, I recommend Objection 1 be overruled.
Objection No. 2: The Employer contends that during the critical period, the Union initiated a
campaign of false and misleading propaganda so that employees and other were unable to
separate truth from untruth and their free and fair choice was affected.
Short Statement in Support of Objection 2: The Union created a false impression to
confuse employees and others that the SBNP supported and endorsed the Union’s organizing
activities. The Union did so by authorizing and encouraging the use of the SBNP banner for
display next to Union bumper-stickers for the purpose of suggesting SBNP sponsorship of the
Union. The Union also established a website with the domain name “savethenewspress.com,”
an inherently confusing domain name (because of the inclusion of “thenewspress”) with
confusing content (in that a user cannot be sure whether the website is a SBNP or Union site as
it contains such official content as subscription cancellation cards).23
Objection No. 2 Argument and Analysis: In its post-hearing brief the Employer argued that the
election should be set aside because Union-endorsed savethenewspress.com website amounts
to the type of misrepresentation and artful deception condemned by the courts in NLRB v.
Savair Mfg. Co, 414 U.S. 270 (1973) and NLRB v. Gormac Custom Mfg., Inc., 190 F.3d 742 (6th
Cir. 1999). The Employer further asserts that the Union’s deceptive impersonation on its
savethenewspress.com website interfered with employee choice in the election by falsely
depicting universal support of the newsroom employees, leading them to believe that a Union
victory was a foregone conclusion. The existence of an inconspicuous reference to the Union
on the subscription cancellation card, the Employer asserts, is “not sufficient to ameliorate the
deceptive picture of universal employee support for the Union that the website evinces.”
The Employer further argues that Midland Midland National Life Insurance Co., 263
NLRB 127 (1982) applies here because the letter to the community gives the impression that
unionization has already occurred or is at least a foregone conclusion. In addition, the
Employer asserted that it would be impossible to tell from viewing the website that union
representation would be decided in an election yet to come and that the website’s ”deceptive
design” prevented anyone who viewed it from “recognizing it as Union propaganda, rather than
the Newsroom’s expression of its support for the Union or even an official announcement of the
Newsroom’s organized status.” And, as noted, the Employer argues that while
savethenewspress painted a false portrait of total unit support for the union, union supporters
employed “impermissible derogatory rhetoric” to prejudice newsroom employees against
management. Employer Br: 26-32.

23 The Employer’s reference to the SBNP banner appearing next to union bumper stickers
refers to the display that appeared on the rear window of Schultz’ auto. As the Employer’s
argument on brief fails to address this matter, I assume that it has chosen to abandon the claim
that his window display suggested “SBNP sponsorship of the Union.” Likewise the brief
appears to have abandoned the claim that SBNP and savethenewspress websites are so
similar that they would confuse voters. As is evident, I would find both arguments lack merit.
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The savethenewspress website certainly does not implicate Savair. The union in Savair
offered to waive its standard initiation fee for any employee who signed a “recognition slip” prior
to the election. The Supreme Court concluded that this type of fee waiver allowed “the union to
buy endorsements and paint a false portrait of employee support during its election campaign.”
The Court said that the statutory policy favoring fair representation elections did not permit
endorsements, whether for or against the union, to be “bought and sold in this fashion.” 414
U.S. 277. The savethenewspress website offers nothing of value in exchange for an
employee’s endorsement of GCC. The subscription cancellation card is nothing more than a
consumer boycott device directed at the general public rather than unit employees. Even so,
nothing on the website implies that the Union would reward a subscriber for submitting a
cancellation card.
The Employer’s reliance on Gormac is also unusual. The Gormac objection claimed that
the union distributed a leaflet three hours before the election (decided in favor of the union by a
three vote margin) containing a false and misleading claim that a large majority of employees
whose signatures appeared on the flyer supported the union. Three employees whose
signatures appeared there submitted affidavits claiming that they never authorized the union to
use their signatures in that fashion.
As the Board explained in UNISERV, 340 NLRB 199 (2003), the Sixth Circuit continues
to apply a standard in campaign propaganda cases at variance with the Board’s Midland case.
For this reason, the Board explained that it will evaluate cases of this nature arising in the Sixth
Circuit based on that court’s rule. However, this case arises in the Ninth Circuit so it should be
anticipated that Midland will be applied.24 In Midland, the Board effectively abandoned its
efforts to regulate campaign propaganda that had long been criticized by practitioners and
scholars. Thus, the Board stated:
[W]e rule today that we will no longer probe into the truth or falsity of the parties’
campaign statements, and that we will not set elections aside on the basis of misleading
campaign statements. We will, however, intervene in cases where a party has used
forged documents which render the voters unable to recognize propaganda for what it is.
Thus, we will set an election aside not because of the substance of the representation,
but because of the deceptive manner in which it was made, a manner which renders
employees unable to evaluate the forgery for what it is. Midland, 263 NLRB at 133,
footnotes omitted.
Regardless, the Gormac opinion addresses at considerable length the “five factor test”
that court adopted for analyzing misrepresentation cases Mitchellance, Inc. v. NLRB, 90 F.3d
1150 (6th Cir. 1996). Those factors are: (1) the timing of the misrepresentation; (2) whether the
employer was aware of the situation and had an opportunity to respond; (3) the extent of the
misrepresentation; (4) whether the source of the misrepresentation was identified; and (5)
whether there is evidence that employees were actually affected by the misrepresentations.
The court also added that it would give consideration to the election outcome and carefully
review those cases where the election margin is narrow. 90 F.3d at 1155.

24 Moreover, the holding in Gormac case actually concerned an ancillary issue, i.e. whether
the Board improperly overruled the employer’s objection without a hearing. The panel majority
concluded that the Board abused its discretion by doing so and remanded the case to the Board
for a hearing on the objection.
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I have concluded that the Employer’s claims about the savethenewspress would fail
under both Midland and Mitchellance especially where, as here, the employees voted for
representation by an overwhelming margin. As to the tests in the latter case, the Employer
points to nothing on savethenewspress that occurred at such a late hour as to preclude an
effective response. Apodaca’s August 10 email to Shultz about the newspaper masthead
shows the Employer’s careful scrutiny of savethenewspress.com nearly seven weeks before the
election. No evidence shows that the Employer protested any alleged misrepresentations on
that website which it now claims existed.
In addition, the Employer’s claim that the heading directly above the community letter on
the home page seeks to convey the message that there is “universal support” for the Union is
simply frivolous. The end of the letter makes it clear that the message is from the “organized
staff” rather than the entire staff which at that juncture the employees could easily construe as
that group supporting the Union. Moreover, absolutely no evidence shows that any employee
was “actually affected” by the content of the website.
Equally without merit is the Employer’s contention that union supporters employed
impermissible derogatory rhetoric to prejudice newsroom employees against management. The
Employer’s brief seems to label every unfavorable, anonymous blog comment it doesn’t like to
as the product of a union supporter. As to the blog comments detailed at pages 11 and 12,
above, only that appearing in the Daily Kos is attributable to someone positively identified with
the Union.
I find Employer’s argument seeking to establish an interrelationship between
savethenewspress.com and blog commentary appearing elsewhere without merit. The
savethenewspress website does not constitute a “forged document” within the meaning of
Midland that would “render voters unable to recognize propaganda for what it is.” As found
above, the contention that savethenewspress painted a false portrait of total newsroom support
for the Union” – the central premise for the Employer’s argument that the blog comments have
significance here – cannot be taken seriously at all.
The Employer’s arguments also assume that the unit employees absorbed every word
on every blog like a sponge. That assumption also has no evidentiary support at all. Moreover,
it appears that a certain amount of the third party vilification suffered by New-Press executives
since June would have occurred even in the absence of a union representation campaign. I find
it improbable that anonymous internet blog comments about Company executives would serve
to sway voters let alone intimidate them. In addition, the Employer’s argument even about the
comments cited tends to misconstrue the actual message conveyed in two of them. True, the
anonymous comment comparing McCaw to Kim Jong Il is obviously reprehensible but arguably
the comment about Armstrong could be read as a sympathetic observation rather than an effort
to interject those subjects into the election campaign. And admittedly, while the Union counsel’s
reply to “LNK” fails to provide a flattering portrait of McCaw that she might appreciate, at least
he politely dismissed the suggestion about McCaw and criminal conduct.
The Employer’s effort to fashion a potential forgery cognizable under Midland based on
the savethenewspress website lacks merit for one additional and significant reason. The
Midland Board, quoting from Shopping Kart, 228 NLRB 1311, 1313 (1977), said: “[W]e believe
that Board rules in this area must be based on a view of employees as mature individuals who
are capable of recognizing campaign propaganda for what it is and discounting it.” That
observation strikes me as particularly apt to this election involving a unit persons schooled in the
sophisticated use of words, phrases and sentences. Accordingly, I reject the proposition the
Employer, in effect, puts forth that the employees who voted this election held more than two
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months after savethenewspress first appeared went to the polling place confused, coerced or
intimidated by materials that appeared on that website and blog commentary elsewhere.
Finally, I have concluded that the blog comment aspect of Objection 2 fails because it
has been raised in an untimely manner. The assertion that this election should be overturned
because of largely anonymous commentary about Employer’s executives is clearly not
encompassed in any of the objections. Ordinarily, the Board will not consider allegations of
misconduct unrelated to timely-filed objections absent clear and convincing proof that the
evidence is was newly discovered and previously unavailable. Rhone-Poulenc, Inc., 271 NLRB
1008 (1984). No basis exists here to apply the principles pertaining to unalleged objections
addressed in White Plains Lincoln Mercury, 288 NLRB 1133 (1988). Therefore, I recommend
that the Board overrule Objection No. 2.
Objection No. 3: The Employer contends that during the critical period, there were attempts by
the Union to coerce employee sentiment.
Short Statement in Support of Objection 3: On August 24, 2006, a group of
approximately 25 SBNP Union employees assembled en masse in the newsroom, halting all
news functions. The group proceeded to march in single file through the SBNP offices while
loudly stomping their feet. The massed group ignored their supervisor’s instructions to return to
work and instead proceeded to target persons in individual offices.
Objection No. 3 Argument and Analysis: The Employer’s brief argues that the effort of the
prounion employees to deliver letters to Armstrong on July 13 and to McCaw on August 24
coerced employee sentiment in the Union’s favor. Even though only conduct that occurs
between the filing of the election petition, here August 10, and the date of the election, here
September 27, would ordinarily be considered (Ideal Electric Mfg. Co., 134 NLRB 1275 (1961)),
the Employer argues that the July 13 action should be considered here because it “adds
meaning and dimension to related postpetition conduct.” Where that is the case, prepetition
conduct may be considered in assessing postpetition conduct. Dresser Industries, 242 NLRB
74 (1979).
I reject the Employer’s contention that the July 13 action constituted an intimidating
situation of any sort. Although the content of the letter probably made Armstrong uncomfortable
because of the temporary nature of his position, I find employee behavior on this date to have
been entirely peaceful and respectful. In addition, no showing has been made that any voter
was present in the newsroom other than those who actively participated in the effort to deliver
the Armstrong letter. Furthermore, I find Armstrong’s effort to depict the July 13 visit by
employees to his office as threatening or intimidating to be entirely manufactured for purposes
of this proceeding. His purported fears are belied by his commanding style on July 6 when he
weathered the invective of hostile newsroom employees while escorting former executive editor
Roberts from the premises and then returned there to order another recently resigned editor out
and to discuss the situation with those remaining.
Armstrong evidenced a strong, visceral bias toward this organizing campaign in other
ways. Thus, he claimed with one breath that the group passing his office on August 24 en route
to McCaw’s office reminded him of “storm troopers” but in the next breath he said there was no
noise associated with their passing. In addition, his fortuitous and positive identification at the
hearing of GCC organizer Keegan as the individual he twice observed sans his glasses from his
apartment window sitting in a vehicle parked on an adjacent street late at night had no ring of
truthfulness at all. For these reasons, I do not credit his self-serving characterizations without
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convincing corroboration. By contrast, I found the testimony of Thomas Schultz, the only other
witness who addressed this event at any length, to be highly credible. As to the July 13 event,
he calmly agreed with a few of Armstrong’s assertions and added important factual detail with
no apparent attempt to embellish what actually occurred.
The letter employees delivered to Armstrong, the management official in charge at the
time, addresses their working conditions at the newspaper. After he expressed his discomfort
with the situation and asked to speak privately with one of those he identified as a leader, the
others left and, for the most part, returned to their work. No credible evidence even hints
otherwise. Whether this action lasted less than a minute as Schultz recalled or as much as five
minutes as Armstrong suggested matters not at all. This whole episode amounted to nothing
more than a simple effort by employees to begin a conversation about their grievances and their
desire for representation. No amount of prevaricating can turn it into anything else. 25
Therefore, I conclude that nothing which occurred on July 13 merits, as the Employer urges, the
application of an exception to the Ideal Electric rule.
I find the August 24 employee action mirrors that of July 13 for its peaceful tone and
purpose. Leaving out the extreme embellishments by Armstrong and Steepleton as well as the
incendiary rhetoric in the Employers brief none of which I find reliable, the evidence reflects the
25 or so newsroom employees walked single file in a peaceful manner to McCaw’s office and
then on to Apodaca’s office after it became clear that McCaw was unavailable. The record does
not support the claims made in the Employer’s brief that the employees stampeded from office
to office attempting to intimidate others. Again, the record does not even show that any unit
employees other than the participants were in the building.
Although the group admittedly ignored Steepleton’s two commands about returning to
work, the subject matter of their letter to McCaw pertained to their working conditions and their
effort to secure representation. Even assuming that Andrea Huebner was incorrect in her belief
that this action occurred during a break time, a peaceful three-to-five minute work interruption
for this purpose would ordinarily be protected by the Act. Quietflex Manufacturing Co., 344
NLRB No. 130 (2005).
Armstrong’s claim that Bonowitz inadvertently bumped his shoulder and then “scowled”
when he entered the hallway while the group passed is of little moment. Armstrong is excluded
from the unit and could not vote in the election, and no evidence of any type was presented that
others who would have been voters observed Bonowitz’ scowl so as to be intimidated by it.
In the end, the McCaw letter was ultimately delivered to Apodaca. The fact that the
Employer chose not to question Apodaca in an effort to support its claim that the employees
acted like an unruly mob stampeding throughout the building merits the inference that she would
not have supported this portrayal. On the contrary, Apodaca’s calm request later that Shultz
deliver the letter to her and the polite exchange that took place between them at the end of the
day established to my satisfaction that no basis exists to set aside this lopsided election result

25 In its brief the Employer argued that Armstrong desired to leave his office and escape the
“mob” surrounding him but he found his exit blocked. The brief adds that at least one employee
bystander witnessed the incident, and word of the event spread quickly throughout the
newsroom. Employer Br. 23. No support exists in the record for this wildly inflated argument.
Armstrong made no attempt to leave. In fact, he requested one employee to remain for a
private talk when the others left.
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because of the brief work interruption that occurred on August 24. Therefore, I recommend that
Objection No. 3 be overruled.
Objection No. 4: The Employer contends that during the critical period, pro-Union supervisory
conduct occurred.
Short Statement in Support of Objection 4: As the Board can appreciate, SBNP did not
question employees regarding this issue in the event it could be subjected to claims of
interfering with the Section 7 rights of employees. However, the Board is in a position to
conduct relevant interviews.
In an October 13 letter to a Region 31 attorney, the Employer elaborated on the basis for
Objection 4. In that letter the Employer asserted that Objection 4 pertained to the following
supervisory conduct: (1) assistant city editor Dan Myers wore a pro-union button on September
1 or 2; (2) Myers’ attendance at a pro-union rally on September 24; and (3) life section editor
Andrea Huebner’s attendance at a pro-union rally in early August. This letter expresses the
Employer’s certainty that other instances of pro-union conduct by its supervisors occurred but
not in a “public forum.” Board Exhibit 1B, Attachment B, Page 5.
Objection No. 4 Argument and Analysis: Although the Employer contends that both Huebner
and Myers are supervisors within the meaning of the Act, its argument on brief focuses almost
entirely on Myers’ conduct. Employer Br. 39-43. The Union declined to stipulate that Myers
was a supervisor. In that circumstance, the Employer had the burden of proving that he was a
supervisor within the meaning of Section 2(11) of the Act. That section provides:
The term “supervisor” means any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward,
or discipline other employees, or responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature, but requires the use of
independent judgement.
In my judgment, the evidence adduced by the Employer falls far short of establishing
Myers’ supervisory status. Even though Apodaca’s testimony that Myers could make
recommendations pertaining to the 10 to 12 employees he purportedly supervised that “might
affect employee hiring, promotions, other employment activities” is uncontradicted and may well
be true, it simply fails to establish that he possessed authority to “effectively recommend”
actions as required by Section 2(11). Likewise, her uncontradicted testimony that he had the
authority to “schedule” employees says little without evidence establishing that his scheduling
duties required the exercise of independent judgment and was not merely clerical in nature.
Therefore, I find that the Employer failed to meet its burden of proving that Myers was a
supervisor, as claimed.
But even if Myers possessed supervisory authority while employed at the News-Press, I
find no basis to recommend that the election be overturned by anything he was shown to have
done. I make that same finding as to Huebner. In Harborside Healthcare, Inc., 343 NLRB 906
(2004), the Board (Members Liebman and Walsh dissenting) undertook to “restate the legal
standard to be applied in cases involving objections to an election based on supervisory
prounion conduct.” At 343 NLRB 909, the Harborside majority stated:
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When asking whether supervisory prounion conduct upsets the requisite
laboratory conditions for a fair election, the Board looks to two factors.
(1) Whether the supervisor’s prounion conduct reasonable tended to coerce or
interfere with the employees’ exercise of free choice in the election.
This inquiry includes: (a) consideration of the nature and degree of supervisory
authority possessed by those who engage in the prounion conduct; and (b) an
examination of the nature, extent, and contest of the conduct in question.
(2) Whether the conduct interfered with freedom of choice to the extent that it
materially affected the outcome of the election, based on factors such as (a) the
margin of victory in the election; (b) whether the conduct at issue was
widespread or isolated; (c) the timing of the conduct; (d) the extent to which the
conduct became known; and (e) the lingering effect of the conduct.
Applying this standard, the Harborside majority directed a new election after finding that a single
supervisor had engaged twelve offenses that included: telling employees to sign a union card
and attend union meetings; telling an employee she would lose her job if she failed to vote for a
union; harassing an employee about not attending union meetings; telling an employee two
days before the election that her days with the employer would be “numbered” if the union failed
to win; repeatedly badgering another employee two weeks before the election about voting
union and warning that the employee would lose her job if the union did not win; and so on in a
similar vein. This record contains no utterance of any kind by either Huebner or Myers to any
employee in support of the Union. Instead, the Employer argues, in effect, that the lopsided
election should be set aside based largely on impressions employees might have gained from
observing them at a union rally or, in Myers’ case, at work wearing a Teamsters pin for a brief
period.26
Huebner’s presence at rallies on July 14 and July 18 obviously pre-dates the filing of
GCC’s election petition of August 10, and her attendance at the September 24 rally occurred
roughly two weeks following her termination. Perhaps it is largely for these reasons that the

26 The Employer also relies on NLRB v. Island Film Processing Co, Inc., 784 F.2d 1446,
1451 (9th Cir. 1986) (the Kahala Kai case), for the proposition that “active” supervisory
participation in the union selection process provides a basis for invalidating the election. As with
Harborside, the Kahala Kai case is factually inapposite. There the court refused to enforce a
Board bargaining order in a test of certification case. The court concluded that the Board
erroneously certified the union in the underlying representation case over the employer’s
objections that four head printers initiated the organizing effort and, after they were found to be
supervisors in a pre-election proceeding, they went “underground” to strong arm apathetic
employees into selecting the union. In the Kahala Kai court’s view, the actions of supervisors
does not rise to the level of supervisory involvement necessary for invalidating a union selection
process without there being “seeds of potential reprisal, punishment, or intimidation.” Id. 784
F.2d 1452. For reasons detailed below none of the supervisory conduct about which the
Employer complains rises to that level. Furthermore, apart from Myers’ activities, all of the
conduct cited by the Employer occurred outside the critical period and none of it is so clearly
proscribed at to warrant setting aside the election despite that fact. Compare, Cedars Sinai,
342 NLRB 596, fn. 4. (2004) (no showing that threatening telephone calls to an employee
occurred during the critical period).
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Employer’s brief appears to have abandoned its reliance on Huebner’s activities as a basis for
setting aside this landside result.
Huebner’s attended the rallies in July largely as a spectator and to mentor intern
Hopkins. Her mere presence in the audience represented no definitive statement of any kind
about her sympathies. She attended the July rallies essentially as a bystander rather than as a
participant. She did not speak on behalf of any party or defend any cause at any time. Contrary
to the Employer’s claim, Huebner’s attendance at rallies ten weeks before the election is entirely
innocuous and falls far short of the type of supervisory conduct condemned by the Board in
Harborside or by the Ninth Circuit in the Kahala Kai case. The fact that no management official
ever spoke to her concerning her attendance at the July rallies reinforces my conclusion that her
conduct had no impact on employee sentiment particularly given the prevailing atmosphere at
SBNP at that time. Accordingly, as the employer failed to show that Huebner engaged in any
objectionable conduct during the critical period or, for that matter, at any other time, I
recommend that Objection 4 be overruled to the extent that it pertains to Huebner’s conduct.
The Employer argues that Myers’ button-wearing escapade, his discussions with pro-
union employees, and his attendance at the September 24 rally merit setting aside the election
result because it sowed the “seeds of reprisal.” Employer’s Brief 43.
Unlike Huebner’s situation, Myers’ conduct at least occurred during the critical period.
Still, under the first Harborside test, I am unable to conclude that any of his prounion conduct
tended to coerce or interfere with employee election choices or that it interfered with the voters’
freedom of choice to the extent that it materially affected the election outcome. At most, Myers’
supervisory authority was highly circumscribed. The Employer never established precisely what
Myers said to any unit voter about the union organizing. Although Myers admitted that Dawn
Hobbs, an early activist, and two prounion copy editors told him about the progress of the union
campaign, no evidence warrants an inference that Myers coerced disclosures from these three
or any other employees. In fact, the more reasonable inference would be that Myers’
employment at the News-Press began after the organizing campaign gained most of its
momentum and that he simply became a follower in the unionization effort.
I also find it would be unreasonable to conclude that his appearance with employees at
the September 24 rally or his brief display of a Teamster pin on his clothing at the beginning of
that month sufficed to meet either of the Harborside tests. The degree of union support among
the unit employees seems to have been established early on in this campaign. As many as 20
employees went to Armstrong’s office on July 13 and even more participated in the August 24
effort. It strikes me that it would be totally illogical to conclude that a brief button-wearing
episode and a non-speaking appearance at the last campaign rally by the newspaper’s
assistant city editor served to have slightest impact on the outcome of this election.
The Union, in its words, won the election by a landslide on September 27. The
Employer saw that outcome on the horizon well in advance of the election date. No evidence
shows that Myers union-pin display or his appearance in the midst of the employee group on
September 24 that featured California labor movement dignitaries served to create any sort of
buzz among the unit employees. In anything, by the time Myers appeared on the scene, unit
voters probably took little notice of his prounion sympathies.
Finally, Myers never hid his prounion sympathies; he operated entirely above ground,
not underground. The mild rebuke from Steepleton over the Teamster button stands in stark
contrast to the harsh treatment accorded some of the employee activity. Therefore, as the
Employer did little to restrain Myers, it should estopped from benefiting from his insignificant
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prounion activities by having this overwhelming election result set aside. B. J. Titan Service
Company, 296 NLRB 668, fn 2 (1989). Accordingly, assuming Myers to have been a
supervisor, I recommend that the Board overrule Objection 4 insofar as it pertains to his conduct
because the Employer made no real effort to corral his conduct and because the nature of his
conduct would not have restrained or coerced voters in this election to an extent that would
have materially affected the outcome. Harborside, supra.
On these findings of fact and on the entire record, I issue the following recommended27
ORDER
The Objections filed by the Employer, Ampersand Publishing, LLC, d/b/a Santa Barbara
News-Press are hereby overruled in their entirety and the Graphics Communications
Conference is hereby certified as the exclusive collective bargaining representative under
Section 9(a) of the Act in the following appropriate unit:
All full-time and regular part-time employees in the news department, including
writers, reporters, copy editors, photographers, and graphic artists employed at
the Employer’s Anacapa Street facility located in Santa Barbara, California, but
excluding all other employees, guards, confidential employees, supervisors as
defined in the Act, as amended, and writers and editors engaged primarily in
working on the opinion editorial pages.
Dated: March 8, 2007.
_______________________
Administrative Law Judge

27 Within fourteen (14) days from the issuance of this decision and recommended order, any
party may file exceptions to it with the Board in Washington, D.C. If a party files exceptions,
Section 102.69 requires that an original and eight (8) copies be submitted to the Board together
with a supporting brief, if desired. Any party filing exceptions must immediately serve a copy
thereof on all other parties, and the Regional Director. Exceptions, if any, must be received by
the Board in Washington, D.C. on or before