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NLRB v. MORTENSEN

November 23, 1988

NATIONAL LABOR RELATIONS BOARD, Applicant,
v.
CHRIS MORTENSEN, Respondent. NATIONAL LABOR RELATIONS BOARD, Applicant, v. CHRISTINE BRENNAN and MICHAEL WILBON, Respondents



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, SENIOR UNITED STATES DISTRICT JUDGE

 The General Counsel of the National Labor Relations Board ("NLRB" or "Board") seeks enforcement orders from this Court requiring three newspaper reporters to comply with certain regularly issued subpoenas ad testificandum. The subpoenas were duly served on the reporter-respondents, Chris Mortensen of The Atlanta Journal-Constitution, and Christine Brennan and Michael Wilbon of The Washington Post. Their counsel challenge the General Counsel's application and contend that entry of enforcement orders covering the subpoenas would violate a reporter's privilege under the First Amendment.

 The matter presents a serious constitutional question of whether enforcing the subpoenas would infringe upon the respondents' qualified privilege and chill their ability to gather news. In deciding the issue, the Court must strike a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.

 The background facts, the applicable law and the arguments of counsel have been fully considered. For the reasons stated below the Court determines that under the circumstances presented, the challenge of the respondents should be rejected. The Court will enter an appropriate enforcement order which shall limit the questions that may be asked of the respondents.

 I.

 BACKGROUND

 The underlying events before the National Labor Relations Board giving rise to this subpoena enforcement action involve the National Football League Players Association, AFL-CIO ("Players Association") and the National Football League Management Council ("Management Council"). Included within the latter as constituent members, are the 28 football teams within the League.

 On the eve of the 1987 National Football League season, the Players Association called a strike. That labor action was short-lived and, according to the Players Association, was seriously undermined by the "anti-union" activities of the Management Council. On basis of charges made by the Players Association, the Management Council and its constituent members were charged with interference, deprivation of players' guaranteed rights, and unfair labor practices -- alleged violations of Sections 7 and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (1975).

 The reporter-respondents were served with subpoenas ad testificandum, in order to authenticate certain statements made by and/or attributed to John Jones, Bobby Beathard and Jim Conway, all serving as members of the Management Council. Jones and Conway were Public Relations Director and General Counsel, respectively; Beathard was General Manager of the Washington Redskins. The statements attributed to the three were made in separate press interviews with the reporter-respondents during the 1987 strike and, if true, are relevant to the charges -- deprivation of players' guaranteed rights and unfair labor practice.

 The respondents' news articles quoted or paraphrased statements attributed to three members of the Management Council. Specifically, respondent Chris Mortensen wrote an article published on October 9, 1987, in The Atlanta Journal-Constitution entitled "Players Union Accused of 'Outright Lying' to its Strikers." Two consecutive paragraphs of the article for which authentication is sought read:

 
Jones also sent a message to striking players: Though the 1 p.m. deadline to play in Sunday's games has passed, they can still report and expect their paychecks.
 
'The games are going to be played, but it's almost impossible that they would be played by the guys on strike,' said Jones. 'Unless we had a dead agreement on all the issues, there's no way those players could expect to play. And I can assure you we are not close on an agreement.'

 Respondents Christine Brennan and Michael Wilbon wrote articles that appeared on October 15, 1987, in The Washington Post. The Brennan article included a quote from Bobby Beathard of the Washington Redskins. The Wilbon article paraphrased a ...


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