D.C. Circuit Blocks Labor Board’s ULP Order, Citing News Publisher’s Control Over Content

Ampersand Publ’g LLC d/b/a Santa Barbara News-Press v. NLRB, D.C. Cir., No. 11-1284, 12/18/12

• Key Holding:NLRA did not protect employee quest for newspaper editorial control, and board order based on that activity was unenforceable.
• Key Takeaway:Court stressed First Amendment protection of publisher’s control over editorial content.

By Lawrence E. Dubé

The U.S. Court of Appeals for the District of Columbia Circuit Dec. 18 vacated a National Labor Relations Board decision that a California newspaper publisher engaged in unfair labor practices after employees made demands affecting editorial control of the Santa Barbara News-Press and appealed to customers to cancel their newspaper subscriptions (Ampersand Publishing LLC v. NLRB, D.C. Cir., No. 11-1284, 12/18/12).

Writing for the court, Judge Stephen F. Williams denied enforcement of an NLRB order that required offers of reinstatement for eight fired journalists. The court found “the National Labor Relations Act did not protect the bulk of the employees’ activity and … the Board’s misconception of the line between protected and unprotected activity tainted its analysis.”

The court acknowledged employee protests arose during a union organizing campaign, but Williams said the main issue in dispute was editorial control of the News-Press. NLRB’s order could not be enforced, the court found, because “[t]he First Amendment affords a publisher–not a reporter–absolute authority to shape a newspaper’s content.”

Newspaper Staff and Publisher in Conflict

According to the decision and NLRB records, Wendy McCaw, Ampersand’s owner, bought the News-Press in 2000. Between 2004 and 2006, the court said, a “number of wrangles” broke out after McCaw complained that some of the paper’s news coverage, including articles about wildlife issues, reflected reporters’ bias and led to customer complaints.

McCaw’s conflict with the staff continued as she criticized staff performance, and 14 employees resigned amid what Williams called “a flurry of angry memos relating to control over content” at the News-Press.

The court said one employee, later fired, contacted the Graphic Communications Conference of the International Brotherhood of Teamsters. After GCC/IBT met with News-Pressstaffers, the employees delivered demands that the publisher recognize the union, negotiate a contract, and invite six newsroom editors to resume their jobs.

But the court said the first demand on the employees’ list was that Ampersand “[r]estore journalism ethics to the Santa Barbara News- Press: implement and maintain a clear separation between the opinion/business side of the paper and the newsgathering side.”

Employees Publicized Dispute

Employees publicized their dispute with Ampersand. Williams said the employees staged a public rally, putting duct tape over their mouths and distributed pledge cards asking subscribers to commit to canceling their subscriptions if Ampersand did not meet the employees demands.

The cards recited that the signers supported the News-Press newsroom staff in “its effort to restore journalistic integrity to the paper, obtain union recognition and negotiate a fair employment contract.”

Eventually, on Feb. 2, 2007, the court said, employees hung banners over a public highway, urging “Cancel Your Newspaper Today.” Smaller “Protect Free Speech” signs were also displayed, according to the court.

NLRB Certified Union, Found Unfair Labor Practices

GCC/IBT petitioned for an NLRB representation election in August 2006, and the California newspaper’s writers, reporters, copy editors, photographers, and graphic artists voted 33-6 for union representation in an NLRB-conducted election on Sept. 27, 2006. The board overruled the employer’s objections and certified the union as the employee bargaining representative in August 2007.

But the union also filed unfair labor practice charges and an NLRB administrative law judge found in December 2007 that Ampersand committed numerous unfair labor practices, including threatening to discipline employees if they engaged in union activity, coercively interrogating them about their union activity, prohibiting employees from wearing union buttons or posting pro-union placards in their vehicles, firing a supervisor who refused to commit an unfair labor practice, suspending employees for engaging in union activity, canceling a writer’s column because of her support for the union, and discharging eight employees for union activity.

In August 2011, the board affirmed the ALJ decision (357 N.L.R.B. No. 51, 191 LRRM 1081 (2011); 157 DLR A-11, 8/15/11).

Courts Denied NLRB Bid for Preliminary Injunction

During the period between the ALJ decision and board order, Williams observed, NLRB unsuccessfully sought interim relief under Section 10(j) of the NLRA.

A federal district court in May 2008 denied the request, finding that an injunction would significantly risk infringing the publisher’s First Amendment right to editorial discretion (104 DLR A-1, 5/30/08).

The U.S. Court of Appeals for the Ninth Circuit affirmed in a 2-1 decision in January 2010 (17 DLR AA-1, 1/28/10). NLRB filed a petition for en banc review (49 DLR A-1, 3/16/10), which the appeals court denied. Ampersand filed a petition for review in the D.C. Circuit after NLRB issued its final decision in the unfair labor practice case.

First Amendment Protection of Publisher Cited

Williams said newspapers are subject to the NLRA as are other employers, but citing Passaic Daily News t/a Herald News v. NLRB, 736 F.2d 1543, 116 LRRM 2721 (D.C. Cir. 1984), he said, “Where enforcement of the Act would interfere with a newspaper publisher’s ‘absolute discretion to determine the contents of [its] newspaper[],’ the statute must yield.”

NLRB recognized the First Amendment issue in the Ampersand dispute, Williams said, but the board dismissed the significance of the employees making demands related to editorial control of the newspaper.

“This brush-off,” the D.C. Circuit said, “completely overlooks the [NLRB] order’s clear coercive effect: it sanctions Ampersand for trying to discipline employees who sought to remain on its payroll and at the same time call on newspaper readers of Santa Barbara to cancel their subscriptions because Ampersand would not knuckle under to the employees’ demands for editorial control.”

“The First Amendment bars government pressure of this sort,” the court added.

Employee Activity Called Outside Section 7 of NLRA

Williams added that the board said in Riverbay Corp. d/b/a Co-Op City, 341 N.L.R.B. 255, 174 LRRM 1161 (2004) that an employee effort to affect the “ultimate direction and managerial policies” of an employer is not protected activity under Section 7 of the NLRA. Complaints about product quality are similarly beyond the protection of the act, Williams said.

In the News-Press dispute, the court said, “newsroom employees’ conduct was focused largely on protecting the quality of the relevant product, as they perceived it, from Ampersand’s editorial policies.”

The employees’ advocacy may have been well-intentioned, the court said, but it “went directly to the quality and managerial policies of the newspaper” rather than to employees’ wages, benefits, and working conditions.

Editorial Control Always the ‘Main Issue’

The court said NLRB argued that even if employees had an objective of gaining editorial control that did not qualify for protection under the NLRA, the board’s order was enforceable because it addressed employer conduct taken during a union organizing drive. Williams rejected the argument.

Stating the record showed that employee autonomy was the focus of the organizing campaign, the court said, “[W]e do not think that employees can extend § 7′s protections by wrapping an unprotected goal in a protected one, by tossing a wage claim in with their quest for editorial control.”

Williams said that in United States v. A Motion Picture Film Entitled “I Am Curious-Yellow,” 404 F.2d 196 (2d Cir. 1968), Judge Henry Friendly wrote in a concurring opinion that “a truly pornographic film would not be rescued by inclusion of a few verses from the Psalms.”

In the News-Press dispute, Williams continued, “the First Amendment wholly favors protection of the employer’s interest in editorial control, the main issue in dispute; it is hard to imagine that employees can prevail over that simply by adding ‘a few verses’ of wage demands.”

The D.C. Circuit said that even if NLRB properly found that Ampersand gave pretextual reasons for some of its actions, “the Board’s analysis was tainted by its mistaken belief that employees had a statutorily protected right to engage in collective action aimed at limiting Ampersand’s editorial control over the News-Press.”

Stating “[W]e can conceive of no principle by which the Board could cleanse that taint,” the appeals court granted Ampersand’s petition for review, vacated the NLRB decision and order, and denied the board’s application for enforcement.

Judges David B. Sentelle and Karen LeCraft Henderson joined in the opinion.

L. Michael Zinser of Zinser Law Firm in Nashville, Tenn., argued for Ampersand Publishing LLC, doing business as Santa Barbara News-Press. NLRB attorney Kira Dellinger Vol argued for the board. Ira L. Gottlieb of Bush, Gottlieb, Singer, Lopez, Kohanski, Adelstein & Dickinson in Glendale, Calif., argued for the Graphic Communications Conference.

By Lawrence E. Dubé

Text of the opinion is available at http://about.bloomberg.com/blaw2/files/2013/01/Ampersand-v-NLRB.pdf.