James McDermott v. Ampersand Publishing, LLC ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES J. MCDERMOTT, Regional 
Director of Region 31 of the
National Labor Relations Board,
for and on behalf of the National No. 08-56202
Labor Relations Board, D.C. No.
Petitioner-Appellant,
 2:08-cv-01551-
v. SVW-MAN
AMPERSAND PUBLISHING, LLC, OPINION
doing business as The Santa
Barbara News-Press,
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
March 11, 2009—Pasadena, California
Filed January 26, 2010
Before: Michael Daly Hawkins, Richard R. Clifton and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Clifton;
Dissent by Judge Hawkins
1447
MCDERMOTT v. AMPERSAND PUBLISHING 1451
COUNSEL
Ronald Meisburg, John E. Higgins, Jr., Barry J. Kearney,
Judith I. Katz, Steven L. Sokolow, and Margaret E. Luke
(argued), National Labor Relations Board, Washington, D.C.,
for the petitioner-appellant.
Framroze M. Virjee and Michael Garrison, O’Melveny &
Myers LLP, Los Angeles, California; Sri Srinivasan (argued),
O’Melveny & Myers LLP, Washington, D.C.; Ryan W. Rut-
ledge, O’Melveny Myers, LLP, Newport Beach, California;
A. Barry Cappello, Troy A. Thielemann, Matthew Clarke, and
Dugan Kelley, Cappello & Noel, LLP, Santa Barbara, Califor-
nia, for the respondent-appellee.
Barbara L. Camens, Barr & Camens, Washington, D.C.; Ira
L. Gottlieb, Bush Gottlieb Singer Lopez Kohanski Adelstein
& Dickenson, Glendale, California, for amici curiae the
Graphics Communications Conference of the International
Brotherhood of Teamsters and the Newspaper
Guild/Communications Workers of America.
L. Michael Zinser, The Zinser Law Firm, P.C., Nashville,
Tennessee; Bruce D. Brown, Baker & Hostetler LLP, Wash-
ington, D.C., for amicus curiae Newspaper Association of
America.
L. Michael Zinser, The Zinser Law Firm, P.C., Nashville,
Tennessee, for amici curiae Gannett Co., Inc.; Lee Enter-
prises, Inc.; Medianews Group, Inc.; and Stephens Media,
LLC.
1452 MCDERMOTT v. AMPERSAND PUBLISHING
OPINION
CLIFTON, Circuit Judge:
National Labor Relations Board Regional Director James J.
McDermott (the Regional Director) appeals the district
court’s denial of temporary injunctive relief under Section
10(j) of the National Labor Relations Act (NLRA), 29 U.S.C.
§ 160(j). The district court decided that “a significant risk of
a First Amendment violation” would arise if Ampersand Pub-
lishing, LLC, doing business as The Santa Barbara News-
Press, were forced, among other things, to reinstate employ-
ees it discharged for union activity directed at pressuring the
newspaper’s owner and publisher to refrain from exercising
editorial control over news reporting. McDermott ex rel.
NLRB v. Ampersand Publ’g LLC, 2008 U.S. Dist. LEXIS
94596, at *39 (C.D. Cal. May 21, 2008). Weighing the equita-
ble factors generally applicable to a claim for interim injunc-
tive relief with an eye toward the greater burden needed to
grant an injunction that threatens to infringe First Amendment
rights, the district court denied the petition. We affirm.
The First Amendment protects the right of a newspaper to
control its content. The main thrust of the employees’ cam-
paign to secure representation by the Graphic Communica-
tions Conference, International Brotherhood of Teamsters (the
Union) appears to have been to block or limit the influence of
the owner and publisher of the News-Press over the content
of the news sections of the paper and to focus that authority
in the employees themselves, as reporters and editors. We
conclude that the district court correctly required a heightened
showing of equitable need under our case law, because the
interim relief sought by the government in support of union
activity aimed at obtaining editorial control poses a threat of
violating the rights of the News-Press under the First Amend-
ment. Applying the Supreme Court’s recent guidance on the
general standard for granting preliminary injunctions, we fur-
ther determine that the district court did not abuse its discre-
MCDERMOTT v. AMPERSAND PUBLISHING 1453
tion in declining to order the interim injunctive relief sought
by the Regional Director.
I. Background
As described in more detail below, an NLRB administra-
tive law judge (ALJ) presided over a trial and produced a
lengthy recommended decision and order in this case, cur-
rently pending before the Board itself. The factual narrative
provided here is largely drawn from the findings of fact made
by the ALJ as part of that decision.
The News-Press is a daily newspaper published in Santa
Barbara, California. The News-Press’s owner and co-
publisher, Wendy McCaw, purchased the paper in 2000
through her privately-held company, Ampersand Publishing.
Beginning in 2004, McCaw voiced concerns that the
paper’s news reporting was sometimes biased. She took vari-
ous actions to try to eliminate the bias she perceived, includ-
ing issuing warning letters to reporters and conducting staff
training sessions. Early in July 2006, following a series of
clashes over what the district court described as “issues of
content,” several editors and reporters resigned from their
positions at the News-Press to protest what they perceived as
unethical interference in the news-reporting function of the
newspaper by McCaw and her co-publisher, Arthur von
Weisenberger.
The ALJ found that these resignations prompted the
remaining News-Press newsroom employees to seek out the
Union. On July 6, 2006, about thirty employees met with
Union representatives. After discussions with the Union, the
employees drafted a letter to the News-Press, dated July 13,
2006, listing four demands:
1. Restore journalism ethics to the Santa Barbara
News-Press: implement and maintain a clear separa-
1454 MCDERMOTT v. AMPERSAND PUBLISHING
tion between the opinion/business side of the paper
and the news-gathering side.
2. Invite back the six newsroom editors who recently
resigned . . . .
3. Negotiate a contract with the newsroom employ-
ees governing our hours, wages, benefits and work-
ing conditions.
4. Recognize [the Union] as our exclusive bargaining
representative.
The next day, July 14, the Union and its employee supporters
held a rally in front of the News-Press building where these
same four demands were read aloud. At another event staged
four days later, News-Press reporters held up four signs, each
stating one of the demands from the July 13 letter.
The News-Press delivered its response to the employees’
July 13 letter on July 17. The response stated that the newspa-
per “respected the employees’ right to decide whether or not
. . . to have union representation” but declined to recognize
the Union or to invite back the editors who had resigned. At
an internal staff meeting in late July, city editor Scott Steeple-
ton answered employees’ questions concerning McCaw’s
involvement in the news department by saying that, as the
owner of the paper, McCaw “had the right to be part of what-
ever she wants to be part of.” The paper later published edito-
rials criticizing the Union and proclaiming that it was
“standing firm against allowing outside Union organizers to
influence news coverage or interject bias into reporting.”
At an event on July 20, 2006, the employees unveiled their
campaign to persuade readers to cancel their subscriptions by
September 5 “if [the employees’] demands were not met.”
They distributed pledge cards at that event and at various
other functions in the months that followed that said:
MCDERMOTT v. AMPERSAND PUBLISHING 1455
I, _____, support the Santa Barbara News-Press
newsroom staff in its effort to restore journalistic
integrity to the paper, obtain recognition and negoti-
ate a fair employment contract. Cancel my subscrip-
tion by Sept. 5, 2006, if the employees’ demands
have not been met to their satisfaction.1
The ALJ found that this “subscription cancellation effort
became the centerpiece of the Union’s campaign concerning
the News-Press.” On September 5, the Union and its support-
ers held a press conference announcing that the employees’
demands had not been met and asking the public to cancel
their subscriptions to the News-Press to show their support.
On September 24, employees organized a rally and fundraiser
complete with a large banner bearing the message “Cancel
Your Newspaper Today.” During the campaign, union sup-
porters made public statements such as “Don’t let McCaw
control the news” and “Help us take back the News-Press.”
The Union filed a petition with the NLRB on August 10,
2006, to represent a unit of news department employees at the
News-Press. The NLRB conducted an election on September
27, 2006, which the Union won by a vote of 33 to 6. Overrul-
ing the News-Press’s objections to the election, the NLRB
certified the Union as the exclusive bargaining representative
of the news department employees on August 16, 2007.
Negotiations for a collective-bargaining agreement com-
menced on November 13, 2007. No agreement has been
reached.
Between August 2006 and March 2007, the Union filed a
series of charges with the NLRB alleging that the News-Press
had engaged in a variety of unfair labor practices. On May 31,
2007, the Regional Director issued an amended and consoli-
1
The original demand to invite back the editors who had resigned in
protest was omitted from the pledge cards and was not thereafter linked
to the subscription cancellation drive.
1456 MCDERMOTT v. AMPERSAND PUBLISHING
dated complaint against the News-Press. Among other things,
the complaint alleged that the News-Press had violated para-
graphs 8(a)(1) and (a)(3) of the NLRA2 by discharging eight
employees because they engaged in union activity. One of
those employees was terminated in October 2006, another in
January 2007, and the other six in February 2007. The com-
plaint also alleged that the News-Press had committed a host
of additional unfair labor practices ranging from improperly
reprimanding employees to failing to provide employees with
adequate raises and bonuses.
A 17-day trial before an ALJ was conducted on the allega-
tions in the complaint. On December 26, 2007, the ALJ issued
a recommended decision and order. He concluded that the
News-Press had committed numerous unfair labor practices
and recommended that relief be granted, including reinstate-
ment of the eight discharged employees, constituting more
than 20 percent of the newsroom staff.
Regarding the News-Press’s First Amendment defenses,
the ALJ observed that “a purpose of the union activities of the
employees was directed toward what they viewed as a need
to restore journalistic integrity at the News-Press.” He identi-
fied the “First Amendment protection of Freedom of the
Press” as the “starting point in this analysis.” The ALJ recog-
nized that “this protection belongs to the publisher of a news-
paper and not to the reporters in their role as employees.”
2
Those provisions of the NLRA read in relevant part:
(a) It shall be an unfair labor practice for an employer —
(1) to interfere with, restrain, or coerce employees in the exercise
of the rights [to organize and engage in collective bargaining
activities] guaranteed in section 157 of this title;
(3) by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discour-
age membership in any labor organization . . . .
29 U.S.C. § 158(a)(1), (3).
MCDERMOTT v. AMPERSAND PUBLISHING 1457
Nevertheless, he concluded that the First Amendment does
not limit government-mandated collective bargaining aimed at
“restoring editorial integrity.” Such collective bargaining was
warranted, the ALJ reasoned, because the News-Press had
engaged in “conduct that employees believe undermines their
credibility as journalists” and adopted policies that “could be
viewed [as] vague and ambiguous.” Thus, the ALJ concluded
that “the matter of journalistic integrity may be a matter over
which employees may bargain through its collective-
bargaining representative.”
The ALJ rejected the notion that “the employees were
attempting to gain entrepreneurial control of the newspaper”
and instead credited the testimony of one employee that “the
union campaign was not part of an effort to let the reporters
rather [than] management control the content of the newspa-
per.” Having decided that First Amendment rights did not
come into play, the ALJ found that the News-Press failed to
establish that it would have taken the same actions even if the
employees had not engaged in protected union activities.
The parties each filed numerous objections to the ALJ’s
recommended decision and order. The case remains pending
before the Board.
The Regional Director had previously requested permission
from the Board to file a Section 10(j) petition seeking an
injunction against the News-Press. The Board denied this
request on June 15, 2007. On December 20, 2007, the then
four-member Board, anticipating that it would soon have
fewer than the three members needed for a quorum, see 29
U.S.C. § 153(b), entered a temporary delegation order.
Through this order, which became effective on December 28,
2007, the Board gave the General Counsel full “authority on
all court litigation matters that otherwise would require Board
authorization.” NLRB Press Release R-2653 (Dec. 28, 2007).3
3
A copy of the press release may be found at http://www.nlrb.gov/
shared_files/Press Releases/2007/R-2653.pdf (last checked December 30,
2009).
1458 MCDERMOTT v. AMPERSAND PUBLISHING
Specifically, the Board temporarily delegated to the General
Counsel “full and final authority and responsibility on behalf
of the Board to initiate and prosecute injunction proceedings
under Section 10(j).” Id.
Over two months after this delegation of authority became
effective, and despite the Board’s initial refusal to authorize
the petition, the Regional Director filed a Section 10(j) peti-
tion for a temporary injunction on March 6, 2008.4 This peti-
tion sought an injunction compelling the News-Press, among
other things, to offer interim reinstatement to each of the eight
terminated employees.
The district court denied the petition for Section 10(j) relief
on May 22, 2008. McDermott, 2008 U.S. Dist. LEXIS 94596.
The court held that the requested injunction, “in its entirety,”
posed “a significant risk of violating [the News-Press’s] First
Amendment rights” since the “employees’ Union-related
activity had as a central demand the ceding of an aspect of
[the News-Press’s] editorial discretion.” Id. at *16, 22.
Accordingly, the district court applied the heightened burden
for obtaining relief set forth in Overstreet ex rel. NLRB v.
United Brotherhood of Carpenters and Joiners of America,
409 F.3d 1199 (9th Cir. 2005). Considering the “traditional
equitable criteria” for interim injunctive relief and the First
Amendment implications of the petition, the district court
concluded that the Regional Director fell short of establishing
that relief would be “just and proper” and therefore denied the
Section 10(j) petition. McDermott, 2008 U.S. Dist. LEXIS
94596, at *39-48.
The Regional Director timely appealed the district court’s
decision.
4
Because we affirm the district court’s denial of Section 10(j) relief on
other grounds, it is not necessary for us to reach the parties’ arguments
concerning the legality of the Board’s delegation of its power.
MCDERMOTT v. AMPERSAND PUBLISHING 1459
II. Discussion
We apply the same standard of review to the district court’s
denial of relief under Section 10(j) as we would to the denial
of any other preliminary injunction. Miller ex rel. NLRB v.
Cal. Pac. Med. Ctr., 19 F.3d 449, 455 (9th Cir. 1994) (en
banc). Accordingly, we will reverse the denial of Section
10(j) injunctive relief “only where the district court abused its
discretion or based its decisions on an erroneous legal stan-
dard or on clearly erroneous findings of fact.” Id. Whether the
district court applied the correct legal standards is reviewed
de novo. Id.; see also Overstreet, 409 F.3d at 1204.
[1] Ordinarily the NLRB enjoys primary jurisdiction over
labor disputes, subject only to narrow judicial review. See
Miller, 19 F.3d at 458. Section 10(j) of the NLRA, however,
permits the NLRB to petition a federal district court “for
appropriate temporary relief or restraining order” pending the
Board’s resolution of an unfair labor practice charge. 29
U.S.C. § 160(j). The district court is given authorization to
grant “such temporary relief or restraining order as it deems
just and proper,” id., keeping in mind that the underlying pur-
pose of Section 10(j) is “to protect the integrity of the collec-
tive bargaining process and to preserve the Board’s remedial
power while it processes the charge.” Miller, 19 F.3d at 459-
60.
[2] To decide whether granting a request for interim relief
under Section 10(j) is “just and proper,” district courts con-
sider the traditional equitable criteria used in deciding
whether to grant a preliminary injunction. See id. at 456. In
evaluating the validity of the district court’s analysis of the
equitable factors, we must employ the Supreme Court’s recent
interpretation of the threshold showing necessary for granting
such an “extraordinary remedy.” Winter v. Natural Res. Def.
Council, 129 S. Ct. 365, 374-76 (2008). Our now defunct pre-
cedents had provided “that when a plaintiff demonstrates a
strong likelihood of prevailing on the merits, a preliminary
1460 MCDERMOTT v. AMPERSAND PUBLISHING
injunction may be entered based only on a ‘possibility’ of
irreparable harm.” Id. at 375; see, e.g., Scott ex rel. NLRB v.
Stephen Dunn & Assocs., 241 F.3d 652, 661 (9th Cir. 2001)
(using this standard in evaluating Section 10(j) petitions for
injunctive relief). Shunning the more lenient standard adopted
by our circuit, the Supreme Court in Winter held that a party
seeking a preliminary injunction “must establish that he is
likely to succeed on the merits, that he is likely to suffer irrep-
arable harm in the absence of preliminary relief, that the bal-
ance of equities tips in his favor, and that an injunction is in
the public interest.” 129 S. Ct. at 374. “To the extent that our
cases have suggested a lesser standard, they are no longer
controlling, or even viable.” Am. Trucking Ass’n, Inc. v. City
of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).
[3] In Overstreet, a case decided before Winter, we held
that a higher bar than usual is set for those seeking injunctive
relief pending a Board decision in instances where “there is
at least some risk that constitutionally protected speech will
be enjoined.”5 409 F.3d at 1208 n.13 (emphasis added). The
NLRB’s regional director in that case sought to enjoin mem-
bers of a trade union from displaying banners that announced
a labor dispute, alleging that the action constituted an unfair
labor practice. Id. at 1201-02. We held in Overstreet that the
significant First Amendment implications of enjoining peace-
ful speech activity meant the “ordinary principles of deference
to Board interpretation of the Act d[id] not apply.” Id. at
1207. Further, in light of the risk that protected First Amend-
ment speech would be restrained, we concluded that “only a
5
Overstreet involved a petition brought under Section 10(l), which
makes it mandatory that regional officers file for injunctive relief when-
ever there is “reasonable cause” to believe a charge of certain NLRA
offenses is true. 409 F.3d at 1205. Section 10(j), in contrast, gives the
Board discretion (which in this case the Board delegated to the General
Counsel) to decide whether to file for such injunctive relief. Id. The dis-
tinction between Section 10(l) and Section 10(j) petitions does not affect
the standard a court must apply in assessing the propriety of a proposed
injunction. See id.
MCDERMOTT v. AMPERSAND PUBLISHING 1461
particularly strong showing of likely success, and of harm . . .
as well, could suffice” to justify issuing the requested injunc-
tion. Id. at 1208 n.13.
[4] We see no reason why Overstreet’s rule that a “particu-
larly strong showing” is required to grant a Section 10(j)
injunction when the proposed relief risks violating the First
Amendment should not survive Winter’s change to our base-
line preliminary injunction standard. Nothing in Winter con-
flicts with our requirement that those seeking such injunctive
relief must establish particularly strong showings of likeli-
hood of success and irreparable harm if there is some risk of
offending First Amendment rights in the process. Nothing in
Overstreet suggests that the heightened standard it announced
for granting injunctive relief that risks licensing First Amend-
ment violations was tied to the prevailing general preliminary
injunction framework. See Overstreet, 409 F.3d at 1207-08
(“To say that Miller applies to this case does not . . . fully
delineate the applicable standards for judging the propriety of
the requested interim relief . . . because of the First Amend-
ment backdrop in this case.”). We hold, therefore, that Over-
street’s First Amendment precepts remain intact after Winter.
A. Overstreet’s Heightened Equitable Relief Standard
Applies Here
The Regional Director argues that the district court errone-
ously applied Overstreet’s elevated standard “because the
record and the law establish that there is no risk of First
Amendment infringement.” The News-Press responds that the
employees’ central demand in their union campaign was for
the News-Press to relinquish editorial control over the content
of its news reports and that the employees backed up this
demand with economic coercion, notably by urging readers to
cancel their subscriptions. The News-Press maintains that
“giving employees a protected entitlement under the imprima-
tur of the NLRA to apply economic pressure on the News-
Press to cede editorial control” would create “a significant
1462 MCDERMOTT v. AMPERSAND PUBLISHING
risk of infringing upon the News-Press’s First Amendment
rights.” We conclude that the district court correctly deter-
mined that granting the requested injunction would present at
least some risk of compromising the News-Press’s First
Amendment right to exercise editorial control.
Recognizing the union’s argument that enjoining its mem-
bers from displaying banners about a labor dispute would be
unconstitutional was “a plausible, and quite possibly meritori-
ous one,” Overstreet held that interpreting the NLRA to pro-
hibit the union’s activity would pose a “significant risk” of
violating the First Amendment. 409 F.3d at 1211, 1212.
Accordingly, applying the constitutional avoidance principle
of statutory construction, we interpreted the NLRA so as not
to prohibit the conduct at issue. See id. at 1210-12. Since the
Board could not establish the pre-Winter “irreducible mini-
mum” showing of “a fair chance of success on the merits,” we
affirmed the district court’s denial of interim relief. Id. at
1207, 1216, 1219 (internal quotation marks omitted).
[5] Resolving whether Overstreet’s heightened equitable
standard for awarding Section 10(j) relief controls here does
not require us to “decide whether the First Amendment does
protect the [News-Press’s challenged activity], or even
whether it probably does.” Id. at 1209. Rather, we need only
determine whether granting the Regional Director’s injunction
request would create “at least some risk that constitutionally
protected speech will be enjoined.” Id. at 1208 n.13.
“[B]ecause constitutional decisions are not the province of the
NLRB (or the NLRB’s Regional Director or General Coun-
sel), the tasks of evaluating the constitutional pitfalls of poten-
tial interpretations of the [NLRA] . . . are committed de novo
to the courts.” Id. at 1209.
Newspapers are not entitled to blanket immunity from gen-
eral regulations, and the NLRA’s prohibition on deterring
union activity is no exception. In Associated Press v. NLRB,
301 U.S. 103 (1937), the Supreme Court considered an order
MCDERMOTT v. AMPERSAND PUBLISHING 1463
by the NLRB directing the Associated Press to stop penaliz-
ing its employees for engaging in union activity and to rein-
state an editor whom the NLRB found was fired because of
his union activity. Id. at 124. The Court upheld the NLRB’s
order and rejected the AP’s contention that it must have “ab-
solute and unrestricted freedom to employ and to discharge”
news editors at will, observing that “[t]he business of the
Associated Press is not immune from regulation because it is
an agency of the press.” Id. at 131, 132.
The Court did not hold, however, that First Amendment
concerns were entirely irrelevant and should always be set
aside in the face of an NLRB order. To the contrary, the Court
emphasized that enforcement of the order at issue there had
“no relation whatsoever to the impartial distribution of news.”
Id. at 133. The Court explicitly noted that the order did not in
any way “circumscribe[ ] the full freedom and liberty of the
[AP] to publish the news as it desires it published or to
enforce policies of its own choosing with respect to the edit-
ing and rewriting of news for publication.”6 Id. With this
caveat, the Court signaled that application of regulations that
restricted those press liberties could be constitutionally prob-
lematic. See Passaic Daily News v. NLRB, 736 F.2d 1543,
1557 (D.C. Cir. 1984) (“The Court implied [in Associated
Press] that should the press’s freedom and liberty ‘to publish
the news as it desires it to be published’ be circumscribed, the
[NLRA] would have to yield to the First Amendment.”).
[6] It is clear that the First Amendment erects a barrier
against government interference with a newspaper’s exercise
of editorial control over its content. Elaborating on the consti-
6
The Court’s decision did not discuss the specific motivation of the
employees in that case for supporting the union. It may be inferred that it
was the more usual concern of employees for wages and hours. That is
confirmed by the underlying decision of the NLRB, which referred to the
lowering of wages in the industry during the Depression, and the AP’s
replacement of a five-day work week with a six-day work week. The Asso-
ciated Press, 1 N.L.R.B. 686, 691, 693 (1936).
1464 MCDERMOTT v. AMPERSAND PUBLISHING
tutional guarantees afforded to newspaper publishers, the
Supreme Court has explained:
The choice of material to go into a newspaper, and
the decisions made as to limitations on the size and
content of the paper, and treatment of public issues
and public officials — whether fair or unfair — con-
stitute the exercise of editorial control and judgment.
It has yet to be demonstrated how governmental reg-
ulation of this crucial process can be exercised con-
sistent with First Amendment guarantees of a free
press . . . .
Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258
(1974); see also Associates & Aldrich Co. v. Times Mirror
Co., 440 F.2d 133, 136 (9th Cir. 1971) (holding private news-
papers cannot be compelled to publish advertisements free
from editorial control of their content). The Court in Tornillo
thus struck down a state statute that forced newspapers to
publish a political candidate’s reply to stories criticizing the
candidate, holding that such a law impermissibly intrudes on
a newspaper’s right to choose what to print. See Tornillo, 418
U.S. at 257-58.
Following Tornillo, the D.C. Circuit declined to enforce
part of an NLRB order requiring a newspaper to reinstate a
columnist found to have been discharged for engaging in
union activity and to resume printing his weekly column sub-
ject to lawful employment and publication standards. Passaic
Daily News, 736 F.2d at 1556-59. Passaic deemed the
NLRB’s order constitutionally defective because it “invites
the Board to review the Company’s publication standards and
to become directly involved with the Company’s exercise of
editorial control and judgment.” Id. at 1559. According to the
court, “[a]n order that merely directed the Company to not
MCDERMOTT v. AMPERSAND PUBLISHING 1465
discriminate against [the fired columnist] on the basis of his
union activity would present a much closer case.”7 Id.
The district court noted that the proposed injunctive relief
in this case is “more indirect” than the orders at issue in Tor-
nillo and Passaic Daily News, because it would not “force
publication of specific content,” as did the orders in those
cases. McDermott, 2008 U.S. Dist. LEXIS 94596, at *28.8
Nonetheless, it concluded that the requested injunction would
burden the exercise of editorial discretion by the News-Press.
Id. at *28-29. It specifically found that the “employees’
Union-related activity had as a central demand the ceding of
an aspect of [the News-Press’s] editorial discretion.” Id. at
*22. The district court further found that the employees
sought to force the News-Press to give in to their union-
backed demand for the relinquishment of editorial control
through economic pressure tactics. Id. at *22-23. These find-
ings of fact are not clearly erroneous and are supported by the
record. See supra at 1453-55.
The union organizing campaign arose in the wake of an
extended dispute between the News-Press management and
newsroom employees regarding allegedly biased reporting
and newspaper content. The first of the four demands was for
the News-Press to “[r]estore journalism ethics to the [newspa-
per]: implement and maintain a clear separation between the
opinion/business side of the paper and the news-gathering
side.” This demand reflected the belief of some news report-
ers that there had been a “breakdown of a ‘wall’ that should
7
On remand, the Board called for the columnist to be restored to his
prior position with no guarantee that his columns would be published.
Herald News, 276 NLRB No. 78 (1985). This later order was not chal-
lenged.
8
The ALJ’s decision cites the cancellation by the News-Press of a col-
umn written by a union supporter as an unlawful unfair labor practice, an
approach which appears in conflict with Passaic Daily News, but the ALJ
did not go so far as to recommend ordering restoration of the column
because the employee subsequently resigned.
1466 MCDERMOTT v. AMPERSAND PUBLISHING
separate [the publisher’s] control of the opinion pages of the
newspaper from control over the news reporting pages.”
Melinda Burns, one of the lead Union organizers and one of
the terminated employees whose reinstatement would be
ordered by the proposed injunction, testified:
To keep its credibility, a newsroom has to have inde-
pendence from the editorial side of the paper . . . .
The editorial side is the opinion side. The publisher’s
opinion is in the editorials. The news side has to
have the independence and freedom to report the
news, gather the news . . . and not to be pressured by
the publisher to report it or gather it in a certain way.
She wanted, in short, to be “able to report the news as truth-
fully as I can and as fairly as I can without a publisher telling
me how to write it.” (emphasis added). The employees’
content-specific demand was repeated at various Union-led
demonstrations leading up to the Union election.
[7] The cancellation drive was also tied to the employees’
desire for editorial independence from management. Pledge
cards specifically asked recipients to support the “newsroom
staff in its effort to restore journalistic integrity to the paper”
by cancelling their subscriptions. This history persuades us
that the employee-initiated union campaign aspired in large
part to compel the publisher of the News-Press to relinquish
to the newsroom staff editorial control over the reporting of
the news, which lies at the core of a newspaper’s First
Amendment rights.
[8] Under these circumstances, as the district court aptly
observed, it “does not seem possible to parse, at least in the
manner the ALJ sought to do, [the newspaper’s] animus
toward the Union generally from its desire to protect its edito-
rial discretion. The motives necessarily overlapped in this
case.” McDermott, 2008 U.S. Dist. LEXIS 94596, at *37. We
agree.
MCDERMOTT v. AMPERSAND PUBLISHING 1467
We also observe that the ALJ appeared to believe that the
fact that “editorial integrity” was a proper subject for collec-
tive bargaining supported a conclusion that First Amendment
rights were not at issue. That simply does not follow, and the
qualifications drawn by the Supreme Court in Associated
Press indicate otherwise. That employees may want to bar-
gain collectively over a given subject does not necessarily
mean that there can be no First Amendment implications. The
rights of employees to organize and engage in collective bar-
gaining may, understandably, be the primary focus and con-
cern of the NLRB, but they do not supersede the First
Amendment. As we noted in Overstreet, 409 F.3d at 1209, we
owe no deference to the administrative agency’s view of the
First Amendment.
[9] Deploying the NLRA to protect the employees’ efforts
in support of the Union would risk “circumscrib[ing] the full
freedom and liberty of [the News-Press] to publish the news
as it desires it published [and] to enforce policies of its own
choosing with respect to the editing and rewriting of news for
publication.” Associated Press, 301 U.S. at 133. The injunc-
tion the Regional Director seeks here would prevent the
News-Press from taking action against employees for engag-
ing in activities calculated to pressure the News-Press into
limiting its exercise of editorial discretion. We conclude that
the requested interim relief would risk violating the News-
Press’s constitutionally protected editorial discretion by
removing an otherwise available weapon to resist employees’
attempts to seize control over the newspaper’s content. See
Tornillo, 418 U.S. at 256 (“Governmental restraint on pub-
lishing need not fall into familiar or traditional patterns to be
subject to constitutional limitations on governmental pow-
ers.”).
[10] We do not pass judgment on the validity of the
employees’ concerns with respect to journalistic integrity. We
cannot, however, ignore the Supreme Court’s teaching on the
subject: “A responsible press is an undoubtedly desirable
1468 MCDERMOTT v. AMPERSAND PUBLISHING
goal, but press responsibility is not mandated by the Constitu-
tion and like many other virtues it cannot be legislated.” Id.
No matter how laudable the goals of the fired reporters in pro-
moting the Union to, as the ALJ put it, “restore journalistic
integrity,” the risk that granting an injunction will infringe the
News-Press’s right to publish what it pleases is inescapable.
See id. (declaring that any “compulsion exerted by govern-
ment on a newspaper to print that which it would not other-
wise print” is unconstitutional); see also Laird v. Tatum, 408
U.S. 1, 11 (1972) (“[C]onstitutional violations may arise from
the deterrent, or ‘chilling,’ effect of governmental regulations
that fall short of a direct prohibition against the exercise of
First Amendment rights.”). For that reason, we conclude that
the district court did not err in concluding that the additional
requirements of Overstreet must be met in evaluating whether
to grant the Section 10(j) petition.
The dissenting opinion concludes that the proposed injunc-
tion does not pose a significant risk of infringing the First
Amendment because it does not directly “require the paper to
change its editorial policy” or “dictat[e] what a newspaper
must publish.” Infra at 1479, 1480. We think that approach
closes its eyes to what the underlying labor dispute here is
about: the ability of the newspaper owner and publisher to
exercise control over the news pages of the News-Press. See
Tornillo, 418 U.S. at 259 (White, J., concurring) (“[T]he First
Amendment erects a virtually insurmountable barrier between
government and the print media so far as government tamper-
ing, in advance of publication, with news and editorial content
is concerned.”). Intervening to support the employees’ effort
to limit the control of the News-Press’s owner over its news
pages necessarily poses some risk to that owner’s First
Amendment rights. See Pacific Gas & Electric Co. v. Public
Utilities Com., 475 U.S. 1, 33 (1986) (“[I]nterference with the
exercise of editorial control and judgment creates a peril for
the liberty of the press like government control over what is
to go into a newspaper.” (internal quotation marks omitted));
see also Regan v. Taxation With Representation of Washing-
MCDERMOTT v. AMPERSAND PUBLISHING 1469
ton, 461 U.S. 540, 553 (1983) (Blackmun, J., concurring) (“It
hardly answers one person’s objection to a restriction on his
speech that another person, outside his control, may speak for
him.”); Tornillo, 418 U.S. at 258 (observing that “[a] newspa-
per is more than a passive receptacle or conduit for news,
comment, and advertising” and holding that government
action “fails to clear the barriers of the First Amendment”
when it “intru[des] into the function of editors.”)).
Telling the newspaper that it must hire specified persons,
namely the discharged employees, as editors and reporters
constituting over 20 percent of its newsroom staff is bound to
affect what gets published. To the extent the publisher’s
choice of writers affects the expressive content of its newspa-
per, the First Amendment protects that choice. See Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston,
515 U.S. 557, 572-73 (1995) (holding that because “every
participating . . . unit affects the message conveyed by [a
parade’s] private organizers,” a state court’s interpretation of
a law to require inclusion of one group of prospective march-
ers “violates the fundamental rule of protection under the First
Amendment, that a speaker has the autonomy to choose the
content of his own message”); see also First Nat’l Bank of
Boston v. Bellotti, 435 U.S. 765, 784-85 (1978) (“In the realm
of protected speech, the legislature is constitutionally disqual-
ified from dictating . . . the speakers who may address a pub-
lic issue.”).
The dissenting opinion also contends that the First Amend-
ment rights of the News-Press and its owner would be unaf-
fected because the newspaper would be free to operate as it
did before, without change. But that assumes that the Union’s
efforts to effect a change will fail. It is surely not the premise
of the ALJ’s decision or the proposed injunction that the
newspaper owner will prevail and that the employees’ efforts
are bound to be for naught. There would be no point to
requesting or ordering interim relief here unless it was
expected to have an impact. The proposed injunction is aimed
1470 MCDERMOTT v. AMPERSAND PUBLISHING
at strengthening the Union’s hand against the owner, and that
will impair the owner’s right to control the newspaper’s con-
tent. It may be true, as the dissenting opinion states, infra at
1483, that “[t]here is no more reason to expect the News-
Press would be forced to agree to reestablish a firewall than
to expect it to be forced to capitulate to employees’ other con-
tract demands.” But employers are regularly forced by unions
to capitulate to more traditional wage and hour demands. See
NLRB v. Trimfit of California, Inc., 211 F.2d 206, 208-209
(9th Cir. 1954) (affirming an NLRB order requiring reinstate-
ment of pro-Union former employees); see also 29 U.S.C.
§ 157 (codifying the rights of employees “to bargain collec-
tively . . . and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection”) (emphasis added). The risk of that happening is far
from zero.
First Amendment rights are not jeopardized when it comes
to those wage and hour demands — a newspaper is not pro-
tected by the First Amendment against having to pay more
money to its reporters — but freedom of the press is jeopar-
dized when the employees’ primary demand is for the pub-
lisher to cede control of her newspaper’s content. In sum, we
do not share the view of the dissenting opinion that the News-
Press’s ability to control its content would not be put in at
least some risk by the requested injunction. As a result, we
agree with the district court that Overstreet’s heightened equi-
table relief standard applies.
B. The District Court Did Not Abuse Its Discretion in
Finding the Equities Did Not Weigh in Favor of Grant-
ing Relief
The district court concluded that the Regional Director
failed to meet the heightened burden for interim relief, given
the First Amendment concerns it identified. Though the dis-
trict court may have been guided by the “too lenient” prelimi-
nary injunction standards of our pre-Winter cases, we will not
MCDERMOTT v. AMPERSAND PUBLISHING 1471
disturb its denial of relief unless the denial itself constituted
an abuse of discretion.9 See Am. Trucking Ass’n, 559 F.3d at
1052 (“The district court applied our pre-Winter approach, but
because it denied relief that, itself, does not require rever-
sal.”). If we would affirm the denial of an injunction under
our prior standard, we would necessarily affirm the denial of
that injunction under the more stringent Winter standard. Cf.
Johnson v. Couturier, 572 F.3d 1067, 1084-85 (9th Cir. 2009)
(affirming the grant of injunctive relief “[a]lthough the valid-
ity of the district court’s approach [was] questionable post-
Winters,” when its analysis impliedly supported the necessary
finding of irreparable harm).
In light of the First Amendment issues in this case, we con-
clude that the district court did not abuse its discretion by
declining to grant preliminary injunctive relief. The standard
for such relief is a tough one, taking into account Overstreet’s
increased demands. See 409 F.3d at 1208 n.13 (“[W]here, as
here, there is at least some risk that constitutionally protected
speech will be enjoined, only a particularly strong showing of
likely success, and of harm to the defendant as well, could
suffice.”); see also Miller, 19 F.3d at 460-61 (“Where the
Board and the respondent each make a showing of hardship,
the district court must exercise its sound discretion to deter-
mine whether the balance tips in the Board’s favor.”); accord
Winter, 129 S. Ct. at 376 (“In each case, courts must balance
the competing claims of injury and must consider the effect
on each party of the granting or withholding of the requested
[injunctive] relief.”) (internal quotation marks omitted).
We start the analysis, as did the district court, by consider-
ing the likelihood of success. In this case, success for the
9
Given the district court’s application of Overstreet’s raised bar for pre-
liminary injunctive relief (which applies post-Winter as well), it is not
clear whether the standard applied was actually more lenient than the one
announced in Winter, which did not address any First Amendment con-
cerns.
1472 MCDERMOTT v. AMPERSAND PUBLISHING
Regional Director is defined by whether the Board would
adopt the findings and recommendations of the ALJ and
whether, in that event, our court would conclude that the
Board’s order should be enforced.
As a preliminary matter, we note that we do not presume
that the Regional Director’s position will ultimately be
adopted by the Board. A Board itself deciding to file a Section
10(j) petition might signal its future decision on the merits,
assuming the facts alleged in the petition withstand examina-
tion at trial. See Overstreet, 409 F.3d at 1207 n.12. In this
case, however, the Board initially declined to file a petition
for relief. It was only after the Board delegated its authority
to its General Counsel that a petition for interim relief was
actually filed. See id. (remarking that since regional directors
determine whether to file Section 10(l) petitions such filings
“suggest[ ] nothing about how the Board will ultimately
resolve the case”). The fact that “the General Counsel issued
a complaint and an ALJ ruled in favor of the General Counsel
by no means foreordains the Board’s decision.” Id.
[11] For the most part, the district court appeared to address
the factors relevant to the question of likelihood of success
within its discussion of Overstreet’s application in light of the
First Amendment interests implicated by the requested relief.
Having already concluded that the First Amendment rights of
the News-Press were at risk of being infringed, the district
court simply concluded that “it [could not] find that [the
Regional Director] has such a strong likelihood of success as
to presume irreparable harm.” McDermott, 2008 U.S. Dist.
LEXIS 94596, at *41. As revealed in its discussion of the sub-
sequent factors, the most the district court appeared willing to
grant the Regional Director’s position was the unexplored
possibility that it presented “serious questions going to the
merits.” Id. at *45. Under Winter, of course, that would not
be enough to support the entry of a preliminary injunction,
regardless of the other factors. As suggested in our own dis-
cussion of Overstreet above, we conclude that the district
MCDERMOTT v. AMPERSAND PUBLISHING 1473
court did not abuse its discretion in this portion of its evalua-
tion.
[12] The next element to be considered is irreparable harm.
The Regional Director contends that a failure to grant the
requested injunction will result in irreparable harm to the dis-
charged employees and the Union’s collective bargaining
efforts. The district court concluded, however, that entering a
preliminary injunction would not actually make much differ-
ence, primarily due to the passage of time. Specifically, the
court found “little basis to believe, given the long delay, that
an interim order at this point will provide any genuine reas-
surance to employees beyond that provided by a final Board
order that unfair labor practices committed by [the News-
Press] will be timely remedied.” Id. at *44-45. We do not dis-
agree with that assessment.
We note that “[d]elay by itself is not a determinative factor
in whether the grant of interim relief is just and proper.”
Aguayo ex rel. NLRB v. Tomco Carburetor Co., 853 F.2d 744,
750 (9th Cir. 1988), overruled on other grounds by Miller, 19
F.3d 449. The factor of delay “is only significant if the harm
has occurred and the parties cannot be returned to the status
quo or if the Board’s final order is likely to be as effective as
an order for interim relief.” Id. Most of the delay in this case
has resulted from the time taken by the litigation process
itself, and the Regional Director cannot be faulted for that.
But at least some of the delay was caused by the Regional
Director’s deferred petition for preliminary injunctive relief.
Among other measures, the Regional Director requests
reinstatement of eight employees who were discharged
between October 2006 and February 2007. The Section 10(j)
petition requesting the employees’ interim reinstatement was
not filed until March 2008, some 13 to 17 months after the
employees were discharged. The Regional Director asserts
that the decision to seek Section 10(j) authorization was pru-
dently postponed until the ALJ issued its decision, but in June
1474 MCDERMOTT v. AMPERSAND PUBLISHING
2007, two months before the hearing before the ALJ, the
Board refused the Regional Director’s request for permission
to bring a Section 10(j) petition in this case. The Board’s tem-
porary delegation of authority to the General Counsel to initi-
ate Section 10(j) proceedings became effective just two days
after the ALJ’s decision was issued. The Regional Director
waited over two months after that to file the instant petition.
Under the circumstances, it is not apparent to us that the
district court was wrong in concluding that a preliminary
injunction would not actually make a practical difference
here. At this point, the parties appear to be waiting for the
Board’s adjudication. It seems unlikely that a final order of
the Board would be any less effective as a result of the denial
of interim relief.
[13] Moving to the balance of hardships, the district court
concluded that the balance did not tip sharply in favor of
granting equitable relief, again applying the pre-Winter stan-
dard under which preliminary injunctive relief could be sup-
ported by serious questions on the merits plus a strong
showing of irreparable harm and a sharp tipping of the bal-
ance of hardships. We are not entirely confident that the dis-
trict court gave appropriate weight to the rights of the
discharged employees in weighing this balance, because it
appeared to express equal concern for what would happen to
the jobs of employees hired by the News-Press to replace the
discharged Union members. The rights of improperly dis-
charged employees, assuming they were in fact wrongfully
terminated, are superior to those of their replacements.
Aguayo, 853 F.2d at 750. Primarily, though, the district court
focused on what is, in fact, the primary conflict here: the
rights of the employees to organize versus the right of the
newspaper to exercise and defend what it asserts are its First
Amendment rights. We agree with the district court’s determi-
nation that the Regional Director has not made a showing that
MCDERMOTT v. AMPERSAND PUBLISHING 1475
the balance of hardships tips in his favor to the degree that
would be necessary to support the interim relief sought here.10
III. Conclusion
In sum, we affirm the district court’s denial of the Regional
Director’s Section 10(j) petition for interim relief. The factual
findings on which its decision rests are not clearly erroneous.
The district court correctly applied Overstreet’s increased
demands given the First Amendment concerns at issue and
did not abuse its discretion in concluding that relief was not
“just and proper” based on its assessment of the traditional
equitable factors.
AFFIRMED.
HAWKINS, Circuit Judge, Dissenting:
The majority relies on cases in which the party seeking an
injunction was attempting to enjoin speech, claiming the
result here necessarily follows from cases (1) reviewing a
decision forcing a union to cease expressing its views through
bannering, Overstreet v. United Bhd. of Carpenters, Local
Union No. 1506, 409 F.3d 1199, 1203 (9th Cir. 2005), (2)
seeking to compel a newspaper to publish content from a
political candidate, Miami Herald Publ’g Co. v. Tornillo, 418
U.S. 241, 243 (1974), or (3) reviewing an order requiring a
newspaper to resume publishing a weekly column to which it
objected, Passaic Daily News v. NLRB, 736 F.2d 1543, 1548
10
The district court did not separately discuss the fourth factor subse-
quently identified by the Supreme Court in Winter, the public interest. 129
S. Ct. at 374. A strong claim can be presented on behalf of the right of
employees to organize and bargain collectively, but, as noted above, that
right does not trump the First Amendment, so it cannot justify entry of a
preliminary injunction that was denied by the district court based on con-
sideration of the other factors.
1476 MCDERMOTT v. AMPERSAND PUBLISHING
(D.C. Cir. 1984). In other words, the majority finds the
grounds for its conclusion in cases seeking to enjoin or com-
pel speech or its content.
This is not such a case. The injunction here only seeks rein-
statement for terminated employees. Period. It does not enjoin
speech. Rather, the injunction addresses troublesome, retalia-
tory terminations and disciplinary actions the News-Press
took only after union organizing began. The injunction
addresses terms and conditions of employment, and it leaves
the News-Press’s right to publish its desired content entirely
intact.1 Under the injunction, the News-Press was and is per-
1
The proposed injunction reads as follows:
[The News-Press shall] Cease and desist from:
(a) Discharging employees for engaging in Union or other pro-
tected concerted activities;
(b) Informing employees that they will be suspended for
engaging in Union or other protected concerted activities;
(c) Retaliating against employees for engaging in Union or
other protected concerted activities by inter alia giving them poor
work evaluations;
(d) Threatening employees with discipline and discharge if
they engage in peaceful employee conduct, such as employee del-
egations;
(e) Prohibiting employees from wearing buttons with protected
messages, such as “McCaw, Obey the Law”;
(f) Prohibiting employees from displaying signs with protected
messages, such as “McCaw, Obey the Law”;
(g) Coercively interrogating employees, verbally or in writing,
concerning their Union or other protected activities;
...
Take the following affirmative action:
(a) Within five days of the issuance of this Order, offer interim
reinstatement to [the eight fired employees] to their former job
positions and working conditions, or if those job positions no lon-
ger exist, to substantially equivalent positions without prejudice
MCDERMOTT v. AMPERSAND PUBLISHING 1477
fectly free to insist on total editorial control in labor negotia-
tions, leaving it able to lockout employees who do not agree
to such terms.
The News-Press sees this case as one in which it may have
to withstand economic pressure from its employees who are
unhappy with the paper’s management. Exerting such pres-
sure is the very essence of union activity. “[T]he reason for
labor organizations . . . [is] to give laborers opportunity to
deal on an equality with their employer.” NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 33 (1937). Where, as here,
an injunction does not implicate First Amendment concerns,
this core purpose of the National Labor Relations Act
(“NLRA”) is properly protected through a section 10(j)
injunction when organizing employees are fired because of
their union activities.
Three facts are critical here. First, this case is not about the
six editors and reporters who resigned citing editorial differ-
ences with the News-Press. It is about the eight newsroom
employees who responded to what they saw as arbitrary man-
agement by seeking union protection, and were then fired for
their union activities. Second, only after the fired employees
engaged in the protected union activity did the News-Press
bring any issue regarding their alleged “bias” or “disloyalty”
to the employees’ attention or note such issues in their person-
to their seniority or other rights and privileges previously
enjoyed, displacing, if necessary, any newly hired or reassigned
workers;
(b) Within five days of the issuance of this Order, rescind and
remove from the personnel files of [the eight fired employees]
any reference to their discharges, pending the final decision of
the Board;
(c) Within five days of the issuance of this Order, rescind and
remove from all personnel files any reference to warnings or
notices of suspensions given to any employee for participating in
the employee delegation . . . .
1478 MCDERMOTT v. AMPERSAND PUBLISHING
nel files. Third, examining these facts in a thoughtful, 75-page
opinion, following a 17-day trial, the ALJ concluded the
News-Press committed numerous unfair labor practices, and
the employees’ union activities prompted the News-Press’s
challenged actions. The ALJ thus recommended relief, includ-
ing reinstatement of the eight discharged employees.
A. Deference to the Board
The majority’s opinion turns in part on finding Overstreet
controlling. Maj. Op. 1461, 1468, 1475. However, beyond the
magic words of “the National Labor Relations Act” and “the
First Amendment,” the facts of Overstreet, a secondary boy-
cott case, are fundamentally different.2
In Overstreet, the outcome turned in part on whether the
union’s bannering activities constituted “threaten[ing], coerc-
[ing], or restrain[ing] any person engaged in commerce”
under Section 8(b)(4)(II) of the NLRA. The opinion charac-
terized those words as “vague” and their application as “far
from self-evident.” Overstreet, 409 F.3d at 1212. Given this
ambiguity, the court inquired into whether the Board’s “pro-
posed construction of the Act ‘would give rise to serious con-
stitutional questions’ ” and therefore require construing
ambiguous statutory language to avoid such questions. Id. at
1209 (quoting NLRB v. Catholic Bishop of Chicago, 440 U.S.
490, 501 (1979)). Overstreet held “serious constitutional
questions” are implicated where an injunction would present
“a significant risk that the First Amendment will be infringed”
even without deciding whether the proposed injunction would
actually violate the First Amendment. Id. (quoting Catholic
Bishop of Chicago, 440 U.S. at 502). Because one permissible
2
I agree with the majority’s statement that there is “no reason” the anal-
ysis from Overstreet should not survive the Supreme Court’s decision in
Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008),
but this does not alter my conclusion that the majority is incorrect to apply
the Overstreet analysis here.
MCDERMOTT v. AMPERSAND PUBLISHING 1479
interpretation of Section 8(b)(4)(II) avoided those questions
and the risk of infringing the First Amendment, the court
applied the uninfringing interpretation. See id at 1209-10.
Unlike Overstreet, here, the NLRA’s protections of
employees’ rights to “assist labor organizations” and “to
engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection” clearly
apply to media employees, because the Supreme Court has
held an agency of the press has no “special immunity” from
application of the NLRA or any general law. Associated Press
v. NLRB, 301 U.S. 103, 132-33 (1937); see 29 U.S.C. § 157
(NLRA Section 7).
Section 8’s declaration of an unfair labor practice when
employers “interfere with, restrain, or coerce employees in the
exercise” of Section 7 rights “by discrimination in regard to
hir[ing] or tenure of employment or any term or condition of
employment to encourage or discourage membership in any
labor organization,” as the ALJ found the News-Press did
here, unambiguously applies. See 29 U.S.C. § 158(a). There-
fore, the Overstreet standard should not guide the present out-
come, and “the Board’s determination on the merits will be
given considerable deference.” Miller ex rel. NLRB v. Cal.
Pac. Med. Ctr., 19 F.3d 449, 460 (9th Cir. 1994).
Finding the Overstreet standard inapplicable is further but-
tressed by comparing its facts to this case. In Overstreet, the
Board sought an injunction prohibiting union bannering of
retail stores selling products from firms with which the union
had a labor dispute, pending NLRB resolution of the com-
plaint. Overstreet, 409 F.3d at 1203. The injunction thus had
direct bearing on the union’s ability to continue its speech.
That secondary-boycott situation bears no resemblance to the
facts in this case, an organizing case in which pretextually ter-
minated employees are seeking reinstatement. Indeed, the
News-Press conceded at argument that the terms of the
injunction do not require the paper to change its editorial pol-
1480 MCDERMOTT v. AMPERSAND PUBLISHING
icy, nor give employees the power to direct the editorial pol-
icy. Overstreet thus has no application to an injunction which
simply does not implicate the First Amendment risk the
News-Press alleges.
B. First Amendment Concerns
The News-Press argues the NLRA should yield to First
Amendment protections accorded the press in this case
because of a publisher’s total discretion to determine the con-
tents of its newspaper. The majority follows suit, noting “the
employee-initiated union campaign aspired in large part to
compel the publisher of the News-Press to relinquish” edito-
rial control over its free “reporting of the news.” Maj. Op.
1466. The News-Press contends that unlike Associated Press,
where the AP sought a blanket entitlement to discharge the
employee, this case directly concerns the full freedom and lib-
erty of a newspaper to publish the news as it desires and to
control the editing and rewriting of news for publication. Put
another way, the News-Press, and the majority, find distin-
guishing between an injunction reinstating employees, and an
order dictating what a newspaper must publish, a distinction
without a difference. I disagree.
The ALJ found all eight employees were fired because of
their union activities and the News-Press’s allegations of
biased reporting pretextual.3 As in Associated Press, there-
fore, this case does not present the question of whether Con-
gress has the power to interdict an employee’s discharge if a
newspaper “believed its policy of impartiality was likely to be
subverted by [an employee’s] continued service.” 301 U.S. at
132. Unlike the order requiring a newspaper to reinstate a col-
umnist and resume publication of his weekly column at issue
in Passaic, 736 F.2d at 1558-59, the injunction the Regional
3
These fact-intensive determinations are generally entitled to deference.
See, e.g., Silverman v. J.R.L. Food Corp., 196 F.3d 334, 337-38 (2d Cir.
1999).
MCDERMOTT v. AMPERSAND PUBLISHING 1481
Director sought here would only have required the News-
Press to rehire reporters, leaving intact all of its policies and
procedures related to article publication and editorial approval
process. On remand after Passaic, an order requiring the
newspaper to restore the columnist to his position and “decide
whether to publish his submissions based upon any factors
other than his union or protected activity” went unchallenged.
Herald News, 276 N.L.R.B. 605, 606 (1985).
Indeed, as the district court acknowledged, the injunctions
at issue in Miami Herald Publishing Co. v. Tornillo, 418 U.S.
at 243, and Passaic “sought in some fashion to force publica-
tion of specific content by the newspapers at issue, thus actu-
ally directing the publishers’ exercise of their editorial
discretion,” whereas the injunction sought in this case “seeks
to prevent Respondent only from disciplining its employees
who engaged in activities aimed to pressure it into limiting its
exercise of its editorial discretion.” McDermott ex rel. NLRB
v. Ampersand Publ’g LLC, 2008 U.S. Dist. LEXIS 94596, at
*28 (C.D. Cal. May 21, 2008). The district court nevertheless
concluded that because “these demands were not mere
requests but were instead backed by public concerted activity
placing economic pressure on [the News-Press] to acquiesce,”
“the sought after injunction amounts to state action limiting
Respondent’s ability to combat pressure placed on it to limit
its exercise of editorial discretion.” Id. at *28-29.
The News-Press argues along similar lines, claiming it has
a First Amendment right to discharge its employees notwith-
standing any provision of the NLRA because of their collec-
tive advocacy of a boycott directed, in part, toward forcing the
News-Press to reestablish certain journalistic standards. Cit-
ing Newspaper Guild, Local 10 v. NLRB, 636 F.2d 550 (D.C.
Cir. 1980), the district court accepted this argument, noting
the D.C. Circuit required the Board to strike a balance “be-
tween an employer’s freedom to manage his business in areas
involving the basic direction of the enterprise and the right of
employees to bargain on subjects which affect the terms and
1482 MCDERMOTT v. AMPERSAND PUBLISHING
conditions of their employment.” Ampersand, 2008 U.S. Dist.
LEXIS 94596, at *31 (quoting Newspaper Guild, 636 F.2d at
562). Citing the inapposite Tornillo opinion, the majority sim-
ilarly concludes the injunction here would “remov[e] an oth-
erwise available weapon to resist employees’ attempts to seize
control over the newspaper’s content.” Maj. Op. 1467.
Contrary to these assertions, the Director has not sought to
force the News-Press to capitulate to its employees’ demands.
In fact, unlike in Newspaper Guild, the Director has not even
ordered the News-Press to bargain over these demands in
good faith. Cf. Newspaper Guild, 636 F.2d at 557. The pro-
posed injunction would allow the News-Press to continue to
operate without a “firewall” between the editorial and news
departments if it so chose. It would also leave the News-Press
with complete editorial control, including what kind of opin-
ion pieces, if any, to publish in relation to its disputes with its
employees. The News-Press and the majority are essentially
arguing for a newspaper’s First Amendment right to be free
from its employees’ public criticism of its practices because
their criticism (and call for a boycott) is “coercive.”4 The
4
As support for this claim, the majority cites the statements of Melinda
Burns (“Burns”), who was wrongfully fired for her union activities, sug-
gesting her view that “a newsroom has to have independence from the edi-
torial side of the paper” demonstrates the First Amendment issues at stake
in this case. Maj. Op. 1466. But, despite the majority’s assertion that my
“approach closes its eyes to what the underlying labor dispute here is
about,” Maj. Op. 1468, clearly I do not presume to suggest Burns can dic-
tate to the News-Press what editorial standards it must employ. The First
Amendment unquestionably protects that determination. Nor do I doubt
that the editorial concern was a subject of the employees’ bargaining. The
NLRA cannot grant employees the power to insist upon conditions on a
newspaper’s content. The statute can, however, provide Burns, and simi-
larly situated employees, the ability to at least discuss those standards in
collective bargaining, free from the Damocles’ sword of retaliatory termi-
nation. The News-Press, of course, also remains free to reject such
requests, insisting on its rights to publish its paper as it sees fit. Contrary
to the majority’s assertions, Maj. Op. 1468-71, that right, protected for the
News-Press by the First Amendment, is not implicated on the facts of this
case.
MCDERMOTT v. AMPERSAND PUBLISHING 1483
News-Press argues it must be free to respond to this “eco-
nomic coercion” with discharge or other economic weapons
of its own or else it will have no choice but to capitulate.
In concluding “[t]he injunction the Regional Director seeks
here would prevent the News-Press from taking action against
employees,” Maj. Op. 1467, the majority proves too much. A
“company always has the legal right to discipline an
employee in a nondiscriminatory fashion for improper con-
duct. Further, any company subject to a § 10(j) injunction is
theoretically subjected to the risk of which [the News-Press]
complains.” NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1573
(7th Cir. 1996).
In addition, employees generally may advocate “a boycott
of the employer’s product, as long as the boycott is tied to a
labor dispute and does not disparage the employer’s product.”
Firestone Tire & Rubber Co., 238 N.L.R.B. 1323, 1324 (1978),
enforced, 651 F.2d 1172 (6th Cir. 1980). Consumer boycotts
pressure, but do not compel, targeted employers to capitulate
to employees’ demands, whether those demands relate to tra-
ditional compensation matters or to other “terms of employ-
ment.” There is no more reason to expect the News-Press
would be forced to agree to reestablish a firewall than to
expect it to be forced to capitulate to employees’ other con-
tract demands. Employees who desire to bargain over policies
related to journalistic integrity should not thereby be stripped
of their Section 7 rights. Even if, as in Newspaper Guild, a
balancing “between an employer’s freedom to manage his
business . . . and the right of employees to bargain” were
required, 636 F.2d at 562, an employer’s desire to be free
from public criticism of its practices is not equivalent to its
First Amendment right to choose what to publish on its pages.
It thus does not outweigh employees’ NLRA rights to protest
or bargain over the conditions of their employment.
Given the limited scope of the injunction and the employ-
ees’ clear right to organize, there is no significant risk of a
1484 MCDERMOTT v. AMPERSAND PUBLISHING
First Amendment infringement due to the requested relief,
and, therefore, the criteria for considering the injunction
should have been applied with the typical deference to the
Board. See Miller, 19 F.3d at 460-61.
C. Balancing of Equitable Criteria
By necessity, the granting of injunctive relief requires
adjustment of the parties’ rights without full adjudication of
the facts. Yet here we benefit from the ALJ having created a
substantial factual record to overlay against “the requirements
of equity practice.” Hecht Co. v. Bowles, 321 U.S. 321, 329
(1944). When “determining whether interim relief under 10(j)
is ‘just and proper,’ district courts should consider traditional
equitable criteria . . . through the prism of the underlying pur-
pose of § 10(j), which is to protect the integrity of the collec-
tive bargaining process and to preserve the Board’s remedial
power while it processes the charge.” Miller, 19 F.3d at 459-
60.
In Winter v. Natural Resources Defense Council, Inc., the
Supreme Court clarified the traditional equitable criteria,
explaining a party seeking a preliminary injunction “must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” 129 S. Ct. 365, 374 (2008).5
5
In doing so it rejected our previous standard allowing injunctive relief
on a showing of a “possibility” of irreparable injury. E.g., Natural Res.
Def. Council, Inc. v. Winter, 518 F.3d 658, 677 (9th Cir. 2008). I follow
the majority in assuming without deciding that the Supreme Court’s deci-
sion in Winter alters our previous statements in Miller of the showing a
party must make to obtain injunctive relief under section 10(j). I also see
no reason why Winter disturbs our other statements in Miller instructing
courts to consider the traditional equitable criteria against the backdrop of
section 10(j)’s purpose.
MCDERMOTT v. AMPERSAND PUBLISHING 1485
Rejecting Overstreet’s applicability in this case, I would
find the district court abused its discretion in denying the
injunction. Though the district court was conscientious in its
analysis, finding the Director unlikely to prevail on the merits
was grounded in the erroneous legal premise that employees’
attempts to negotiate aspects of the editorial process strip
them of the NLRA’s protection. With the proper protection
and deference to the Board in place, the ALJ’s findings show
a clear likelihood of success on the merits, and the other equi-
table factors are met as well.
When concluding Overstreet’s standard of review does not
apply, courts view the Director’s probability of prevailing “in
light of the fact that ultimately, the Board’s determination on
the merits will be given considerable deference.” Miller, 19
F.3d at 460. Here, the ALJ’s extensive factual findings detail
a variety of unfair labor practices orchestrated by the News-
Press and include reasonable findings that key testimony
offered on the News-Press’s behalf was not credible and the
justifications advanced for its actions were in large part pre-
textual.
Under the facts here there are multiple irreparable injuries
due to the terminations and subsequent rejection of the injunc-
tion. “To permit illegal employer conduct to go unaddressed
while the Board’s corrective machinery grinds toward resolu-
tion would subvert the underlying purposes of section 10(j)
and allow those who commit unfair labor practices to reap the
benefits of that conduct.” Scott ex rel. NLRB v. Stephen Dunn
& Assocs., 241 F.3d 652, 660 (9th Cir. 2001). Thus, unlawful,
unremedied discharges create adverse impacts on employees’
interests in union organizing, and the union’s ability to bar-
gain irreparably deteriorates as this situation is allowed to
continue. See Pye ex rel. NLRB v. Excel Case Ready, 238 F.3d
69, 74-75 (1st Cir. 2001) (“[T]he discharge of active and open
union supporters . . . risks a serious adverse impact on
employee interest in unionization and can create irreparable
harm to the collective bargaining process.”) (internal quota-
1486 MCDERMOTT v. AMPERSAND PUBLISHING
tion marks omitted); Electro-Voice, Inc., 83 F.3d at 1573 (“As
time passes the likelihood of union formation diminishes, and
the likelihood that the employees will be irreparably deprived
of union representation increases.”).
An unlawful discharge also causes the irreparable harm of
removing union supporters from the workplace at the time
when the union is in most need of support. See Electro-Voice,
Inc., 83 F.3d at 1573. Here, the longer the complaint sits with
the Board without action, the weaker the union appears to
remaining employees and the less energy exists in support of
unionization, injuries that are immeasurable and irreparable.
The balance of hardships and the public interest also tip in
favor of “ensur[ing] that an unfair labor practice will not suc-
ceed” because “declining to issue the injunction will permit
the allegedly unfair labor practice to reach fruition and
thereby render meaningless the Board’s remedial authority.”
Miller, 19 F.3d at 460.
The majority puts significant emphasis on the Board’s
delay in filing an injunction, citing the passage of time as the
only factor supporting its conclusion that denial of the injunc-
tion resulted in no irreparable harm. Maj. Op. 1473. Yet the
majority’s entire discussion of the Board’s delay (and thus its
entire discussion of irreparable harm) cites only one case, and
in that case this court actually rejected the argument the
majority recycles regarding the importance of the Board’s
delay in filing the injunction.
In Aguayo ex rel. NLRB v. Tomco Carburetor Co., 853
F.2d 744, 750 (9th Cir. 1988), overruled on other grounds by
Miller, 19 F.3d at 455-56, we dismissed an argument made
pursuant to the Fifth Circuit’s decision in Boire v. Pilot
Freight Carriers, Inc., which, like the majority, found Board
delay critical to denying an injunction, see 515 F.2d 1185,
1193 (5th Cir. 1975). We noted the delay argument was “not
persuasive,” stating “[d]elay by itself is not a determinative
MCDERMOTT v. AMPERSAND PUBLISHING 1487
factor in whether the grant of interim relief is just and prop-
er.” Aguayo, 853 F.2d at 750. Yet the majority references
Aguayo and then proceeds to reason from the premise Aguayo
rejected, claiming the Board’s delay is so important here that
it constitutes the entire irreparable harm analysis.
Perhaps the majority cites no cases for this proposition
because we have specifically rejected the reasoning underly-
ing an approach attaching such importance to Board delay.
We have previously noted that the view Boire and the major-
ity advance “actually hinders rather than protects the collec-
tive bargaining process” because “ ‘the underlying purposes
of section 10(j) are to protect the integrity of the collective
bargaining process and to preserve the [Board]’s remedial
power while the Board resolves the unfair labor practice
charge.’ ” Scott, 241 F.3d at 660 (quoting Miller, 19 F.3d at
452).
Other circuits, though recognizing the troublesome conse-
quences of the Board’s delay in filing an injunction, have
agreed, distinguishing Boire and declining to attach disposi-
tive weight to Board delay. See, e.g., Muffley v. Spartan Min-
ing Co., 570 F.3d 534, 544-45 (4th Cir. 2009) (noting the
troubling nature of the Board’s 18-month delay in seeking an
injunction, but finding the balance of harms, the likelihood of
success on the merits, and the “strong public policy” favoring
injunctive relief, supported an injunction); see also Levine v.
C & W Mining Co., 610 F.2d 432, 437 (6th Cir. 1979) (noting
approaches contrary to Boire are “more in accord with the
purposes of the Act”).6
6
Significant delay in the 10(j) process is not unique to this case and is,
in fact, a common criticism leveled at the Board. See, e.g., Catherine L.
Fisk & Deborah C. Malamud, The NLRB in Administrative Law Exile:
Problems With its Structure and Function and Suggestions for Reform, 58
Duke L.J. 2013, 2028 (2009) (“One criticism frequently leveled at the
NLRA is that the relative mildness of the remedies (reinstatement plus
back pay) and the slowness of the administrative process (it can take years
1488 MCDERMOTT v. AMPERSAND PUBLISHING
Though these cases show no excuse necessary, two related
facts serve to justify the Board’s delay in this case. Generally,
the Board argues it was waiting for the ALJ to develop the
administrative record to prevent the district court and the ALJ
from simultaneous review. This efficiency justification could
in some instances be sufficient to justify delay. See Hirsch v.
Dorsey Trailers, Inc., 147 F.3d 243, 248-49 (3d Cir. 1998). In
addition, the Supreme Court has recently granted certiorari in
a case to resolve whether adjudicative decisions made by only
two of the NLRB’s five members are valid. See New Process
Steel, L.P. v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert.
granted, 77 U.S.L.W. 3670 (U.S. Nov. 2, 2009) (No. 08-
1457). Though the question in New Process Steel does not
implicate the Board’s authority here in its prosecutorial role,
see Muffley, 570 F.3d at 540, the uncertain legal status of the
NLRB, as the Supreme Court has recognized, provides fur-
ther, reasonable justification for delays in decision making.
This justification is particularly salient because, here, the
delay in filing the section 10(j) injunction, after the ALJ’s
decision, occurred precisely when the cases questioning the
Board’s ability to act without a quorum were moving through
the NLRB and subsequently the courts of appeal. See, e.g.,
Laurel Baye Healthcare, LLC, 352 N.L.R.B. 179 (2008)
(decided one week before injunction was filed in present
case).
Despite the passage of time, the union’s negotiations for its
initial collective bargaining agreement with the News-Press
are ongoing and the union’s position has been weakened by
the absence of the key union-supporting employees who were
discharged and by the remaining employees’ fears stemming
from the filing of a complaint by an aggrieved employee to the issuance
of an enforceable order) creates a huge incentive for employers to deliber-
ately violate the statute knowing that they will reap the benefit of illegal
conduct for a long time, if not permanently in the case of a successful
defeat of an organizing campaign.”).
MCDERMOTT v. AMPERSAND PUBLISHING 1489
from those discharges. Continued delay may cause the dis-
charged employees to find other work, denying the union of
the benefits of their active support and accumulated experi-
ence, and the passage of time thus does not obviate the need
for injunctive relief. Nor does this subversion of the NLRA
benefit the public interest.
The majority also glosses over a significant district court
error, conceding they “are not entirely confident that the dis-
trict court gave appropriate weight to the rights of the dis-
charged employees.” Maj. Op. at 1474. I agree. The district
court erred in its acceptance of the News Press’s alleged harm
relating to the replacement workers it has hired because “the
predominant focus under section 10(j) is the harm to the bar-
gaining process,” and the “rights of the employees who were
discriminatorily discharged are superior to the rights of those
whom the employer hired to take their places.” Aguayo, 853
F.2d at 750.
In emphasizing the Board’s delay in seeking the injunction,
rehashing its First Amendment arguments, and explaining
away the district court’s misunderstanding of important prece-
dent, Maj. Op. 1473-75, the majority neglects discussion of
the irreparable harms that exist regardless of any delay: rights
of wrongfully discharged employees, id. at 750, the firings’
damage to the organizing drive, Scott, 241 F.3d at 660, and
potential weakening of the Board’s remedial authority, id., all
of which are also relevant to the balance of the equities and
the public interest.
Finally, in evaluating the fired employees’ petition, the dis-
trict court assumed the correctness of the ALJ’s thorough
findings, reasoning that it “lack[ed] a basis to conclude” that
“animus toward the Union and its demands was not the
motive for the [News-Press’s] actions.” The majority also
finds no basis, because one does not exist, for questioning
these serious determinations that employees seeking to form
a union were fired only after union organizing began.
1490 MCDERMOTT v. AMPERSAND PUBLISHING
In short, the majority applied the incorrect legal standard,
leading it to the incorrect result. “Instead of offering a credi-
ble explanation for its actions, the [News-Press] relied on a
pretextual justification and contended that the First Amend-
ment served as a shield that prevented the Board from chal-
lenging the decision and inquiring into its motives.” Passaic,
736 F.2d at 1553. Because the majority begins by accepting
the notion that who a newspaper employs necessarily deter-
mines its content, it finds the News-Press exempt from the
labor laws other employers must follow. Instead, I would rec-
ognize the scope of the injunction is limited to reinstatement
only, and under the injunction the News-Press would still be
able to publish its paper as it sees fit. In failing to make this
distinction, the district court applied the incorrect standard
and analysis, abusing its discretion.
I would reverse and direct the district court to issue and
enforce the injunction sought by the NLRB.