Ampersand Publishing, LLC v. National Labor Relations Board , 702 F.3d 51 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2012 Decided December 18, 2012
No. 11-1284
AMPERSAND PUBLISHING, LLC, DOING BUSINESS AS SANTA
BARBARA NEWS-PRESS,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
GRAPHICS COMMUNICATIONS CONFERENCE OF THE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
INTERVENOR
Consolidated with 11-1348
On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations
Board
L. Michael Zinser argued the cause for petitioner. With
him on the briefs were Glenn E. Plosa, Carter G. Phillips, and
Paul J. Zidlicky.
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Kira Dellinger Vol, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, and Julie
Broido, Supervisory Attorney.
Ira L. Gottlieb argued the cause and filed the brief for
intervenor. With him on the brief was James B. Coppess.
Before: SENTELLE, Chief Judge, HENDERSON, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Petitioner Ampersand
Publishing, LLC, publishes a daily newspaper, the Santa
Barbara News-Press. In 2006 a long-smoldering dispute
between Ampersand and newsroom staff, regarding control of
the News-Press’s content, burst into flames. We are asked to
review the National Labor Relations Board’s conclusion that
Ampersand committed various unfair labor practices in the
course of the fight. We hold that the National Labor Relations
Act did not protect the bulk of the employees’ activity and
that the Board’s misconception of the line between protected
and unprotected activity tainted its analysis. Because we can
conceive of no principle by which the Board could cleanse
that taint, we grant the petition for review, vacate the Board’s
decision and order, and deny the cross-application for
enforcement.
* * *
Wendy McCaw, Ampersand’s owner, purchased the
News-Press in 2000. Between 2004 and the spring of 2006
there were a number of wrangles between her and the news
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staff over what she perceived as bias in their reporting. She
backed her claims with survey data indicating that readers saw
the News-Press reporters as injecting their views into their
reports, and with specific critiques of articles that in her view
tended to slight the interests of wildlife (and the friends of
wildlife) in interactions between wildlife and residents.
Ampersand Publishing, LLC, 357 NLRB No. 51, at 14-15
(2011) (ALJ Op.). In 2006 McCaw and Arthur von
Wiesenberger became the newspaper’s co-publishers, and the
clash intensified. As the Board put it, the dispute was over “a
series of management decisions . . . that led employees to
believe that the new publishers were inappropriately
interfering with the work of the employees on the news-
gathering side of the paper.” Id. at 1 (Board Op.). In May
2006 reporters took umbrage when the publishers limited
coverage of a News-Press editor’s arrest and sentencing for
driving while intoxicated. In June, the publishers
reprimanded a reporter and three editors for printing the home
address of a prominent actor living near Santa Barbara. Id. at
16-17 (ALJ Op.). The same day as the News-Press published
the actor’s address, management circulated a new policy
banning “unauthorized disclosure, release, sharing or leaking
of any proprietary, personnel or other information involving
the New[s]-Press to [any] other news organization or media
outlet.” Id. at 18. More than a dozen employees resigned,
calling the policy a “gag order.”
On July 3, the two publishers left for vacation and the
editor who had been arrested for alleged drunk driving
became acting publisher. Two editors resigned July 5, and a
raft of additional resignations ensued (at least nine on July 6,
and one on each of July 7, 12 and 18), accompanied by a
flurry of angry memos relating to control over content. Id. at
18-19. One employee, later fired, sought out the assistance of
the Graphics Communications Conference of the International
Brotherhood of Teamsters, and arranged a meeting in her
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house on July 6. Id. at 19. On July 13, 2006, the employees
served News-Press management with four demands, the first
of which was aimed at limiting the publishers’ “interference”
with news content:
1. Restore journalism ethics to the Santa Barbara News-
Press: implement and maintain a clear separation between
the opinion/business side of the paper and the news-
gathering side.
2. Invite back the six newsroom editors who recently
resigned . . . .
3. Negotiate a contract with the newsroom employees
governing our hours, wages, benefits and working
conditions.
4. Recognize the [union] as our exclusive bargaining
representative.
Id. at 2 (Board Op.).
Union-supporting employees held a series of rallies and
demonstrations, most of which took place in a public square
outside the News-Press headquarters. At the first rally, on
July 14, 2006, approximately 20 employees protested the “gag
order” by putting duct tape over their mouths. Employees
held another rally four days later, whose theme, according to a
staff-written article in the News-Press, was “restoring the wall
between opinion and the news.”
On July 20, 2006, the employees began a campaign for
News-Press readers to threaten to cancel their subscriptions if
Ampersand did not accede to the employees’ demands. They
distributed subscription cancellation pledge cards outside
News-Press headquarters that day, as well as at public events
in the following weeks. At rallies, they displayed a banner
5
reading “Cancel Your Newspaper Today.” The cancellation
drive rested overwhelmingly on the employees’ quest for
autonomy. For example, the printed pledge cards stated that
the reason for the signers’ threat to cancel was that they
“support[ed] the Santa Barbara News-Press newsroom staff in
its effort to restore journalistic integrity to the paper, obtain
union recognition and negotiate a fair employment contract.”
Joint Appendix (“J.A.”) 1601 (emphasis added).
Journalistic ethics and autonomy remained the theme in
the ensuing weeks. At a public forum on July 26, 2006, staff
writer Melinda Burns described her remarks as being “on
behalf of a majority of newsroom employees who desperately
want to be able to practice our profession in an atmosphere
of . . . journalism ethics. . . . Above all, we hope to restore the
News-Press as a place where openness and fairness in
reporting—the foundations of a free press—will again flourish
and thrive.” Id. at 1602-03. After employees elected the
union as their collective-bargaining representative on
September 27, 2006, an employee told an interviewer, “We
need a contract that guarantees that journalistic integrity is
returned to this newsroom. . . . We need a contract that
guarantees we’re treated with the respect we deserve. And we
need a contract that gives this community a newspaper it
deserves.” Id. at 1609.
On the morning of February 2, 2007, several employees
hung two large banners on either side of a footbridge over
Highway 101 in the Santa Barbara area, urging viewers:
“Cancel Your Newspaper Today.” Smaller, ancillary signs
urged drivers to “Protect Free Speech.” Ampersand
Publishing, 357 NLRB No. 51, at 47, 50 (ALJ Op.).
In the course of the dispute, Ampersand discharged nine
union-supporting employees—two allegedly for biased
reporting, a third for refusing to fire one of the allegedly
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biased reporters, and six for participating in the Highway 101
event. Petitioner cancelled another union supporter’s column
and gave four others lower annual evaluation scores than they
had received in the past. After the union and a former
newsroom supervisor filed complaints against Ampersand, the
ALJ found—and the Board affirmed—that each of these
actions violated § 8(a)(1) and/or § 8(a)(3) of the Act. The
ALJ and Board further concluded that Ampersand violated
§ 8(a)(1) by coercively interrogating employees about union
activity, surveilling union activity, and requiring employees to
remove buttons and signs that said “McCaw Obey the Law.”
In its decision, the Board asserted that the employees’
concerted actions “were not in protest against a change in the
[paper’s] editorial stance,” id. at 3 (Board Op.); it thus
implicitly acknowledged the publishers’ right to decide on
such matters as political endorsements. Rather, it said, the
management decisions that the workers protested “had and
threatened to have a direct impact on the autonomy [that
employees] had enjoyed in performing their work according
to their perceptions of applicable professional norms as well
as on their actual, day-to-day duties.” Id. These
“[r]estrictions on their autonomy and threats to their
professional ethics directly implicated their interests as
employees.” Id. The Board also noted that besides the
“journalistic ethics” issues, the employees were seeking
recognition of the union “as their representative for purposes
of bargaining over wages, hours, and other terms and
conditions of employment generally.” Id. at 3-4.
Between the ALJ’s and the Board’s decisions, the
Board’s Regional Director petitioned for an injunction
requiring (among other things) that the News-Press reinstate
the discharged employees. The district court for the Central
District of California denied the petition. McDermott v.
Ampersand Publishing, LLC, No. 08-1551, 2008 WL 86287287
(C.D. Cal. May 22, 2008). The Ninth Circuit affirmed.
McDermott v. Ampersand Publishing, LLC, 593 F.3d 950 (9th
Cir. 2010). Both courts rejected the Board’s parsimonious
view of the publisher’s First Amendment rights. The district
court observed: “The Union was organized, in part, to affect
[Ampersand’s] editorial discretion and undertook continual
action to do so. It therefore does not seem possible to
parse . . . [Ampersand’s] animus toward the Union generally
from its desire to protect its editorial discretion. The motives
necessarily overlapped in this case.” McDermott, 2008 WL
8628728, at *12, quoted in McDermott, 593 F.3d at 961.
Accordingly, the district court denied the injunction on the
ground that it would “significantly risk[] infringing the First
Amendment rights of” the News-Press. McDermott, 2008
WL 8628728, at *5.
* * *
We review the Board’s decision under the usual
substantial evidence standard and the requirement that the
Board’s interpretation of the Act be “reasonable and
consistent with applicable precedent.” Fashion Valley Mall v.
NLRB, 451 F.3d 241, 243 (D.C. Cir. 2006). We owe no
deference to the Board’s resolution of constitutional
questions. See, e.g., Lead Indus. Ass’n v. EPA, 647 F.2d
1130, 1173-74 (D.C. Cir. 1980).
Section 7 of the Act gives employees “the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. § 157. The “mutual aid or protection”
clause protects employee efforts to “improve terms and
conditions of employment, or otherwise improve their lot as
8
employees.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
The courts’ construction of § 7 leaves the Board broad
authority, see, e.g., Stephens Media, LLC v. NLRB, 677 F.3d
1241, 1251 (D.C. Cir. 2012), but there are limits. Concerted
activity loses protection “if it fails in some manner to relate to
‘legitimate employee concerns about employment-related
matters.’” Tradesmen Int’l, Inc. v. NLRB, 275 F.3d 1137,
1141 (D.C. Cir. 2002) (quoting Kysor/Cadillac, 309 NLRB
237, 237 n.3 (1992)).
Newspapers, like other employers, are subject to the
National Labor Relations Act. Associated Press v. NLRB, 301
U.S. 103, 132-33 (1937). Nonetheless, “otherwise valid laws
may become invalidated in their application when they invade
constitutional guarantees, including the First Amendment’s
guarantee of a free press.” Newspaper Guild of Greater
Phila. v. NLRB, 636 F.2d 550, 558 (D.C. Cir. 1990). 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. Passaic Daily News
v. NLRB, 736 F.2d 1543, 1557-58 (D.C. Cir. 1984).
Given the publisher’s First Amendment rights, issues of
what is published and not published are not generally a
“legitimate employee concern[]” for purposes of § 7’s
protection. The reporters and the Board are of course free to
characterize these issues as ones of reporter “autonomy” and
“journalism ethics” for their own purposes, but the power to
so characterize them is not a power to conjure editorial control
out of the publisher’s hands.
The First Amendment affords a publisher—not a
reporter—absolute authority to shape a newspaper’s content:
The choice of material to go into a newspaper, and the
decisions made as to limitations on the size and content of
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the paper, and treatment of public issues and public
officials—whether fair or unfair—constitute the exercise
of editorial control and judgment. It has yet to be
demonstrated how governmental regulation of this crucial
process can be exercised consistent with First
Amendment guarantees of a free press . . . .
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258
(1974). We echoed this in Passaic: “The Supreme Court has
implied consistently that newspapers have absolute discretion
to determine the contents of their newspapers.” 736 F.2d at
1557. And our holding in Passaic underscored the identity of
the “newspaper” for these purposes. Though upholding the
Board’s finding of a violation in the paper’s scrubbing a
reporter’s column in retaliation for his union activities
(activities wholly unrelated to content or editorial judgment),
id. at 1546-48, 1554-55, we set aside its order to publish the
reporter’s column every week for the foreseeable future,
observing that the order would “invite[] the Board to . . .
become directly involved with the Company’s exercise of
editorial control and judgment,” id. at 1559.
The Board recognized the First Amendment problem in
the present case, only to dismiss it out of hand. It said that its
order “raise[d] no ‘serious questions’ under the First
Amendment” because nothing in it “requires [Ampersand] to
grant” the employees’ demand that it “refrain from interfering
with their autonomy in reporting the news.” Ampersand
Publishing, 357 NLRB No. 51, at 5. The Board addressed the
hypothetical case of a classification of the employees’
concerns as a mandatory subject of bargaining, under which
circumstances the employees could, with government support,
apply direct economic coercion to Ampersand in the form of a
strike. Not to worry, said the Board. Assuming the employee
demands were merely a permissive and not a mandatory
subject of bargaining—which the Board did not decide—the
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union would commit an unfair labor practice if it insisted to
impasse on the demands; any resulting strike “may be
unprotected by the Act.” Id. at 7. This brush-off completely
overlooks the 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.
More conventional labor-law principles buttress the
conclusion that a publisher’s editorial policies do not
constitute a “term or condition” of employment in which
employees have a legitimate § 7 interest. “In general,
‘employee efforts to affect the ultimate direction and
managerial policies of the business are beyond the scope’ of
Section 7.” Riverbay Corp., 341 NLRB 255, 257 (2004)
(quoting Lutheran Soc. Serv. of Minn., 250 NLRB 35, 41
(1980)). The quality of the “product” is an aspect of these
managerial prerogatives, so that social workers’ demands
relating to patient care constitute “[p]rotest against the quality
of the product” and are “not encompassed by the ‘mutual aid
or protection’ clause.” Lutheran Soc. Serv., 250 NLRB at 42;
see also Orchard Park Health Care Ctr., Inc., 341 NLRB 642,
645-46 (2004) (concurring opinion) (“Although employee
interest in [an employer’s] product is desirable, it is not
thereby converted into a working condition. Factory
workers . . . may manifest a strong interest in the goods they
produce, but the nature of those goods is not a condition of
employment . . . . ”).
Here, newsroom employees’ conduct was focused largely
on protecting the quality of the relevant product, as they
perceived it, from Ampersand’s editorial policies. For
example, union supporter Melinda Burns warned participants
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in a public forum that “the once-proud institution of the
News-Press . . . is in real danger. . . . The question before us
is, Will the News-Press reflect the world as Wendy McCaw
sees it, or will it reflect the lives and hopes and vision of the
entire community?” (Burns’s reference to the “hopes and
vision of the entire community” did not include the logically
necessary qualifier: “as perceived by the News-Press’s
reporters.”) This appeal—well-intentioned as it may have
been—went directly to the quality and managerial policies of
the newspaper. And not only was the employees’ goal
unprotected, but in many aspects of their campaign they also
used prohibited means—public disparagement of
Ampersand’s product. Such disparagements, then, were
doubly unprotected. See Diamond Walnut Growers, Inc. v.
NLRB, 113 F.3d 1259, 1267 n.8 (D.C. Cir. 1997) (en banc)
(citing NLRB v. Local Union No. 1229, Int’l Bhd. of Elec.
Workers (Jefferson Standard), 346 U.S. 464, 477-78 (1953)).
The Board points out that employees who were
disciplined in connection with editorial policies they were
protesting had testified before the ALJ that the policies
“undermined their integrity as journalists,” causing them to
lose credibility with sources and otherwise hampering their
job performance. But to the extent that “journalistic
integrity,” as conceived by the Board and the reporters,
requires a publisher’s cession of some of its editorial control,
the First Amendment precludes government coercion in its
name. As the Court said in Tornillo, “A responsible press is
an undoubtedly desirable goal, but press responsibility is not
mandated by the Constitution and like many other virtues it
cannot be legislated.” 418 U.S. at 256.
The Board also argues that, even if the employees’
objective of gaining editorial control is unprotected, the
Board’s findings of unfair labor practices should stand
because the campaign was not focused solely on increasing
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employees’ journalistic autonomy. Indeed, one of the
demands the employees served on News-Press management
was to “[n]egotiate a contract with the newsroom employees
governing our hours, wages, benefits and working
conditions.” Ampersand Publishing, 357 NLRB No. 51, at 2.
But the record on appeal makes clear that autonomy was the
focus of the campaign. The record is replete with discussion
of journalistic ethics and who rightfully controlled the content
of the News-Press. Wages, benefits, and working conditions
(apart from the reporters’ concern for editorial control) drew
scant reference. For example, when asked what newsroom
employees sought to achieve through a collective bargaining
agreement, reporter Dawn Hobbs (one of the named
beneficiaries of the Board’s order) testified that they thought it
was “the only way that [they] could protect [them]selves”
from “ethical breaches” “and protect [their] credibility and
[their] integrity.” When asked whether they sought any other
“contractual procedures or provisions or benefits,” she
responded, “At that time, I think we were just really focused
on that . . . .”
Of course employees’ simultaneous pursuit of multiple
goals—some protected by § 7 and some not—poses a
conundrum. But whatever the ultimate answer, we 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. Judge Friendly
addressed a comparable dilemma in endeavoring to apply the
rule emerging from A Book Named “John Cleland’s Memoirs
of a Woman of Pleasure” v. Attorney General of
Massachusetts, 383 U.S. 413 (1966), that government cannot
proscribe a work “unless it is found to be utterly without
redeeming social value.” Id. at 419. Urged by the
government in United States v. A Motion Picture Film
Entitled “I Am Curious-Yellow,” 404 F.2d 196 (2d Cir. 1968),
to require at least a nexus between “the scenes of nudity and
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sexual activity and the problems of the girl . . . in trying to
work out her relationship with life,” id. at 201, Judge Friendly
responded:
Although Memoirs did not in terms require such a nexus,
I would agree that the presence of “redeeming social
value” should not save the day if the sexual episodes were
simply lugged in and bore no relationship whatever to the
theme; a truly pornographic film would not be rescued by
inclusion of a few verses from the Psalms.
Id. (Friendly, J., concurring). Here, of course, 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.
Finally, the Board argues that its decision should stand
because there is no evidence that Ampersand’s actions were
motivated by a desire to protect its First Amendment rights,
rather than by union animus. The Board concluded that
Ampersand’s explanations for its actions were pretextual—for
example, Ampersand claimed that it discharged two union
supporters because of their biased reporting—and that union
animus thus must have been the true motivator. But here we
return to the observation of the district court in the injunction
proceeding, reiterated by the Ninth Circuit, namely, that this
analysis “rests on a false dichotomy. The Union was
organized, in part, to affect [Ampersand’s] editorial discretion
and undertook continual action to do so. It therefore does not
seem possible to parse . . . [Ampersand’s] animus toward the
Union generally from its desire to protect its editorial
discretion. The motives necessarily overlapped in this case.”
McDermott, 2008 WL 8628728, at *12, quoted in McDermott,
593 F.3d at 961.
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Even if the Board properly found that Ampersand
proffered pretextual reasons for its actions—a finding whose
validity we do not decide here—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. The
Board acted with full awareness of the analysis in the
McDermott decisions, and evidently discerned no way to
disentangle Ampersand’s attitude toward the union “from its
desire to protect its editorial discretion.” We therefore vacate
the Board’s order and deny the cross-application for
enforcement without addressing the parties’ arguments
regarding the details of the individual violations the Board
found or the propriety of the remedy imposed.
* * *
Ampersand’s petition for review is granted, the Board’s
decision and order are vacated, and the Board’s cross-
application for enforcement is denied.
So ordered.