Ampersand Publishing, LLC v. National Labor Relations Board

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

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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 8628728

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(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

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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.