702 F.3d 51
D.C. Cir.2012Background
- Ampersand Publishing, owner Wendy McCaw, purchased the Santa Barbara News-Press in 2000 and faced ongoing disputes over editorial control from 2004–2006.
- In May–July 2006, publishers limited coverage, circulated a policy restricting information leaks, and staff faced disciplinary actions amid rising tensions.
- A wave of resignations followed, including newsroom editors and staff, and a unionization drive began with the Graphics Communications Conference supporting the employees.
- Employees conducted public rallies, displayed pro-union messages, and launched a subscription-cancellation campaign urging readers to oppose Ampersand’s editorial decisions.
- In February 2007, employees hung banners near Highway 101 calling to cancel subscriptions and urging protection of free speech while Ampersand discharged several union-supporting workers.
- The National Labor Relations Board found multiple unfair labor practices (8(a)(1), 8(a)(3)), the district court denied relief, and the Ninth Circuit affirmed; this court grants Ampersand’s petition, vacates the Board’s order, and denies enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether union activity aiming to limit editorial control falls under §7 protection | Ampersand argues editorial control is First Amendment protected and not a §7 concern. | NLRB argues some union activity aims to protect newsroom autonomy which is within §7. | No; editorial control is not a protected §7 concern; Board errored by treating it as protected. |
| Whether the Board’s order improperly compelled editorial outcome | Ampersand contends the Board’s order would force editorial choices and violate the First Amendment. | Board found unlawful conduct tied to union activities, not compelled editorial content. | Vacated; order unduly intrudes on editorial discretion protected by the First Amendment. |
| Whether the record shows pretext or union animus as the motive | Ampersand argues motivations overlapped and any pretext analysis is tainted by improper focus on editorial control. | Board considered motives, but found actions motivated by concerns about editorial autonomy. | Pretext findings not decisive; but the overall constitutional flaw taints the Board’s analysis. |
| Whether employees’ protected activity can be extended to wage/contract demands | Employees bundled unprotected wage demands with protected editorial autonomy; §7 cannot protect the latter by cloaking it with the former. | Unprotected and protected goals were intertwined; Board should consider combined conduct. | The combination does not validate protection; First Amendment bars coercion over editorial control. |
Key Cases Cited
- Newspaper Guild of Greater Phila. v. NLRB, 636 F.2d 550 (3d Cir. 1990) (First Amendment constraints on newspaper regulation of content)
- Passaic Daily News v. NLRB, 736 F.2d 1543 (D.C. Cir. 1984) (newspapers’ editorial discretion protected from Labor Board orders)
- Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (U.S. 1974) (absolute editorial control; no compelled alignment with reader preferences)
- Riverbay Corp., 341 NLRB 255 (2004) (editorial/product quality not a term/conditions of employment)
- Lutheran Social Serv. of Minn., 250 NLRB 35 (1980) (product quality relates to managerial prerogatives, not §7 protections)
- Tradesmen Int’l, Inc. v. NLRB, 275 F.3d 1137 (D.C. Cir. 2002) (concerted activity must relate to legitimate employment concerns)
- McDermott v. Ampersand Publishing, LLC, 593 F.3d 950 (9th Cir. 2010) (context for Board’s approach to editorial control vs. union aims)