McDermott v. Ampersand Pub., LLC
| Decision Date | 26 January 2010 |
| Docket Number | No. 08-56202.,08-56202. |
| Citation | 593 F.3d 950 |
| Parties | James J. McDERMOTT, Regional Director of Region 31 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellant, v. AMPERSAND PUBLISHING, LLC, doing business as The Santa Barbara News-Press, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Brown, Baker & Hostetler LLP, Washington, DC, for amicus curiae Newspaper Association of America.
L. Michael Zinser, The Zinser Law Firm, P.C., Nashville, TN, for amici curiae Gannett Co., Inc.; Lee Enterprises, Inc.; Medianews Group, Inc.; and Stephens Media, LLC.
Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. 2:08-cv-01551-SVW-MAN.
Before: HAWKINS, RICHARD R. CLIFTON and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge CLIFTON; Dissent by Judge HAWKINS.
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 Publishing, LLC, doing business as The Santa Barbara News-Press, were forced, among other things, to reinstate employees 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 . Weighing the equitable factors generally applicable to a claim for interim injunctive 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' campaign to secure representation by the Graphic Communications 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 Amendment. Applying the Supreme Court's recent guidance on the general standard for granting preliminary injunctions, we further determine that the district court did not abuse its discretion in declining to order the interim injunctive relief sought by the Regional Director.
As described in more detail below, an NLRB administrative law judge (ALJ) presided over a trial and produced a lengthy recommended decision and order in this case, currently 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 copublisher, 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 various actions to try to eliminate the bias she perceived, including 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 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.
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 newspaper "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 Steepleton 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 whatever she wants to be part of." The paper later published editorials 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:
I, _____, support the Santa Barbara News-Press newsroom staff in its effort to restore journalistic integrity to the paper, obtain recognition and negotiate a fair employment contract. Cancel my subscription 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 supporters 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 supporters 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. Overruling 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 commenced 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 consolidated complaint against the News-Press. Among other things, the complaint alleged that the News-Press had violated paragraphs 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 complaint 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 allegations 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 reinstatement 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...
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