Ampersand Publ'g, LLC v. Nat'l Labor Relations Bd., s. 11–1284

• Decision Date: 18 December 2012
• Docket Number: Nos. 11–1284,11–1348.,s. 11–1284
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

702 F.3d 51

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.

Nos. 11–1284, 11–1348.

United States Court of Appeals,District of Columbia Circuit.

Argued Nov. 8, 2012.

Decided Dec. 18, 2012.

L. Michael Zinser argued the cause for petitioner. With him on the briefs were Glenn E. Plosa, Carter G. Phillips, and Paul J. Zidlicky.

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 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 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 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 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 (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. Accordin...