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First Amendment Trumps NLRA; NLRA Does Not Protect Employees' Concerted Protests of Newspaper's Editorial Policies: DC Circuit
Practical Law Legal Update 5-523-2573 (Approx. 5 pages)
First Amendment Trumps NLRA; NLRA Does Not Protect Employees' Concerted Protests of Newspaper's Editorial Policies: DC Circuit
by PLC Labor & Employment
| Published on 20 Dec 2012 • USA (National/Federal) |
In Ampersand Publishing LLC v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that editorial policies are not "terms and conditions" of employment in which employees have a legitimate interest. Therefore employees were not protected from discharge under the National Labor Relations Act (NLRA) for engaging in concerted activity including union organizing to affect these policies.
Key Litigated Issues
The key litigated issues in Ampersand Publishing LLC were whether:
- A newspaper publisher committed various unfair labor practices (ULPs) when it disciplined and discharged reporters engaged in concerted activity including union organizing to assert control over editorial content.
- The newspaper publisher's activity was protected by the First Amendment.
Background
Ampersand Publishing, LLC (Ampersand) publishes a daily newspaper called the Santa Barbara News-Press. In 2006, Ampersand made several editorial policy changes which sparked a dispute with employees of the Santa Barbara News-Press over editorial control. The employees consequently engaged in a union organizing campaign and protested the terminations of coworkers who challenged the new editorial policies.
After the union and a former newsroom supervisor filed complaints against Ampersand, an NLRB administrative law judge (ALJ) held, and the panel heading the NLRB's judicial functions (Board) affirmed that:
- Ampersand committed multiple ULPs by retaliating against newsroom employees who engaged in a union organizing campaign and protested the terminations of coworkers.
- Journalistic ethics policies constituted terms and conditions of the newsroom employees' employment.
- Newsroom employees' protests about journalistic ethics protocols were protected under the NLRA.
- A First Amendment defense did not apply.
Ampersand petitioned the DC Circuit for review, and the Board cross-applied for enforcement. The DC Circuit considered whether Ampersand committed various ULPs in the course of its dispute with the newsroom employees.
Outcome
On December 18, 2012, the DC Circuit issued an opinion in Ampersand Publishing LLC v. NLRB. The court granted Ampersand's petition for review, vacated the Board’s decision and order, and denied the NLRB's cross-application for enforcement. The court held that:
- The NLRA did not protect the bulk of the employees' activity.
- The Board misconceived the line between protected and unprotected activity, tainting its analysis about the alleged ULPs.
In reaching its holding, the court explained that:
- Although newspapers, like other employers, are subject to the NLRA, where enforcement of the NLRA would interfere with a publisher's First Amendment right to determine the contents of its newspaper, the statute must yield (Passaic Daily News v. NLRB).
- Issues of what is or is not published are not generally a legitimate employee concern that qualifies for Section 7 protection:"The First Amendment affords a publisher—not a reporter—absolute authority to shape a newspaper’s content."
- Decisions on a newspaper's content are an exercise of editorial control and judgment:“The Supreme Court has implied consistently that newspapers have absolute discretion to determine the contents of their newspapers.”(Passaic Daily News v. NLRB)
- The nature of an employer's work product is not a condition of employment. A publisher's editorial policies:
- are not a term or condition of employment in which employees have a legitimate interest; and
- are beyond the scope of Section 7.
- The employee's goal, that the News-Press "reflect the lives and hopes and vision of the entire community" goes directly to the quality and managerial policies of the newspaper, and consequently is unprotected by the NLRA.
- Although the newsroom employees were pursuing multiple goals that included wages, benefits and working conditions (that are protected by Section 7) as well as journalistic ethics and editorial control (that are not), wages, benefits and working conditions were really not the focus. Employees cannot extend Section 7 protections by "wrapping an unprotected goal in a protected one."
- The Board erred by finding that there was "no evidence that Ampersand's actions were motivated by a desire to protect its First Amendment rights, rather than by union animus" because:
- the employees embarked on their organization partly to affect Ampersand's editorial discretion, and undertook continual action to do so; and
- it is not possible to separate animus toward the union generally from its desire to protect editorial discretion.
- The Board mistakenly concluded that employees had a statutory right to engage in collective action aimed at limiting Ampersand’s editorial control over News-Press.
Practical Implications
Newspaper employers should be aware that the First Amendment will prevail over the NLRA when it comes to issues surrounding journalistic ethics or editorial control. This may give newspaper employers more discretion than other employers in making employment decisions and implementing policies and procedures related to First Amendment rights.