Court of Appeals Rules Employee Efforts To Take Over Editorial Control At Newspaper Unprotected By NLRA

An issue we have discussed previously is whether all employee action that is "concerted" is also protected by the NLRA. We have seen that maliciously false statements made to third parties are unprotected. But what about when employees disagree with managerial control of the operations? How far can they press their claims? When it comes to the content being published in a newspaper, the answer is: they can ask for it but cannot take action to enforce their demands.

In Ampersand Publishing, LLC v. NLRB (D.C. Cir. December 18, 2012), the Court of Appeals for the District of Columbia vacated an NLRB decision finding that a newspaper's termination of employees violated the Act. The Court concluded that the employees' efforts to control news content not only were unprotected by the NLRA, but that the NLRB's efforts to punish the newspaper through the unfair labor practice process violated the First Amendment of the United States Constitution.

The case involved the reporters working at the Santa Barbara News-Press. The new owner of the newspaper objected to what she perceived as "reporters injecting their views into their reports" and the consequent backlash from readers. The reporters did not like the direction of the publisher. During turmoil at the newspaper, which caused some staff to resign in protest, several reporters met with a union and made demands, one of which was aimed at "limiting the publishers' 'interference' with news content." The employees protested decisions by, among other things, putting duct tape over their mouths to protest the "gag order" of the owners. More significantly, the employees also started a campaign to get readers to cancel their subscriptions to the newspaper, including passing out "subscription cancellation pledge cards" and displaying a banner reading "Cancel Your Newspaper Today." The thrust of the campaign by employees was "journalistic integrity" and "autonomy" in reporting. The employer responded by terminating several union-supporting employees.

Charges were filed at the NLRB. Both an Administrative Law Judge and the NLRB ultimately found that the employer's actions violated the Act. An appeal followed to the Court of Appeals of the District of Columbia. A three judge panel unanimously ruled 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 an unprotected activity tainted its analysis."

The Court...