The Herald News

National Labor Relations Board - Board Decisions

Sep 25, 1985

276 N.L.R.B. 605 (N.L.R.B. 1985)

HERALD NEWS
Passaic Daily News t/a The Herald News and
Joseph Lasica . Case 22-CA-10260
25 September 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 31 May 1983 the National Labor Relations
Board issued a Decision and Order in this proceed-
ing.) The Board found, inter alia, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by canceling employee Mitchell Stoddard's weekly
column because he engaged in union activity.
The Respondent subsequently filed a petition for
review with the United States Court of Appeals for
the District of Columbia Circuit, and the Board
filed a cross-application for enforcement of its
Order. On 15 June 1984 the court issued an opinion
affirming the Board's factual findings, enforcing the
Board's Order in part, and denying enforcement in
part.2 The court, also remanded the case to the
Board with instructions to revise a portion of the
Order. The Board accepted the remand, and the
Respondent and the General Counsel have submit-
ted statements of position with respect to the issue
raised by the remand.
The Board accepts the court's opinion as the law
of the case. We have considered our Decision and
Order in light of the court's opinion and the par-
ties' statements of position, and we have revised
our Order in the manner set forth below. -
The Board's factual findings, as affirmed by the
court, may be summarized briefly. The Respondent
is engaged in the business of publishing, selling, and
distributing a daily newspaper. Employee Stoddard
reports on news stories and serves as the Respond-
ent's bureau chief in Morris County, New Jersey.
Until 15 August 1980 he also wrote a controversial
weekly column addressing issues affecting the local
area. In July 1980 Stoddard became involved in an
organizing campaign being conducted by the Inter-
national Printing and Graphic Communications
Union, Local 8, herein the Union. Stoddard permit-'
ted the Union to use his name on its organizing ma-
terials, `and the Respondent soon became aware of
his involvement in the campaign. The employees
selected the Union as their collective-bargaining
representative in an election conducted on 14 and
15 August 1980, and within half an hour after the
election the Respondent's executive director angri-
ly ordered the cancellation of Stoddard's column.
266 NLRB 898 (1983)
z Passaic Daily News Y. NLRB, 736 F 2d 1543 (D C Cir 1984)
605
The Respondent asserted that the cancellation was
based on a new policy prohibiting street reporters
from writing columns, but the record established
that -other reporters continued to write columns
after Stoddard's was canceled.
The court affirmed the Board's findings that
Stoddard was an employee within the meaning of
the Act, that the elimination of his column-writing
duties constituted a demotion, and that union
animus was a motivating factor in the Respondent's
decisio'n.3 The court rejected the Respondent's de-
fense that the First Amendment to the United
States Constitution precluded the Board from
either challenging the decision to cancel Stoddard's
column or from inquiring into the motives underly-
ing the decision. The court relied on Associated
Press v. NLRB, 301 U.S. 103 (1937), noting that the
Supreme Court "permitted inquiry into, and re-
quired the Associated Press to disclose, the motive
for taking adverse action against an employee en-
gaged in union activities."4 Because the Respond-
ent's First Amendment argument constituted its
entire defense, the court affirmed the Board's find-
ing that Stoddard's demotion violated Section
8(a)(3) and (1).5
The Board had ordered the Respondent to cease
and, desist from its conduct,6 and the court en-
forced this portion of the Board's Order.7 Affirma-
tively, the Board had ordered the Respondent to:
Restore Mitchell Stoddard immediately to
his former position as weekly columnist, and
resume publication of Stoddard's weekly
column, subject to the same lawful standards
and requirements that ' the Respondent, as an
employer, imposes or may impose on its em-
ployees.,
The court concluded that the Board had violated
the first amendment by ordering the Respondent to
"resume publication of Stoddard's weekly column,
subject to the same lawful standards and require-
ments" imposed on other employees, and it de-
clined to enforce that portion of the affirmative
9 Id at 1549-1555
4 Id at 1555
5 Id at 1556
8 The Board required the Respondent to
I Cease and desist from
(a) Discouraging membership and activity in the Union , or in any
other labor organization , by canceling employee Stoddard 's weekly
column because of his union membership and activity
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their Section 7 rights
7 Id. at 1549
8 Affirmatively, the Board also ordered the Respondent to expunge
from its files any reference to the cancellation of Stoddard's column, and
to notify him in writing that this had been done and that its unlawful
action would not be used as a basis for future personnel actions against
him The court enforced this portion of the Order Ibid
276 NLRB No. 78
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedy.9 The court found 'that the "unfortunate
consequences" of the affirmative remedy were to
"compel the [Respondent] to publish what it pre-
fers to withhold," and to inject the Board "into the
editorial decision-making process on an ongoing
basis." 10 The court stated that until Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the
Supreme Court had consistently "implied" that
"newspapers have absolute discretion to determine
the contents of their, newspapers."11 In Tornillo,
according to the court, the Supreme Court made
its views "explicit" in striking down a state statute
which granted political candidates a right to • equal
space to reply to a newspaper's criticism.12 As` the
court emphasized, the Supreme Court rejected the
arguments made by advocates of an enforceable
right of access and concluded:
The choice of material to go into a newspaper,
and the decisions made as to limitations on the
size and content of the paper, and treatment of
public issues' and' public officials-whether fair
or unfair-constitute the exercise of editorial
control and -judgment. It has yet' to be demon-
strated how governmental regulation of this
crucial process can"' be exercised consistent
with' First Amendment guarantees of "a free
press as they have evolved to this time (em-
phasis supplied by the court).13 , • -
The court stated 'that the Board may have been
pursuing valid objectives in issuing the publication
order, but stated that a remedy requiring govern-
mental coercion "gives rise to a confrontation with
the First Amendment."14 The court also stated
that to enforce the Board's Order would require
for the first time a recognition that "government
regulation of the material to go into a newspaper"
can be exercised consistent with First Amendment
guarantees. 15 - ; ,
The court rejected the 'Board 's argument 'that the
Order -was constitutional because it required publi-
cation -"subject to the same lawful standards and
requirements that Respondent, as -an 'employer, im-
poses or may impose on • its employees:'-' 16 'In dis-
cussing this clause and the publication order, the
court stated:
Had the lead-in language mandating the publi-
cation of Stoddard's column been absent and
9 Ibid.
10 Id at 1557
II Ibid The court cited the Supreme Court's opinions in Columbia
Broadcasting v Democratic Comm , 412 U S 94 (1973), Branzburg Y.
Hayes, 408 U S 665 (1972), and Associated Press v. NLRB, supra
12 Ibid
i 8 Id at 1558, quoting 418 U S at 258.
14 Ibid , citing 418 U.S at 254
Is Ibid.
1e Id at 1558-59
had this clause been narrowly crafted, we
would ,have been more sympathetic to the ar-
gument that the Board's order merely encom-
passed a nondiscrimination directive. An order
that merely directed the Company to not dis-
criminate against Stoddard on the basis of his
union activity would present a much 'closer
case. But this clause is written so broadly that
it invites the Board to review the Company's
publication standards and to become directly
involved with the Company's, exercise of edi-
torial control and judgment. Moreover, when
the clause is read in conjunction with the lead-
in language, it is clear-that the order involves
"an express [and] implied command that the
press publish what it prefers to withhold."
Branzburg' [v. Hayes, 408 U.S. 665, 681 (1972).]
Thus we find that the clause does not save the
otherwise constitutionally defective remedy.
Instead, we find that the remedy mandating re-
sumption of Stoddard' s column must yield to
the 'Company's First Amendment interest in
retaining control over prospective editorial de-,
cisions.' 7 .
The court remanded the proceeding with in-
structions that the Board "invoke any specific, al-
ternate remedies" consistent with its opinion "to
ensure that Stoddard is not retaliated against 'for his
union activities."18
We have given careful consideration to the
court's, opinion and the parties' statements of posi-
tion, and we have decided to modify the affirma-
tive portion of our Order to read as follows: -
Restore Mitchell Stoddard' immediately to
the column-writing duties he enjoyed prior to
his demotion, and decide whether to publish
his submissions based upon any factors other
than his union or protected activity; provided
that nothing in this Order shall be interpreted
as a requirement that the Respondent publish
any of the columns submitted by Stoddard.
The revised first clause retains, with some modi-
fications to the language,' 9 the requirement that
the Respondent restore Stoddard to his duties as a.
column-writer. In our view the court did not -
" Id. at 1559
18 Ibid
19 The previous Order required the Respondent to restore Stoddard
"to his former position as a weekly columnist," but the Respondent con-
tends that the "position" of "weekly columnist" never existed at the
newspaper. We note that in affirming the Board's findings , the court
stated that "the elimination of Stoddard 's column -writing duties may
properly be viewed as a demotion " Id at 1554 We have therefore made
revisions to conform to the court's language, and the revised Order refers
to Stoddard 's "column-writing duties" rather than to: his "position" of
"weekly columnist "
HERALD NEWS
object to this portion of the Order. In stating its
holding, the court omitted reference to this clause
and declined to enforce only that portion of the
Order which required the Respondent to "'resume
publication' of Stoddard's weekly. column, subject
to the same lawful standards "and requirements" im-
posed on other .'employees. 20 We also emphasize
the court's conclusion that it would have been
"more sympathetic" to the Board's arguments if
the lead-in language "mandating the publication"
of the column had been absent, and if the clause
following the lead-in language had been "narrowly
crafted. 11 21 In its conclusion the court did not refer
to the requirement that Stoddard be restored to his
column-writing duties, thereby indicating that it
objected to only the final two clauses.22
The revised first clause does not compel publica-
tion or inject the Board into the editorial decision-
making process, which were the two central-con-
cerns raised by the court. In essence , the revised
first clause requires only that the Respondent
permit Stoddard to submit his columns so that it
may then decide whether to publish them. Such a
requirement does not compel the Respondent to
publish what it prefers to withhold, and does not
invite the Board "to review 'the [Respondent's]
publication standards and to become directly in-
volved with the [Respondent's] exercise of editorial
control and judgment."23 The Respondent remains
free to apply its publication standards to decide
whether or not to publish Stoddard's submis-
sions. 24
20 Id at 1549
21 Id at 1559
22 As noted above, the court stated that the Order sought "to compel
the [Respondent] to publish-what it prefers to withhold," and injected the
Board "into the editorial decision -making process on an ongoing basis "
Id at 1557 When it first mentioned these two "unfortunate conse-
quences" the court reprinted the entire text of the affirmative order, in-
cluding the first clause requiring that Stoddard be restored to his column-
writing duties Ibid We do not agree with the Respondent 's contention
that the court thereby disapproved the first clause as well The court's
subsequent analysis focused entirely on the publication order and the
clause which followed As we read the opinion, the court instructed the
Board to eliminate the publication order and "narrowly craft" the final
clause We especially note that in stating which portion of the Order it
was declining to enforce , the court omitted reference to the first clause
requiring that Stoddard be restored to his duties Id at 1549
23 Id at 1559
24 We note that in Associated Press v NLRB, supra, the Supreme Court'
approved the Board 's order reinstating a news editor who had been un-
lawfully discharged The Court stated that the "publisher of a newspaper
has no special immunity from the application of general laws," and "no
special privilege to invade the rights and liberties of others " 301 U S at
312-333 The Court also stated that the reinstatement order did not cir-
cumscribe "the full freedom and liberty of the [newspaper ] to publish the
news as it desires it published or to enforce policies of its own choosing
with respect to the editing and rewriting of news for publication " 301
U S at 133 The reinstatement order in 'Associated Press- did not compel
the publication of the news editor ' s work product or preclude the news-
paper from enforcing its editorial policies , and the mere requirement that
Stoddard be restored to his "column -writing duties" would appear to
have no different impact in this case
607
The revised second clause directs the Respond-
ent to "decide whether to publish [Stoddard's] sub-
missions based upon any factors other than his
union or protected activity." As-noted above, the
court stated that it would have been "more sympa-
thetic" to the Board's arguments if "the lead-in lan-
guage mandating the publication of Stoddard's
column" had been absent.25 In view of the court's
clear admonition, the revised second clause omits
the requirement that the Respondent "resume pub-
lication" of the columns, and specifically recog-
nizes the Respondent's right to decide whether to
publish it.
The court also stated that it' would have been
"more sympathetic" if the Board had "narrowly
crafted" the clause immediately following the
"lead-in language ," which required that Stoddard's
columns be published "subject to the same lawful
standards and requirements that Respondent, as an
employer, imposes or may impose, on its employ-
ees."26 The revised second clause narrows the
order by omitting the requirement that the Re-
spondent apply to Stoddard' s columns the "same"
standards and requirements imposed on other em-
ployees, and by substituting a provision which di-
rects the Respondent to base its publication deci-
sions on "any" factors other than Stoddard's union
or protected activity.27 The provision requires
only ,that Stoddard's union or protected activity be
eliminated from .the decision-making process, and
we consider it to be in compliance with the court's
instructions that the order be "narrowly crafted"
so that the Respondent is "merely -directed . . . to
not discriminate against Stoddard, on the basis of
his union activity."28 The revised second clause
does not invite the Board to review publication
standards or become directly involved with editori-
al control and judgment in the manner feared by
the court. 29 Determining whether the Respondent
has complied with the Order will merely involve
an inquiry into the Respondent's motive, an inquiry
which the -court and the Supreme Court have al-
ready recognized as constitutionally permissible.
25 Id at 1559
20 Ibid
27 This revision comports with the Supreme Court's statement in Asso-
ciated Press , supra at 132, that the Act permits an adverse action against
an employee "for any reason other than union activity or agitation for
collective -bargaining with employees "
28 Id at 1559 The court indicated that such an order "would present a
much closer case " Ibid
29 We note that in Miami Herald Publishing Co Y Tornillo, supra, upon
which the court relied , the Supreme Court stated that it is unconstitution-
al to compel an editor or a publisher to publish that which "reason" tells
them should not be published 418 U S at 256 Here we are not compel-
ling the Respondent to publish any of Stoddard 's columns, and we do not
seek to interfere with the Respondent 's exercise of "reason " by directing
it to base its publication decisions on factors other than Stoddard 's union
or protected activity
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, we have also included a proviso stating
that "nothing in the order shall be interpreted as a
requirement that the Respondent publish any of.the
columns submitted by Stoddard." We have done so
merely to emphasize that our remedy for the viola-
tion in this case does not include a publication
order. 30
ORDER
The National Labor Relations Board hereby
modifies its Order in this proceeding (266 NLRB
898 (1983)) and orders that the Respondent, Passaic
Daily News t/a The Herald News, Passaic, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(a).
"(a) Restore Mitchell Stoddard immediately to
the column-writing duties he enjoyed prior to his
demotion, and decide whether to publish his sub-
missions based on any factors other than his union
or protected activity; provided that nothing in this
Order shall be interpreted as a requirement that the
Respondent publish any of the columns submitted
by Stoddard."
2. Substitute the attached notice for that previ-
ously'issued by the Board.
30 The Respondent. will violate our Order only by basing its publica-
tion decisions on Stoddard's union or protected activity In this connec-
tion we note that our Order does not necessarily require the Respondent
to permit Stoddard to submit his columns indefinitely So long as its deco-
'lion is not based on Stoddard's union or, protected activity, the Respond-
ent may decide to reject any of his individual columns, or decide perma-
nently to cancel his column .
APPENDIX
NOTICE To' EMPLOYEES -
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States- Government
Section .7 of the Act gives employees these rights.
To organize _
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE "WILL NOT discourage membership and activ-
ity in International Printing and Graphic Commu-
nications Union, Local 8, or any other labor orga-
nization , by canceling employee Stoddard's weekly
column because of his union membership and activ-
ity.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act. -
WE WILL restore Mitchell- Stoddard immediately
-to the column-writing duties" he enjoyed prior to
his demotion, and WE WILL decide whether to pub-
lish his submissions based on any factors other than
his union or protected activity; however, the Na-
tional Labor Relations Board has not ordered us to
publish any of the columns submitted by Stoddard.
WE WILL expunge from our files any reference
to the cancellation of Mitchell Stoddard' s column
on 15 August 1980 and - WE WILL notify him that
this has been done, and that evidence of this un-
lawful action will not be used as a basis for future
personnel actions against him.
PASSAIC DAILY NEWS T/A THE
HERALD NEWS
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.