Board Rejects Newspaper’s First Amendment Defense, Orders Reinstatement of Fired Union Supporters Who Criticized Editorial Conduct

The National Labor Relations Board unanimously found that a newspaper publisher committed unfair labor practices during a union organizing campaign — rejecting the employer’s novel argument that so doing would violate the First Amendment. In Ampersand Publishing LLC d/b/a Santa Barbara News-Press, 357 NLRB No. 51 (Aug. 11, 2011), Chairman Wilma Liebman and Member Craig Becker, with Member Brian Hayes concurring on more limited grounds, rejected arguments that the employees’ actions were not protected because they dealt with editorial content rather than wages and benefits, and that the order would interfere with the publisher’s First Amendment right to control the newspaper’s editorial content.

According to the decision, the union organizing campaign began in the summer of 2006 after a number of journalists resigned from the newspaper to protest alleged interference with their reporting of the news. Before filing a petition at the Board, the employees presented the newspaper with a letter making several demands, first among them:

We respectfully request that you…[r]estore 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.

The letter also contained demands to recognize the union, to negotiate a contract and to invite the departed employees to return. In the subsequent election, employees voted overwhelmingly in favor of representation by the Teamsters.

The Board rejected the employer’s preliminary defenses, noting that the employees did, in fact, demand recognition and bargaining regarding wages and hours – but also that the employees’ protest regarding editorial conduct was protected in itself. The Board explained:

The newsroom employees’ concerted actions were not in protest against a change in the editorial stance of the paper—whether to endorse the Democratic or Republican candidate for mayor, for example. Rather, they were in protest against decisions that limited the autonomy they had previously enjoyed to report the news according to what they believed were professional norms. Restrictions on their autonomy and threats to their professional ethics directly implicated their interests as employees.

Similarly, the Board rejected the employer’s First Amendment argument that the employees had only “invoked the [National Labor Relations] Act as a regulatory means to gain control over the content of the newspaper.” Noting that editorial content is a non-mandatory subject of bargaining, the Board explained that the employer would have recourse against its employees and their union representative if they insisted to impasse upon proposals which would implicate such. But the Board declined to issue a decision here based upon “what may come to pass in the future.”

Ultimately, the Board held:

The judge found that the Respondent engaged in an extensive campaign of retaliatory conduct against employees because they exercised their rights to seek union representation and to join together for their mutual aid or protection. Our order remedies that unlawful conduct.

The Board ordered the employer to reinstate and make whole a number of discriminatees. Chairman Liebman and Member Becker also ordered that a senior management official read, or be present at the reading to the employees of, the complete NLRB notice to be posted.