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Constitution Trumps NLRA in Newspaper Mutiny

By William Peacock, Esq. on December 28, 2012 | Last updated on March 21, 2019

The D.C. Circuit wasn’t fooled, even if the initial labor board was.

Ampersand Publishing acquired the Santa Barbara News-Press in 2000. Over the next four years, a shift in editorial tone, meant to quash the reporters’ alleged bias that was seeping into their writings, led to a full-on revolt. By 2006, the mutiny was on. Reporters sought a return to “journalistic integrity.” Ampersand’s owners sought to run their business as they saw fit.

A number of resignations and protests ensued, including an event where approximately twenty employees duct taped their mouths shut. Unfortunately for Ampersand, the tape didn’t stick and more protests followed, including a campaign to convince subscribers to cancel their subscriptions in protest.

Taped Mouth

In the meantime, one employee contacted a union and began to organize. A list of four demands were presented to the owners, including restoring journalism ethics, inviting back the recently resigned staff, negotiating a wage and hour contract, and recognition of the union.

Obviously, no business is going to want to continue to employ a staff that actively subverts the business by convincing customers to go elsewhere. Ampersand fired a number of employees involved in the subscription cancellation protests, as well as a couple of other pro-union employees.

This presents an interesting legal quandary. On the one hand, we presumably have concerted union activity, protected under § 7 of the NLRA. On the other, we have a newspaper's First Amendment right to control its content.

The ALJ and labor board sided with the employees, citing union protections and side-stepping the First Amendment concerns. The District Court and Ninth Circuit chimed in to the contrary.

As for the D.C. Circuit ... let's just say that the reporters are going to need more duct tape.

The court highlighted the focus of the employees' in their protests: journalistic integrity. Newspaper owners have an absolute right to determine the content of their paper per the freedoms of the press and speech. And though employees may disagree with their editors' decisions, that does not amount to a "legitimate concern" for purposes of union protection.

Fine, but what about the wage and hour demands? Certainly, they are protected, right?

Usually, yes. In this instance, it was only given passing mention during the initial protests and dispute. The protests, union wrangling, and subsequent NLRB and court battles all focused on the issue of journalistic integrity. While some of the union's aims may have been protected, the court stated "we do not think that employees can extend § 7's protections by wrapping an unprotected goal in a protected one, by tossing a wage claim in with their quest for editorial control."

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