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 of Appeals reviewed NLRB precedent on protected activity, noting that there are limits. “Concerted activity loses its protection ‘if it fails in some manner to relate to legitimate employee concerns about the employment-related matters.” The Court expressly found that a newspaper employer’s First Amendment right to determine the content of its newspaper is not a legitimate employee concern:
The reporters and the Board are of course free to characterize these issues as ones of reporter ‘autonomy’ and ‘journalism ethics’ for their own purposes, but the power to so characterize them is not a power to conjure editorial control out of the publisher’s hands.
In other words, while employees may characterize the dispute any way they want, it doesn’t necessarily mean it is “protected” activity under the NLRA, particularly when they couple such statements with active efforts to damage the business by causing readers to cancel subscriptions. The Court took aim at the NLRB’s reasoning that the publisher’s First Amendment rights were not implicated:
The Board recognized the First Amendment problem in the present case, only to dismiss it out of hand. It said that its order ‘raise[d] no ‘serious questions’ under the First Amendment’ because nothing in it ‘requires [the employer] to grant’ the employee’s demand that it ‘refrain from their autonomy in reporting the news.’ The Board addressed the hypothetical case of a classfication of the employee’s concern as a mandatory subject of bargaining, under which circumstances the employees could, with government support, apply direct coercion to [the employer] in the form of a strike. Not to worry, said the Board. Assuming the employee demands were merely a permissive and not a mandatory subject of bargaining-which the Board did not decide-the union would commit an unfair labor practice if it insisted to impasse on the demands; any resulting strike ‘may be unprotected by the Act.’ This brush-off completely overlooks the order’s clear coercive effect: it sanctions [the employer] for trying to discipline employees who sought to remain on its payroll and and the same time call on newspaper readers of Santa Barbara to cancel their subscriptions because [the employer] would not knuckle under to the employees’ demands for editorial control. The First Amendment bars government pressure of this sort.
The Court ruled that because the object of the employee protest — to determine the content of the newspaper — was not legitimate, the NLRB’s order punished the employer for protecting its interests.
The Court also concluded that Board law supported its finding that the editorial policies of the newspaper did not constitute a “‘term or condition’ of employment in which employees have a legitimate §7 interest.” The Court noted that the NLRB’s decisions have long held that “employee efforts to affect the ultimate direction and managerial policies of the business are beyond the scope’ of Section 7.” Riverbay Corp. 341 NLRB 255, 257 (2004) (quoting Lutheran Socl Serv. Of Minn., 250 NLRB 35, 41 (1980)). The Court likened this dispute to the “quality” of the product which is not a condition of employment:
Of course, employees’ simultaneous pursuit of multiple goals–some protected by § 7 and some not– poses a conundrum. But whatever the ultimate answer, 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.
Although the First Amendment issue is applicable in only a narrow set of circumstances, the ruling is instructive. The language invoked in protest activities often is broader than “terms or conditions” of employment. When such broad claims are made coupled with actions designed to harm the business then there is a greater likelihood the conduct would be found to be unprotected.