by Michael Zinser, The Zinser Law Firm, P.C.
On December 18, 2012, the U.S. Court of Appeals for the D.C. Circuit granted Santa Barbara News-Press’ Petition for Review and vacated an entire adverse decision of the National Labor Relations Board that had determined the discharge of eight employees, among other allegations, violated the National Labor Relations Act. The Court of Appeals reversed, finding the discharges to be lawful.
This case began in 2006. The newsroom employees at Santa Barbara News-Press had engaged the Teamsters in an effort to take over the content of the newspaper. Certain employees hung a sign over the freeway urging the public to “Cancel your newspaper today;” other employees continually wrote biased articles. Santa Barbara News-Press discharged all of them.
The employees and the NLRB categorized the dispute as one of “autonomy” and “journalism ethics,” but the court chastised both, stating, “The power to so characterize them is not a power to conjure editorial control out of the Publisher’s hands.” The court made clear, “The First Amendment affords a publisher,not a reporter, absolute authority to shape a newspaper’s content.”
The court criticized the NLRB because it “recognized the First Amendment problem in the present case, only to dismiss it out of hand.” In particular, the court derided the NLRB’s decision because “it sanctions [the newspaper] for trying to discipline employees who sought to remain on its payroll and at the same time call on newspaper readers of Santa Barbarato cancel their subscriptions because [the newspaper] would not knuckle under to the employees’ demands for editorial control.”
The court noted that public statements and testimony of employees demonstrated that the actions of employees were rooted almost entirely upon controlling the content of the newspaper and the employees’ subjective beliefs of newspaper quality. The resulting disparagement of the newspaper was not protected; the newspaper acted within its rights to discharge the offending employees to protect its editorial control.
The court did not buy the NLRB argument that even if the employees’ goal of content control is unprotected, the NLRB decision should stand because the employees also wanted to negotiate a contract over wages, etc.
The court explained that simply wrapping an unprotected goal with an arguably protected goal does not serve to prevent an employer from taking adverse employment action against an employee as a result of the unprotected goal. Using a rather apt analogy, the court explained, “A truly pornographic film would not be rescued by inclusion of a few verses from the Psalms.” In the same way, the employees’ main dispute over newspaper content control was not cured “by simply adding ‘a few verses’ of wage demands.”
Also, the court relied on reasoning from the 9th Circuit involving the NLRB’s failed attempt at an injunction in this case, recognizing that it was impossible to parse the newspaper’s “animus toward the union generally from its desire to protect its editorial discretion. The motives necessarily overlapped in this case.”
In a stinging rebuke to the NLRB, the D.C. Circuit ruled, “The Board’s analysis was tainted by its mistaken belief that employees had a statutorily protected right to engage in collective action” to control the content of the Santa Barbara News-Press.
Editor’s note: The Zinser Law Firm represented Santa Barbara News-Press.