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Case number 15-1074 at L, Ambersand Publishing LLC Petitioner versus National Labor Relations Board.

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Ms.

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Barver for the petitioner, Mr. Jost for the respondent.

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Good morning.

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May it please support?

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Good morning.

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Anna Barver for Ambersand Publishing doing business as the Santa Barbara News Press.

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The First Amendment affords newspaper publishers the absolute authority to dictate the contents of their papers.

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Accordingly, the National Labor Relations Act must yield in those circumstances when the First Amendment rights of our free press are affected in certain circumstances.

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Four years ago, in Ampersand 1, this court held that the union at the news press was formed primarily to conjure the authority to make content decisions from the publisher's hands and place it in the hands of the reporter employees.

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You said they were primarily organized for that?

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I believe I did say that the union was, was, its primary purpose was enduring organized.

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Why did we say that in Ampersand 1?

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I believe that is one of the ultimate findings of Ampersand 1, Your Honor.

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We don't make findings.

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Well, one of the ultimate holdings of Ampersand 1.

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That that was primarily the purpose of the union?

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Well, that was a major impetus driving it.

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I thought we were deciding, in particular, UFP complaint, we said that that was not valid because that particular activity involved the intent of the union to seize editorial control.

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But did we really say that?

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characteristic that underlay everything about the union?

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In my reading of Ampersand 1, yes, I believe that that is what the holding of one of the holdings of Ampersand 1 was.

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Thank you, Your Honor.

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But the court also found in Ampersand 1 that those sorts of activities were unprotected by the NLRA and that they necessarily threatened the rights of a newspaper employer under the First Amendment.

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We're here today because.

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I think in this very rare circumstance it would, because at no time relevant to this appeal has the union, excuse me, or the board disavowed that that was what was driving the activities of this organized unit.

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Because, excuse me, as we mentioned in our briefing,

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If these ULPs had been lumped in with the very many that were brought in ampersand one, they would have similarly been dismissed without looking at them in each individual circumstance to determine if every single ULP had something directly to do with the content of the paper and the remedies that the board imposed.

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Well, Ms.

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Parvir, you say at no point did the union disavow its

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project of resting, it's ill-advised project of resting editorial control, but in the order denying the motion for reconsideration and modifying relief in this case, and I'm looking at the May 31st, 2013,

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board decision, the board says whatever may have motivated the union's organizing efforts at the bargaining table, as the record demonstrates, efforts at the bargaining table, as the record demonstrates, the union was willing to concede the respondent's right to editorial control.

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Therefore, we reject respondent's content control defense to the violations found by the judge.

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So there is actually, I mean, it sounds like you were seeking some kind of

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Something to point to to say that there's a dam holding back that tainting project.

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And why wouldn't we think that that is an acknowledgment that the union is on to its legitimate business and no longer trying to control the editorial content of the paper?

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A few things to that, Your Honor.

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First,

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Excuse me, with all due respect to that board's ruling in May 2013, the record simply doesn't support that it was a disavowal of the primary purpose, because even though at the bargaining table with regard to certain clauses that were being proposed by the union,

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Excuse me, those clauses were kept coming back.

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They kept coming back in different wrapping.

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Maybe they were diluted.

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But still, those work projects and employee integrity clauses still included varying levels of reporter employee control over the content that would be printed in the paper.

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But aside from that.

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So it would be helpful just, I know there's a lot of different ULPs in the case that you're arguing.

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If you could point to us too and explain what you think are the ULPs that the board resolved in a way that trenches on the papers first and on rights, that would be helpful.

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And again, this is sort of to

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Putting aside your argument about the taint, but just looking at them, if they came up to us now without the background, is there anything about them that is seeking to arrest editorial control?

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Yes, Your Honor.

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So again, and I know you recognize that we're not willing to put aside the taint.

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I do.

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I do.

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might infringe upon the news press' editorial content decision specifically, I can point to at least three for you, Your Honor.

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First being, in dealing with the bad faith bargaining allegation of unfair labor practice, the news press made this argument in a lot of detail below.

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that in response to bad faith by the union in bringing content proposals to the table, it made very clear that it was still seeking that, after certification, seeking that improper ill-advised content control campaign.

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And I think that comes most clearly when you're looking at what I call the employee integrity proposal.

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It was also called the, I think, work projects proposal in the general counsel's exhibit.

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excuse me, which you can find at the appendix 49 to 50.

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There were two things in that one.

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The union was seeking that there could be no correction or retraction without prior consultation with a reporter.

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They were seeking to prevent the news press from being able to discipline reporters if they refused to do a story for whatever subjective reason that employer thought it would be.

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That's the bad faith bargaining, I think.

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The news press's defense to this was that bringing these First Amendment, these First Amendment, sorry, these clauses that deal with First Amendment content control issues to the table was a showing of bad faith on the union's behalf at the table.

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at the table, so, excuse me, and even though they were rejected, the union pulled them back ultimately, brought them back, watered them down, we ended up with just this byline protection clause, but that was just the end product of a long evolution of- What other ones?

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which other ULPs you have.

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I'm sorry, just before you.

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You mentioned three.

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I'd like to get them listed.

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Thank you.

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The other two others.

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Just list them and then you can explain them.

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Thank you.

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I'm sorry.

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The other would be, excuse me, when the, to call it a ULP for the employer to decide that it wanted more articles with fewer, fewer articles with more words as opposed to more articles with fewer words.

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That we refer to that in the briefing as the one story a day ULP.

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Okay.

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And then the ULP

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that was charged after the news press decided to cancel Mr. Miner's gossip column when it decided what sort of content, you know, what kind of columns it would, and then had to lay him off because he... Okay, and you said, for example, are there others that you think, again, putting aside the taint purpose argument, are there other ULPs that had the effect of interfering with editorial discretion in your view?

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at this point i think that the direct effect or the remedy associated with it i wouldn't say that the direct effect of other ULPs would direct the content of the paper but again because we read from ampersand one it's not really that

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It's not necessary that the ULP directly affect the content of the paper.

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What we see here is a broader campaign.

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I understand, but we're trying to separate your argument.

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It is possible you will lose that argument.

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And so if you lose that argument, the question is, do you have a backup argument as to individual ULPs because those actions, those efforts would interfere with the editorial discretion?

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And that's what we're trying to get.

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And you've listed three, and I just want to make sure that's your answer.

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Yes, thank you, Your Honor.

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That would definitely be the three that are directly about content control.

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All of the others have arguments that we could go into.

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Unfortunately, if we do, if that's where we're going to fight the record on every single ULP, then my client is done for.

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The news press is a small market paper, a very small readership, I think, around 40,000.

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This is not a large corporation.

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The union and the board are continuingly coming after this employer for its refusal to cede editorial control, reaching back to 2006.

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It's got to end someday.

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And at this point, we see nothing that can stop this from happening, continuing against my client, even if we were to win here today.

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We're not sure, my client's not sure that it's a celebratory time because when it comes down to it, the board and the union have demonstrated kind of a shocking refusal to listen to the decisions of three federal courts.

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And so we feel like if we get into each of those things, well, it's over because she's never going to, I mean, I'm sorry, the news press is never going to be able to defend itself against another onslaught of UOPs

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Far into the future for those reasons.

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We ask the court to accept the petition and vacate the board's order Okay, thank you.

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We'll give you some time on our bottle.

[00:10:52] Speaker 01:
Thank you May it please the court my name is Micah Jost for the NLRB

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I'd like to begin by addressing the employer's failure to preserve these issues, which result in a jurisdictional bar under Section 10E for the court to hear the fundamental First Amendment arguments that they made here.

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Fundamentally, what the company is arguing here is that a taint arose based on the activities of employees who favored union representation in 2006, 2007, and that as a result, that precludes any further prosecution of the company for its unfair labor practices going forward into the future indefinitely until employees are able to comply with some sort of imaginative process the company proposes for balloting, which would

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somehow demonstrate the subjective views of employees represented by the union.

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What the company actually argued to the board can be found in its exceptions in brief and support thereof.

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The only exception the company cites to support the proposition that it preserved these arguments is found at Joint Appendix 1917 and 1918 of the appendix.

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That is a single exception, number 27 of the 259 exceptions that the company filed.

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And that exception specifically describes the administrative law judge's background discussion where the judge went through the five related proceedings at that time and noted the McDermott case and said that it would be considered for its content and learning and scholarship.

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The company filed an exception in which it recited that and said that that was somehow contrary to law or fact.

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in its brief and supportive exceptions at pages three through five, it argued under the heading, the history of the labor dispute.

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So not an argument, but rather a statement of the history of the labor dispute.

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It stated,

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toward the end of its background recitation there at page five that the First Amendment issues in McDermott, quote, should be considered.

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It never explained how McDermott should be applied, whether McDermott should be applied.

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It referenced the district court's opinion, but not the circuit court's opinion, and it never elaborated on that in its brief.

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What it did argue at pages 184 and 185 of the brief was a much more limited labor law argument

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As to the proposals that the union had made, it argued that the union was proposing permissive matters, which it termed to address content control, and that's specifically the work assignments proposal that the union initially made in November subsequently withdrew.

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and the employee integrity proposals, which were significantly pared down and which the company demanded the union withdraw and the union also withdrew.

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The company's argument at 184 and 185 of its brief in support was that by linking permissive issues with mandatory issues, the union engaged in bad faith, which justified the company's bad faith.

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The words First Amendment, I believe, appear nowhere in that context on those pages where the company makes that argument.

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It's a labor law concept that the company

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cannot shoehorn First Amendment issues into.

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So what the board ultimately did address after the court's decision issued in Ampersand was the potential effect that the conclusions in Ampersand could have on that bargaining defense.

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So notwithstanding that the company never cited Ampersand one to the board and never tried to apply it to that bargaining defense,

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the board considered whether it could have some effect.

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And the board's discussion there at Joint Appendix 2044, which is from the 2013 order, makes very clear that it only understood and was only addressing the possibility that Amber San Juan and this court's analysis there could have some impact on, quote, the content control defense to the 8A5 bargaining violations found by the judge.

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Let's assume for a second we get to the merits and on the,

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their first arguments, the broad purpose taint argument, and then Council indicated that if that didn't prevail, that there were some specific ULP arguments that they were

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raising and I just wanted to probe one of those.

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The one story a day, why doesn't that affect editorial discretion?

[00:15:31] Speaker 01:
Well, as the board explained and as I think we discussed in our brief, the actual announcement, the actual order was one story a day.

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That is strictly a matter of productivity.

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It is a matter of

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how the work that the employees do, which is necessarily related to content because they're writing content, but it was a metric measuring productivity for employees.

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Subsequently, when employees came to the employer and asked, how is this going to be applied?

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How should we do this if we're writing long stories some days, short stories other days?

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The employer elaborated on how employees can meet that, and it described ways that they could write shorter articles in order to sort of get their productivity up.

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That's a separate matter.

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When the employer is describing how many words it wants in an article or how much depth it wants, that is certainly a matter of content.

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But when the employer is making a blanket announcement at the outset, we want one story a day.

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that is a matter of productivity that's quintessentially bargainable.

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I would also note that that's directly tied, isn't it, to the content that will ultimately appear in the sense that if you're doing one story a day, there will be more or different content than if you didn't have that requirement.

[00:16:46] Speaker 01:
Ultimately, Your Honor, I think you can reduce anything that parties could bargain over to that.

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For example, if the union bargains for a 35-hour work week or a 45-hour work week,

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that's going to affect how many stories employees can write.

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If the company wants more stories or fewer stories, it can hire more employees, it can hire fewer employees.

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It has ability fundamentally as a manager to get its content in.

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your drawing that protects the bargain ability of the one story a day as opposed to the First Amendment right of the one story a day?

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Well, first of all, Your Honor, I would note that, to my knowledge, this specific argument that the order as to the one story a day offends the First Amendment was not raised to the board.

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So the board did not have the opportunity to draw that fine line.

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And the Newspaper Guild of Greater Philadelphia case from this court

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Emphasizes that the board is in a special position to to mark out those boundaries and the board is entitled to have the first opportunity to do so But even if the court were to consider that issue, I think it is reasonable to draw the line there that when a blanket productivity Level is being set That's a different matter from describing how employees should work should drive exactly right the other

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specific UOPs that the company suggests could somehow impinge its content.

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With regard to Mr. Minard's, again, their brief did not argue to the board.

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Their exceptions, to my knowledge, did not argue

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that there was a direct First Amendment violation there.

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They did argue that as to a separate individual, Mr. Arringer.

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They seemed to have dropped that before this court.

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As regards to Mr. Minard's, however, at Joint Appendix 1467 through 70, we have Mr. Minard's testimony where he explains exactly what the company told him.

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And the most important quote there is, quote, that the decision was, excuse me, that the decision was, quote, nothing to do with the column, but merely a cost cutting measure.

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What the company then did, after laying him off, reinforces.

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Yes, Your Honor, the minors testimony is between 1467 and 1470 of the record.

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This was a matter of pure economics, and the board so found, that's it, from appendix 1970.

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When you have a matter of simple economics, whether he was going to write a column as a full-time employee who was paid $75,000 a year, or whether he would write it as a freelance employee being paid less and perhaps having other obligations in addition, that is, again, a quintessentially bargainable issue that has nothing to do with the content of what he's writing.

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The fact that the company turned around and tried to deal directly with him days after laying him off and made this offer, we would like you to keep writing a column, demonstrates that their concern was not with the content.

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That's, again, crystal clear from the actual unimpeached, undisputed testimony of Mr. Miners about what the company told him.

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As to the bad faith bargaining,

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The company suggests that at no time has the union disavowed the claims or the motives that it had in Ampersand 1.

[00:20:23] Speaker 01:
The first point I would make is that the company is the one raising a First Amendment defense here, and the company bears the burden of showing that there was a nexus, that there were unprotected motives, that there were unprotected activities, and that it was responding to those.

[00:20:36] Speaker 01:
That is the narrow factual setting that this court addressed in Ampersand 1, and it is absolutely not replicated in this case for several reasons.

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First of all,

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The company fails to show any sort of unprotected motives persisting through bargaining.

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And in fact, the union did repeatedly disavow any such motives.

[00:20:54] Speaker 01:
Those expressed disavowals start, I believe, around May 2008, which is, of course, when the McDermott decision issued in the district court.

[00:21:04] Speaker 00:
And where were you put to for those?

[00:21:06] Speaker 01:
That's at pages 67 and 68 of our brief.

[00:21:08] Speaker 01:
We list numerous record places where the union expressly said that it was not seeking to take content, that content was the responsibility of the employer.

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One of the clearest examples is at Joint Appendix 1353,

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where the union said in a letter that the employer has the absolute right to make changes.

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All that the union was asking for is procedural consultation rights.

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So for example, before a change would be made that the company would let the employee know.

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And those rights don't rise to the level of a First Amendment violation.

[00:21:40] Speaker 01:
So for the company to, first of all, distort the bad faith bargaining argument that it actually made to the union, or excuse me, to the board, which had to do with the labor law concept of linking permissive and mandatory,

[00:21:51] Speaker 01:
It takes that and claims that it somehow justifies a broader First Amendment argument, but in doing so, it ignores the

[00:22:02] Speaker 01:
clear evidence throughout the record, which provides substantial evidence supporting the board's factual motive determination as to what was driving the union.

[00:22:10] Speaker 01:
And it fails to produce any evidence of unprotected activity that could be in any way analogous to, in its briefs, I see no reference to unprotected activity that would be analogous to what was at issue in Ampersand 1.

[00:22:21] Speaker 01:
Okay.

[00:22:22] Speaker 01:
Thank you very much.

[00:22:23] Speaker 01:
No further questions we ask that the court enforce the board's order.

[00:22:25] Speaker 01:
Thank you.

[00:22:27] Speaker 03:
We'll give you a minute for rebuttal.

[00:22:30] Speaker 04:
I'd like to address two points that I heard opposing counsel raise.

[00:22:34] Speaker 04:
First, with regard to the productivity standards.

[00:22:37] Speaker 04:
That is something that the board wants to call this, a productivity standard announcement.

[00:22:41] Speaker 04:
This is not like other sorts of cases, the cases where they literally were productivity standards.

[00:22:46] Speaker 04:
We're not talking about making genes on a

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on the line.

[00:22:50] Speaker 04:
We're not talking about getting and washing a certain number of windows before the day ends.

[00:22:55] Speaker 04:
This is a case that necessarily deals with the content of the paper.

[00:22:59] Speaker 04:
When an employer, when the employer is deciding what it wants its stories to look like, it may have an impact on how many, how many stories are to be, are being put out weekly, but... Would you deny that you're

[00:23:24] Speaker 04:
There would be, but not in this very rare circumstance because of the organizing purpose of this union.

[00:23:30] Speaker 02:
If that taint can be cleaned, I'm not sure at this point that it has.

[00:23:55] Speaker 02:
So how can we say the overriding purpose when you're referring to one of four previously residing purposes?

[00:24:05] Speaker 04:
It is correct.

[00:24:05] Speaker 04:
Ampersand does recognize that there were four purposes that were listed by the employees when they were organizing.

[00:24:12] Speaker 04:
But Ampersand 1 does hold that the primary purpose was the contact control issue.

[00:24:20] Speaker 02:
Where did we say that was the primary purpose?

[00:24:22] Speaker 04:
I don't have a PIN site with me, Your Honor, but if I could get it, I could get it for you if you need.

[00:24:26] Speaker 00:
And do you, Ms.

[00:24:27] Speaker 00:
Barver, do you agree with Mr. Dale that the way to purge that would be for the union to be decertified and reconstituted, or is there another avenue that, in your view, would be adequate to clean the slate and allow these employees to have protections in the labor law through a union?

[00:24:47] Speaker 04:
This is an interesting question because this is such an extraordinary case.

[00:24:52] Speaker 04:
I'm not aware of any other sort of union that has gone down this path.

[00:24:57] Speaker 04:
My thought possibly could be if it doesn't have to be fully decertified, if there was some sort of evidence to show that it still has majority support,

[00:25:04] Speaker 04:
from the reporter employees absent that improper purpose, well then maybe that would be sufficient because that would be a real, that would really demonstrate that the union is no longer seeking to pursue the very purposes it was elected for.

[00:25:19] Speaker 04:
That doesn't necessarily mean decertification.

[00:25:22] Speaker 00:
And why are the union's statements that it doesn't want to control content and that it's

[00:25:28] Speaker 00:
You know, as board council put it, post-Amperus N1, they seemed to understand that the position they took in the beginning was,

[00:25:37] Speaker 00:
literally unsupportable, and that now they're going forward saying, we don't want to control content, that's not enough for you.

[00:25:45] Speaker 04:
Why not?

[00:25:46] Speaker 04:
For a few reasons.

[00:25:47] Speaker 04:
It looks to me, and I think it's reasonable to infer that that is really just a cover.

[00:25:54] Speaker 04:
It's saying those things because Ampersand 1 did say, you can't just bring in a few wage and hour concerns and wrap it up with the unprotected.

[00:26:02] Speaker 02:
You're saying a lot more about Ampersand 1 than I remember being in there.

[00:26:06] Speaker 02:
I didn't write it, but I did sound off on it.

[00:26:10] Speaker 02:
It doesn't sound like exactly the opinion you're describing.

[00:26:12] Speaker 04:
There's a quote in Impressand 1 that recognizes that it would be improper to wrap in a few.

[00:26:18] Speaker 04:
The court was expressing, it was talking about some concerns about, okay, so you have some wage and hour, bread and butter wage and hour issues.

[00:26:27] Speaker 02:
Well, that's about a taint to the board's deceit.

[00:26:29] Speaker 04:
I'm sorry.

[00:26:29] Speaker 02:
We talked about a taint to the board's decision.

[00:26:32] Speaker 02:
That's correct.

[00:26:32] Speaker 02:
Being based on a misunderstanding of first member rights.

[00:26:35] Speaker 04:
That's correct.

[00:26:35] Speaker 02:
But the idea of the taint to all union activities in the future, to me, I don't see where we laid the foundation for that.

[00:26:44] Speaker 04:
I don't think that it held specifically that there's a taint that affects all activity into the future.

[00:26:50] Speaker 02:
I don't think we made anything about a taint to that in all union activities.

[00:26:52] Speaker 04:
Correct, but that's not, we're asking this court to go that step further because we've seen that the union is refusing and has continued down this path.

[00:27:01] Speaker 04:
And so it is not expressly ampersand one, but it is that step further.

[00:27:06] Speaker 04:
Because as long as this improper purpose pervades, and I think that it has, and I think the record shows that, then that, in those rare circumstances, the First Amendment concerns outweigh the Act concerns.

[00:27:20] Speaker 03:
Okay, thank you very much.

[00:27:21] Speaker 03:
The case is submitted.