Region Prevails Before the D.C. Circuit

In two cases consolidated for decision, the court issued an unpublished judgment denying petitions for review filed by this publisher of a Santa Barbara, California newspaper, the Santa Barbara News-Press, and enforcing the Board’s orders in full.
In 2006, the Employer’s newsroom employees voted 33 to 6 in a Board-conducted election to be represented by the Graphics Communications Conference of the International Brotherhood of Teamsters.  Thereafter, the Employer engaged in a pattern of conduct giving rise to allegations of multiple violations of Section 8(a)(1), (3), and (5) of the Act.  In preparing for the subsequent hearing in 2009 on those allegations, the Employer served subpoenas on a number of current and past employees, which it completed after obtaining the forms from the regional office.  The subpoenas demanded that the employees produce, among other things, affidavits “provided to and/or received from Region 31 . . . pertaining to [the] NLRB charges” scheduled for hearing.  After separate allegations issued with regard to the subpoenas, and an administrative law judge issued a decision, the Board (then-Chairman Pearce and Members Hirozawa and Schiffer), relying on its longstanding and Supreme-Court-approved policy of protecting Board affidavits from disclosure prior to a hearing, found (361 NLRB No. 88) that the subpoenas violated Section 8(a)(1).
After the unfair-labor-practice hearing on the earlier complaint was completed, and an administrative law judge issued a decision, the Board (then-Chairman Pearce and Members Hirozawa and McFerran) found (362 NLRB No. 26), among other unfair labor practices, that the Employer violated Section 8(a)(5) by committing multiple information-request violations, and unilaterally changing an array of terms and conditions of employment, including transferring unit work, assigning unit work to a freelancer, laying off an employee, and announcing a new requirement that unit employees produce at least one story per day, and by engaging in direct dealing and bargaining in bad faith during negotiations for a first contract.  The Board also found that the Employer violated Section 8(a)(3) and (1) by suspending and later discharging an employee because of his union activities, and by transferring unit work with the purpose of undermining the Union in its representative capacity and to discourage employees’ union activities.  Lastly, the Board found that the Employer violated Section 8(a)(1) by issuing a memorandum stating its attorney could represent employees contacted by Board agents investigating charges, and by instructing employees that anything said at a meeting concerning their terms and conditions of employment was confidential.
On review, the two cases were filed and briefed separately, but consolidated by the court for oral argument and decision.  Before the court, the Employer did not contest the factual underpinning of the unfair labor practices, but instead unsuccessfully challenged both Board orders on First Amendment grounds.  First, the court held that, under the dictates of Section 10(e) of Act, the Employer’s primary contention was barred from review because it was not raised to the Board.  Accordingly, on that basis, the court rejected the Employer’s argument that, because the Union had, in an earlier case based on events in 2006 and 2007, been found to have pursued unprotected aims involving the Employer’s editorial discretion, see Ampersand Publ’g, LLC v. NLRB, 702 F.3d 51 (D.C. Cir. 2012), the First Amendment immunized the Employer from any subsequent unfair-labor-practice liability.  Second, the court rejected the Employer’s contention the First Amendment otherwise immunized it from liability for refusing to bargain over reporter staffing decisions because, it claimed, it had a First Amendment right to choose the individuals who write articles for the paper.  The court held that such staffing decisions, in contrast to editorial content decisions, were not protected.  With regard to the Board’s finding that the subpoenas were unlawfully coercive, the court held that substantial evidence supported the Board’s conclusion, and explained:  “The subpoenas were reasonably likely to undermine employees’ confidence that their statements to Board investigators would be kept secret; lacking such confidence, a reasonable employee likely would be less willing to cooperate with Board investigators in the future.”
The court’s unpublished judgment may be found here.