The Chicago Employment Law Blog

D.C. Circuit Overturns NLRB Ruling; Editorial Mutiny Not Protected

Every writer has been there. They compose something brilliant. In their mind it is only rivaled by the greatest works of William Faulkner himself. Then the editor gets his hands on it. The end result is either full deletion or a rewritten piece that sounds nothing like the original. Your version of "The Sound and the Fury" becomes a mere whimper of indignation.

The fact is, if you write for a reputable newspaper or blog, an editor will change your articles. The sooner one becomes accustomed to the system, the easier their job becomes.

The folks working for Ampersand Press never figured that one out. When a new owner acquired the Santa Barbara News-Press, the decision was made by the new owners to correct the editorial slant of the newspaper’s coverage. The reporters felt that things were being over-corrected and tilting the other way.

Commence the editorial war.

Some of the reporters met with a union to protest the editorial shift. Others resigned in protest or duct-taped their mouths shut. Most importantly, however, was the concerted campaign to get readers to cancel their subscriptions in protest. They cited “journalistic integrity” as the reason.

Eventually, they were canned.

Common sense would dictate the termination. After all, what employer would want to continue to employ a staff that actively fights to hurt the company’s bottom line? However, one thing stood in Ampersand Press’ way: the National Labor Relations Act.

The NLRA protects “concerted” actions by employees to address workplace conditions. This has evolved from simple union protections to the modern far-reaching interpretations, which includes bad-mouthing your employer on social media (which is sometimes protected).

The initial labor board hearing ruled against the publisher because they fired employees who were acting in concert via a union to address workplace concerns.

The D.C. Circuit took a far different view of the situation, however. While it was a concerted activity, the primary purpose of the protests, as shown from their slogans and banners used in the subscriber cancellation campaign, was to fight the employer’s message. While union activities may be protected, those activities won’t be protected when their mission is to infringe upon the paper’s owner’s freedom of speech.

Of course, not all of us are writers or publishers, but the decision does have larger implications. Generally, while the “concerted action” protection will apply to many acts undertaken by employees, it will not apply when the primary protest is against an unprotected matter.

The court’s logic is similar to previous rulings on social media. While an employee’s complaints about protected matters (such as wage and hour issues) cannot lead to discipline or termination, online protestations against unprotected matters can lead to discipline.

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