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11-1284-1410688

11-1284-1410688

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Published by Tom Bolton

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Published by: Tom Bolton on Dec 18, 2012
Copyright:Attribution Non-commercial

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12/18/2012

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
 
Argued November 8, 2012 Decided December 18, 2012No. 11-1284A
MPERSAND
P
UBLISHING
,
 
LLC,
DOING BUSINESS AS
S
ANTA
B
ARBARA
N
EWS
-P
RESS
,P
ETITIONER
 v.N
ATIONAL
L
ABOR
R
ELATIONS
B
OARD
,R
ESPONDENT
 G
RAPHICS
C
OMMUNICATIONS
C
ONFERENCE OF THE
I
NTERNATIONAL
B
ROTHERHOOD OF
T
EAMSTERS
,I
NTERVENOR
 Consolidated with 11-1348On Petition for Review and Cross-Application forEnforcement of an Order of the National Labor RelationsBoard
 L. Michael Zinser 
argued the cause for petitioner. Withhim on the briefs were
Glenn E. Plosa
,
Carter G. Phillips
, and
Paul J. Zidlicky
.
 
 2
Kira Dellinger Vol
, Attorney, National Labor RelationsBoard, argued the cause for respondent. With her on the brief were
 John H. Ferguson
, Associate General Counsel,
 Linda Dreeben
, Deputy Associate General Counsel, and
 Julie Broido
, Supervisory Attorney.
 Ira L. Gottlieb
argued the cause and filed the brief forintervenor. With him on the brief was
 James B. Coppess
.Before: S
ENTELLE
,
Chief Judge
, H
ENDERSON
,
Circuit  Judge
, and W
ILLIAMS
,
Senior Circuit Judge
.Opinion for the Court filed by
Senior Circuit Judge
 W
ILLIAMS
.W
ILLIAMS
,
Senior Circuit Judge
: Petitioner AmpersandPublishing, LLC, publishes a daily newspaper, the SantaBarbara News-Press. In 2006 a long-smoldering disputebetween Ampersand and newsroom staff, regarding control of the News-Press’s content, burst into flames. We are asked toreview the National Labor Relations Board’s conclusion thatAmpersand committed various unfair labor practices in thecourse of the fight. We hold that the National Labor RelationsAct did not protect the bulk of the employees’ activity andthat the Board’s misconception of the line between protectedand unprotected activity tainted its analysis. Because we canconceive of no principle by which the Board could cleansethat taint, we grant the petition for review, vacate the Board’sdecision and order, and deny the cross-application forenforcement.* * *Wendy McCaw, Ampersand’s owner, purchased theNews-Press in 2000. Between 2004 and the spring of 2006there were a number of wrangles between her and the news
 
 3staff over what she perceived as bias in their reporting. Shebacked her claims with survey data indicating that readers sawthe News-Press reporters as injecting their views into theirreports, and with specific critiques of articles that in her viewtended to slight the interests of wildlife (and the friends of wildlife) in interactions between wildlife and residents.
 Ampersand Publishing, LLC 
, 357 NLRB No. 51, at 14-15(2011) (ALJ Op.). In 2006 McCaw and Arthur vonWiesenberger became the newspaper’s co-publishers, and theclash intensified. As the Board put it, the dispute was over “aseries of management decisions . . . that led employees tobelieve that the new publishers were inappropriatelyinterfering with the work of the employees on the news-gathering side of the paper.”
 Id 
. at 1 (Board Op.). In May2006 reporters took umbrage when the publishers limitedcoverage of a News-Press editor’s arrest and sentencing fordriving while intoxicated. In June, the publishersreprimanded a reporter and three editors for printing the homeaddress of a prominent actor living near Santa Barbara.
 Id 
. at16-17 (ALJ Op.). The same day as the News-Press publishedthe actor’s address, management circulated a new policybanning “unauthorized disclosure, release, sharing or leakingof any proprietary, personnel or other information involvingthe New[s]-Press to [any] other news organization or mediaoutlet.”
 Id 
. at 18. More than a dozen employees resigned,calling the policy a “gag order.”On July 3, the two publishers left for vacation and theeditor who had been arrested for alleged drunk drivingbecame acting publisher. Two editors resigned July 5, and araft of additional resignations ensued (at least nine on July 6,and one on each of July 7, 12 and 18), accompanied by aflurry of angry memos relating to control over content.
 Id 
. at18-19. One employee, later fired, sought out the assistance of the Graphics Communications Conference of the InternationalBrotherhood of Teamsters, and arranged a meeting in her

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