FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES J. MCDERMOTT, Regional 

Director of Region 31 of the

National Labor Relations Board,

for and on behalf of the National No. 08-56202

Labor Relations Board, D.C. No.

Petitioner-Appellant,  2:08-cv-01551-

v. SVW-MAN

AMPERSAND PUBLISHING, LLC, OPINION

doing business as The Santa

Barbara News-Press,

Respondent-Appellee. 

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

March 11, 2009—Pasadena, California

Filed January 26, 2010

Before: Michael Daly Hawkins, Richard R. Clifton and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Clifton;

Dissent by Judge Hawkins

1447
COUNSEL

Ronald Meisburg, John E. Higgins, Jr., Barry J. Kearney,

Judith I. Katz, Steven L. Sokolow, and Margaret E. Luke

(argued), National Labor Relations Board, Washington, D.C.,

for the petitioner-appellant.

Framroze M. Virjee and Michael Garrison, O’Melveny &

Myers LLP, Los Angeles, California; Sri Srinivasan (argued),

O’Melveny & Myers LLP, Washington, D.C.; Ryan W. Rutledge, O’Melveny Myers, LLP, Newport Beach, California;

A. Barry Cappello, Troy A. Thielemann, Matthew Clarke, and

Dugan Kelley, Cappello & Noel, LLP, Santa Barbara, California, for the respondent-appellee. 

Barbara L. Camens, Barr & Camens, Washington, D.C.; Ira

L. Gottlieb, Bush Gottlieb Singer Lopez Kohanski Adelstein

& Dickenson, Glendale, California, for amici curiae the

Graphics Communications Conference of the International

Brotherhood of Teamsters and the Newspaper

Guild/Communications Workers of America.

L. Michael Zinser, The Zinser Law Firm, P.C., Nashville,

Tennessee; Bruce D. Brown, Baker & Hostetler LLP, Washington, D.C., for amicus curiae Newspaper Association of

America.

L. Michael Zinser, The Zinser Law Firm, P.C., Nashville,

Tennessee, for amici curiae Gannett Co., Inc.; Lee Enterprises, Inc.; Medianews Group, Inc.; and Stephens Media,

LLC.

MCDERMOTT v. AMPERSAND PUBLISHING 1451
OPINION

CLIFTON, Circuit Judge:

National Labor Relations Board Regional Director James J.

McDermott (the Regional Director) appeals the district

court’s denial of temporary injunctive relief under Section

10(j) of the National Labor Relations Act (NLRA), 29 U.S.C.

§ 160(j). The district court decided that “a significant risk of

a First Amendment violation” would arise if Ampersand Publishing, LLC, doing business as The Santa Barbara NewsPress, were forced, among other things, to reinstate employees it discharged for union activity directed at pressuring the

newspaper’s owner and publisher to refrain from exercising

editorial control over news reporting. McDermott ex rel.

NLRB v. Ampersand Publ’g LLC, 2008 U.S. Dist. LEXIS

94596, at *39 (C.D. Cal. May 21, 2008). Weighing the equitable factors generally applicable to a claim for interim injunctive relief with an eye toward the greater burden needed to

grant an injunction that threatens to infringe First Amendment

rights, the district court denied the petition. We affirm.

The First Amendment protects the right of a newspaper to

control its content. The main thrust of the employees’ campaign to secure representation by the Graphic Communications Conference, International Brotherhood of Teamsters (the

Union) appears to have been to block or limit the influence of

the owner and publisher of the News-Press over the content

of the news sections of the paper and to focus that authority

in the employees themselves, as reporters and editors. We

conclude that the district court correctly required a heightened

showing of equitable need under our case law, because the

interim relief sought by the government in support of union

activity aimed at obtaining editorial control poses a threat of

violating the rights of the News-Press under the First Amendment. Applying the Supreme Court’s recent guidance on the

general standard for granting preliminary injunctions, we further determine that the district court did not abuse its discre1452 MCDERMOTT v. AMPERSAND PUBLISHING
tion in declining to order the interim injunctive relief sought

by the Regional Director.

I. Background

As described in more detail below, an NLRB administrative law judge (ALJ) presided over a trial and produced a

lengthy recommended decision and order in this case, currently pending before the Board itself. The factual narrative

provided here is largely drawn from the findings of fact made

by the ALJ as part of that decision.

The News-Press is a daily newspaper published in Santa

Barbara, California. The News-Press’s owner and copublisher, Wendy McCaw, purchased the paper in 2000

through her privately-held company, Ampersand Publishing.

Beginning in 2004, McCaw voiced concerns that the

paper’s news reporting was sometimes biased. She took various actions to try to eliminate the bias she perceived, including issuing warning letters to reporters and conducting staff

training sessions. Early in July 2006, following a series of

clashes over what the district court described as “issues of

content,” several editors and reporters resigned from their

positions at the News-Press to protest what they perceived as

unethical interference in the news-reporting function of the

newspaper by McCaw and her co-publisher, Arthur von

Weisenberger.

The ALJ found that these resignations prompted the

remaining News-Press newsroom employees to seek out the

Union. On July 6, 2006, about thirty employees met with

Union representatives. After discussions with the Union, the

employees drafted a letter to the News-Press, dated July 13,

2006, listing four demands:

1. Restore journalism ethics to the Santa Barbara

News-Press: implement and maintain a clear separaMCDERMOTT v. AMPERSAND PUBLISHING 1453
tion between the opinion/business side of the paper

and the news-gathering side.

2. Invite back the six newsroom editors who recently

resigned . . . .

3. Negotiate a contract with the newsroom employees governing our hours, wages, benefits and working conditions.

4. Recognize [the Union] as our exclusive bargaining

representative.

The next day, July 14, the Union and its employee supporters

held a rally in front of the News-Press building where these

same four demands were read aloud. At another event staged

four days later, News-Press reporters held up four signs, each

stating one of the demands from the July 13 letter.

The News-Press delivered its response to the employees’

July 13 letter on July 17. The response stated that the newspaper “respected the employees’ right to decide whether or not

. . . to have union representation” but declined to recognize

the Union or to invite back the editors who had resigned. At

an internal staff meeting in late July, city editor Scott Steepleton answered employees’ questions concerning McCaw’s

involvement in the news department by saying that, as the

owner of the paper, McCaw “had the right to be part of whatever she wants to be part of.” The paper later published editorials criticizing the Union and proclaiming that it was

“standing firm against allowing outside Union organizers to

influence news coverage or interject bias into reporting.”

At an event on July 20, 2006, the employees unveiled their

campaign to persuade readers to cancel their subscriptions by

September 5 “if [the employees’] demands were not met.”

They distributed pledge cards at that event and at various

other functions in the months that followed that said:

1454 MCDERMOTT v. AMPERSAND PUBLISHING
I, _____, support the Santa Barbara News-Press

newsroom staff in its effort to restore journalistic

integrity to the paper, obtain recognition and negotiate a fair employment contract. Cancel my subscription by Sept. 5, 2006, if the employees’ demands

have not been met to their satisfaction.1

The ALJ found that this “subscription cancellation effort

became the centerpiece of the Union’s campaign concerning

the News-Press.” On September 5, the Union and its supporters held a press conference announcing that the employees’

demands had not been met and asking the public to cancel

their subscriptions to the News-Press to show their support.

On September 24, employees organized a rally and fundraiser

complete with a large banner bearing the message “Cancel

Your Newspaper Today.” During the campaign, union supporters made public statements such as “Don’t let McCaw

control the news” and “Help us take back the News-Press.”

The Union filed a petition with the NLRB on August 10,

2006, to represent a unit of news department employees at the

News-Press. The NLRB conducted an election on September

27, 2006, which the Union won by a vote of 33 to 6. Overruling the News-Press’s objections to the election, the NLRB

certified the Union as the exclusive bargaining representative

of the news department employees on August 16, 2007.

Negotiations for a collective-bargaining agreement commenced on November 13, 2007. No agreement has been

reached.

Between August 2006 and March 2007, the Union filed a

series of charges with the NLRB alleging that the News-Press

had engaged in a variety of unfair labor practices. On May 31,

2007, the Regional Director issued an amended and consoli1The original demand to invite back the editors who had resigned in

protest was omitted from the pledge cards and was not thereafter linked

to the subscription cancellation drive. 

MCDERMOTT v. AMPERSAND PUBLISHING 1455
dated complaint against the News-Press. Among other things,

the complaint alleged that the News-Press had violated paragraphs 8(a)(1) and (a)(3) of the NLRA2

 by discharging eight

employees because they engaged in union activity. One of

those employees was terminated in October 2006, another in

January 2007, and the other six in February 2007. The complaint also alleged that the News-Press had committed a host

of additional unfair labor practices ranging from improperly

reprimanding employees to failing to provide employees with

adequate raises and bonuses.

A 17-day trial before an ALJ was conducted on the allegations in the complaint. On December 26, 2007, the ALJ issued

a recommended decision and order. He concluded that the

News-Press had committed numerous unfair labor practices

and recommended that relief be granted, including reinstatement of the eight discharged employees, constituting more

than 20 percent of the newsroom staff.

Regarding the News-Press’s First Amendment defenses,

the ALJ observed that “a purpose of the union activities of the

employees was directed toward what they viewed as a need

to restore journalistic integrity at the News-Press.” He identified the “First Amendment protection of Freedom of the

Press” as the “starting point in this analysis.” The ALJ recognized that “this protection belongs to the publisher of a newspaper and not to the reporters in their role as employees.”

2Those provisions of the NLRA read in relevant part: 

(a) It shall be an unfair labor practice for an employer — 

(1) to interfere with, restrain, or coerce employees in the exercise

of the rights [to organize and engage in collective bargaining

activities] guaranteed in section 157 of this title; 

(3) by discrimination in regard to hire or tenure of employment

or any term or condition of employment to encourage or discourage membership in any labor organization . . . . 

29 U.S.C. § 158(a)(1), (3). 

1456 MCDERMOTT v. AMPERSAND PUBLISHING
Nevertheless, he concluded that the First Amendment does

not limit government-mandated collective bargaining aimed at

“restoring editorial integrity.” Such collective bargaining was

warranted, the ALJ reasoned, because the News-Press had

engaged in “conduct that employees believe undermines their

credibility as journalists” and adopted policies that “could be

viewed [as] vague and ambiguous.” Thus, the ALJ concluded

that “the matter of journalistic integrity may be a matter over

which employees may bargain through its collectivebargaining representative.”

The ALJ rejected the notion that “the employees were

attempting to gain entrepreneurial control of the newspaper”

and instead credited the testimony of one employee that “the

union campaign was not part of an effort to let the reporters

rather [than] management control the content of the newspaper.” Having decided that First Amendment rights did not

come into play, the ALJ found that the News-Press failed to

establish that it would have taken the same actions even if the

employees had not engaged in protected union activities.

The parties each filed numerous objections to the ALJ’s

recommended decision and order. The case remains pending

before the Board.

The Regional Director had previously requested permission

from the Board to file a Section 10(j) petition seeking an

injunction against the News-Press. The Board denied this

request on June 15, 2007. On December 20, 2007, the then

four-member Board, anticipating that it would soon have

fewer than the three members needed for a quorum, see 29

U.S.C. § 153(b), entered a temporary delegation order.

Through this order, which became effective on December 28,

2007, the Board gave the General Counsel full “authority on

all court litigation matters that otherwise would require Board

authorization.” NLRB Press Release R-2653 (Dec. 28, 2007).3

3A copy of the press release may be found at http://www.nlrb.gov/

shared_files/Press Releases/2007/R-2653.pdf (last checked December 30,

2009). 

MCDERMOTT v. AMPERSAND PUBLISHING 1457
Specifically, the Board temporarily delegated to the General

Counsel “full and final authority and responsibility on behalf

of the Board to initiate and prosecute injunction proceedings

under Section 10(j).” Id.

Over two months after this delegation of authority became

effective, and despite the Board’s initial refusal to authorize

the petition, the Regional Director filed a Section 10(j) petition for a temporary injunction on March 6, 2008.4

 This petition sought an injunction compelling the News-Press, among

other things, to offer interim reinstatement to each of the eight

terminated employees.

The district court denied the petition for Section 10(j) relief

on May 22, 2008. McDermott, 2008 U.S. Dist. LEXIS 94596.

The court held that the requested injunction, “in its entirety,”

posed “a significant risk of violating [the News-Press’s] First

Amendment rights” since the “employees’ Union-related

activity had as a central demand the ceding of an aspect of

[the News-Press’s] editorial discretion.” Id. at *16, 22.

Accordingly, the district court applied the heightened burden

for obtaining relief set forth in Overstreet ex rel. NLRB v.

United Brotherhood of Carpenters and Joiners of America,

409 F.3d 1199 (9th Cir. 2005). Considering the “traditional

equitable criteria” for interim injunctive relief and the First

Amendment implications of the petition, the district court

concluded that the Regional Director fell short of establishing

that relief would be “just and proper” and therefore denied the

Section 10(j) petition. McDermott, 2008 U.S. Dist. LEXIS

94596, at *39-48.

The Regional Director timely appealed the district court’s

decision.

4Because we affirm the district court’s denial of Section 10(j) relief on

other grounds, it is not necessary for us to reach the parties’ arguments

concerning the legality of the Board’s delegation of its power. 

1458 MCDERMOTT v. AMPERSAND PUBLISHING
II. Discussion

We apply the same standard of review to the district court’s

denial of relief under Section 10(j) as we would to the denial

of any other preliminary injunction. Miller ex rel. NLRB v.

Cal. Pac. Med. Ctr., 19 F.3d 449, 455 (9th Cir. 1994) (en

banc). Accordingly, we will reverse the denial of Section

10(j) injunctive relief “only where the district court abused its

discretion or based its decisions on an erroneous legal standard or on clearly erroneous findings of fact.” Id. Whether the

district court applied the correct legal standards is reviewed

de novo. Id.; see also Overstreet, 409 F.3d at 1204.

[1] Ordinarily the NLRB enjoys primary jurisdiction over

labor disputes, subject only to narrow judicial review. See

Miller, 19 F.3d at 458. Section 10(j) of the NLRA, however,

permits the NLRB to petition a federal district court “for

appropriate temporary relief or restraining order” pending the

Board’s resolution of an unfair labor practice charge. 29

U.S.C. § 160(j). The district court is given authorization to

grant “such temporary relief or restraining order as it deems

just and proper,” id., keeping in mind that the underlying purpose of Section 10(j) is “to protect the integrity of the collective bargaining process and to preserve the Board’s remedial

power while it processes the charge.” Miller, 19 F.3d at 459-

60. 

[2] To decide whether granting a request for interim relief

under Section 10(j) is “just and proper,” district courts consider the traditional equitable criteria used in deciding

whether to grant a preliminary injunction. See id. at 456. In

evaluating the validity of the district court’s analysis of the

equitable factors, we must employ the Supreme Court’s recent

interpretation of the threshold showing necessary for granting

such an “extraordinary remedy.” Winter v. Natural Res. Def.

Council, 129 S. Ct. 365, 374-76 (2008). Our now defunct precedents had provided “that when a plaintiff demonstrates a

strong likelihood of prevailing on the merits, a preliminary

MCDERMOTT v. AMPERSAND PUBLISHING 1459
injunction may be entered based only on a ‘possibility’ of

irreparable harm.” Id. at 375; see, e.g., Scott ex rel. NLRB v.

Stephen Dunn & Assocs., 241 F.3d 652, 661 (9th Cir. 2001)

(using this standard in evaluating Section 10(j) petitions for

injunctive relief). Shunning the more lenient standard adopted

by our circuit, the Supreme Court in Winter held that a party

seeking a preliminary injunction “must establish that he is

likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

the public interest.” 129 S. Ct. at 374. “To the extent that our

cases have suggested a lesser standard, they are no longer

controlling, or even viable.” Am. Trucking Ass’n, Inc. v. City

of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). 

[3] In Overstreet, a case decided before Winter, we held

that a higher bar than usual is set for those seeking injunctive

relief pending a Board decision in instances where “there is

at least some risk that constitutionally protected speech will

be enjoined.”

5

 409 F.3d at 1208 n.13 (emphasis added). The

NLRB’s regional director in that case sought to enjoin members of a trade union from displaying banners that announced

a labor dispute, alleging that the action constituted an unfair

labor practice. Id. at 1201-02. We held in Overstreet that the

significant First Amendment implications of enjoining peaceful speech activity meant the “ordinary principles of deference

to Board interpretation of the Act d[id] not apply.” Id. at

1207. Further, in light of the risk that protected First Amendment speech would be restrained, we concluded that “only a

5Overstreet involved a petition brought under Section 10(l), which

makes it mandatory that regional officers file for injunctive relief whenever there is “reasonable cause” to believe a charge of certain NLRA

offenses is true. 409 F.3d at 1205. Section 10(j), in contrast, gives the

Board discretion (which in this case the Board delegated to the General

Counsel) to decide whether to file for such injunctive relief. Id. The distinction between Section 10(l) and Section 10(j) petitions does not affect

the standard a court must apply in assessing the propriety of a proposed

injunction. See id.

1460 MCDERMOTT v. AMPERSAND PUBLISHING
particularly strong showing of likely success, and of harm . . .

as well, could suffice” to justify issuing the requested injunction. Id. at 1208 n.13. 

[4] We see no reason why Overstreet’s rule that a “particularly strong showing” is required to grant a Section 10(j)

injunction when the proposed relief risks violating the First

Amendment should not survive Winter’s change to our baseline preliminary injunction standard. Nothing in Winter conflicts with our requirement that those seeking such injunctive

relief must establish particularly strong showings of likelihood of success and irreparable harm if there is some risk of

offending First Amendment rights in the process. Nothing in

Overstreet suggests that the heightened standard it announced

for granting injunctive relief that risks licensing First Amendment violations was tied to the prevailing general preliminary

injunction framework. See Overstreet, 409 F.3d at 1207-08

(“To say that Miller applies to this case does not . . . fully

delineate the applicable standards for judging the propriety of

the requested interim relief . . . because of the First Amendment backdrop in this case.”). We hold, therefore, that Overstreet’s First Amendment precepts remain intact after Winter.

A. Overstreet’s Heightened Equitable Relief Standard

Applies Here

The Regional Director argues that the district court erroneously applied Overstreet’s elevated standard “because the

record and the law establish that there is no risk of First

Amendment infringement.” The News-Press responds that the

employees’ central demand in their union campaign was for

the News-Press to relinquish editorial control over the content

of its news reports and that the employees backed up this

demand with economic coercion, notably by urging readers to

cancel their subscriptions. The News-Press maintains that

“giving employees a protected entitlement under the imprimatur of the NLRA to apply economic pressure on the NewsPress to cede editorial control” would create “a significant

MCDERMOTT v. AMPERSAND PUBLISHING 1461
risk of infringing upon the News-Press’s First Amendment

rights.” We conclude that the district court correctly determined that granting the requested injunction would present at

least some risk of compromising the News-Press’s First

Amendment right to exercise editorial control.

Recognizing the union’s argument that enjoining its members from displaying banners about a labor dispute would be

unconstitutional was “a plausible, and quite possibly meritorious one,” Overstreet held that interpreting the NLRA to prohibit the union’s activity would pose a “significant risk” of

violating the First Amendment. 409 F.3d at 1211, 1212.

Accordingly, applying the constitutional avoidance principle

of statutory construction, we interpreted the NLRA so as not

to prohibit the conduct at issue. See id. at 1210-12. Since the

Board could not establish the pre-Winter “irreducible minimum” showing of “a fair chance of success on the merits,” we

affirmed the district court’s denial of interim relief. Id. at

1207, 1216, 1219 (internal quotation marks omitted).

[5] Resolving whether Overstreet’s heightened equitable

standard for awarding Section 10(j) relief controls here does

not require us to “decide whether the First Amendment does

protect the [News-Press’s challenged activity], or even

whether it probably does.” Id. at 1209. Rather, we need only

determine whether granting the Regional Director’s injunction

request would create “at least some risk that constitutionally

protected speech will be enjoined.” Id. at 1208 n.13.

“[B]ecause constitutional decisions are not the province of the

NLRB (or the NLRB’s Regional Director or General Counsel), the tasks of evaluating the constitutional pitfalls of potential interpretations of the [NLRA] . . . are committed de novo

to the courts.” Id. at 1209. 

Newspapers are not entitled to blanket immunity from general regulations, and the NLRA’s prohibition on deterring

union activity is no exception. In Associated Press v. NLRB,

301 U.S. 103 (1937), the Supreme Court considered an order

1462 MCDERMOTT v. AMPERSAND PUBLISHING
by the NLRB directing the Associated Press to stop penalizing its employees for engaging in union activity and to reinstate an editor whom the NLRB found was fired because of

his union activity. Id. at 124. The Court upheld the NLRB’s

order and rejected the AP’s contention that it must have “absolute and unrestricted freedom to employ and to discharge”

news editors at will, observing that “[t]he business of the

Associated Press is not immune from regulation because it is

an agency of the press.” Id. at 131, 132.

The Court did not hold, however, that First Amendment

concerns were entirely irrelevant and should always be set

aside in the face of an NLRB order. To the contrary, the Court

emphasized that enforcement of the order at issue there had

“no relation whatsoever to the impartial distribution of news.”

Id. at 133. The Court explicitly noted that the order did not in

any way “circumscribe[ ] the full freedom and liberty of the

[AP] to publish the news as it desires it published or to

enforce policies of its own choosing with respect to the editing and rewriting of news for publication.”

6

Id. With this

caveat, the Court signaled that application of regulations that

restricted those press liberties could be constitutionally problematic. See Passaic Daily News v. NLRB, 736 F.2d 1543,

1557 (D.C. Cir. 1984) (“The Court implied [in Associated

Press] that should the press’s freedom and liberty ‘to publish

the news as it desires it to be published’ be circumscribed, the

[NLRA] would have to yield to the First Amendment.”).

[6] It is clear that the First Amendment erects a barrier

against government interference with a newspaper’s exercise

of editorial control over its content. Elaborating on the consti6The Court’s decision did not discuss the specific motivation of the

employees in that case for supporting the union. It may be inferred that it

was the more usual concern of employees for wages and hours. That is

confirmed by the underlying decision of the NLRB, which referred to the

lowering of wages in the industry during the Depression, and the AP’s

replacement of a five-day work week with a six-day work week. The Associated Press, 1 NLRB 686, 691, 693 (1936). 

MCDERMOTT v. AMPERSAND PUBLISHING 1463
tutional guarantees afforded to newspaper publishers, the

Supreme Court has explained:

The choice of material to go into a newspaper, and

the decisions made as to limitations on the size and

content of the paper, and treatment of public issues

and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment.

It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free

press . . . .

Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258

(1974); see also Associates & Aldrich Co. v. Times Mirror

Co., 440 F.2d 133, 136 (9th Cir. 1971) (holding private newspapers cannot be compelled to publish advertisements free

from editorial control of their content). The Court in Tornillo

thus struck down a state statute that forced newspapers to

publish a political candidate’s reply to stories criticizing the

candidate, holding that such a law impermissibly intrudes on

a newspaper’s right to choose what to print. See Tornillo, 418

U.S. at 257-58. 

Following Tornillo, the D.C. Circuit declined to enforce

part of an NLRB order requiring a newspaper to reinstate a

columnist found to have been discharged for engaging in

union activity and to resume printing his weekly column subject to lawful employment and publication standards. Passaic

Daily News, 736 F.2d at 1556-59. Passaic deemed the

NLRB’s order constitutionally defective because it “invites

the Board to review the Company’s publication standards and

to become directly involved with the Company’s exercise of

editorial control and judgment.” Id. at 1559. According to the

court, “[a]n order that merely directed the Company to not

1464 MCDERMOTT v. AMPERSAND PUBLISHING
discriminate against [the fired columnist] on the basis of his

union activity would present a much closer case.”

7

Id.

The district court noted that the proposed injunctive relief

in this case is “more indirect” than the orders at issue in Tornillo and Passaic Daily News, because it would not “force

publication of specific content,” as did the orders in those

cases. McDermott, 2008 U.S. Dist. LEXIS 94596, at *28.8

Nonetheless, it concluded that the requested injunction would

burden the exercise of editorial discretion by the News-Press.

Id. at *28-29. It specifically found that the “employees’

Union-related activity had as a central demand the ceding of

an aspect of [the News-Press’s] editorial discretion.” Id. at

*22. The district court further found that the employees

sought to force the News-Press to give in to their unionbacked demand for the relinquishment of editorial control

through economic pressure tactics. Id. at *22-23. These findings of fact are not clearly erroneous and are supported by the

record. See supra at 1453-55.

The union organizing campaign arose in the wake of an

extended dispute between the News-Press management and

newsroom employees regarding allegedly biased reporting

and newspaper content. The first of the four demands was for

the News-Press to “[r]estore journalism ethics to the [newspaper]: implement and maintain a clear separation between the

opinion/business side of the paper and the news-gathering

side.” This demand reflected the belief of some news reporters that there had been a “breakdown of a ‘wall’ that should

7On remand, the Board called for the columnist to be restored to his

prior position with no guarantee that his columns would be published.

Herald News, 276 NLRB No. 78 (1985). This later order was not challenged. 

8The ALJ’s decision cites the cancellation by the News-Press of a column written by a union supporter as an unlawful unfair labor practice, an

approach which appears in conflict with Passaic Daily News, but the ALJ

did not go so far as to recommend ordering restoration of the column

because the employee subsequently resigned. 

MCDERMOTT v. AMPERSAND PUBLISHING 1465
separate [the publisher’s] control of the opinion pages of the

newspaper from control over the news reporting pages.”

Melinda Burns, one of the lead Union organizers and one of

the terminated employees whose reinstatement would be

ordered by the proposed injunction, testified:

To keep its credibility, a newsroom has to have independence from the editorial side of the paper . . . .

The editorial side is the opinion side. The publisher’s

opinion is in the editorials. The news side has to

have the independence and freedom to report the

news, gather the news . . . and not to be pressured by

the publisher to report it or gather it in a certain way.

She wanted, in short, to be “able to report the news as truthfully as I can and as fairly as I can without a publisher telling

me how to write it.” (emphasis added). The employees’

content-specific demand was repeated at various Union-led

demonstrations leading up to the Union election.

[7] The cancellation drive was also tied to the employees’

desire for editorial independence from management. Pledge

cards specifically asked recipients to support the “newsroom

staff in its effort to restore journalistic integrity to the paper”

by cancelling their subscriptions. This history persuades us

that the employee-initiated union campaign aspired in large

part to compel the publisher of the News-Press to relinquish

to the newsroom staff editorial control over the reporting of

the news, which lies at the core of a newspaper’s First

Amendment rights. 

[8] Under these circumstances, as the district court aptly

observed, it “does not seem possible to parse, at least in the

manner the ALJ sought to do, [the newspaper’s] animus

toward the Union generally from its desire to protect its editorial discretion. The motives necessarily overlapped in this

case.” McDermott, 2008 U.S. Dist. LEXIS 94596, at *37. We

agree.

1466 MCDERMOTT v. AMPERSAND PUBLISHING
We also observe that the ALJ appeared to believe that the

fact that “editorial integrity” was a proper subject for collective bargaining supported a conclusion that First Amendment

rights were not at issue. That simply does not follow, and the

qualifications drawn by the Supreme Court in Associated

Press indicate otherwise. That employees may want to bargain collectively over a given subject does not necessarily

mean that there can be no First Amendment implications. The

rights of employees to organize and engage in collective bargaining may, understandably, be the primary focus and concern of the NLRB, but they do not supersede the First

Amendment. As we noted in Overstreet, 409 F.3d at 1209, we

owe no deference to the administrative agency’s view of the

First Amendment. 

[9] Deploying the NLRA to protect the employees’ efforts

in support of the Union would risk “circumscrib[ing] the full

freedom and liberty of [the News-Press] to publish the news

as it desires it published [and] to enforce policies of its own

choosing with respect to the editing and rewriting of news for

publication.” Associated Press, 301 U.S. at 133. The injunction the Regional Director seeks here would prevent the

News-Press from taking action against employees for engaging in activities calculated to pressure the News-Press into

limiting its exercise of editorial discretion. We conclude that

the requested interim relief would risk violating the NewsPress’s constitutionally protected editorial discretion by

removing an otherwise available weapon to resist employees’

attempts to seize control over the newspaper’s content. See

Tornillo, 418 U.S. at 256 (“Governmental restraint on publishing need not fall into familiar or traditional patterns to be

subject to constitutional limitations on governmental powers.”).

[10] We do not pass judgment on the validity of the

employees’ concerns with respect to journalistic integrity. We

cannot, however, ignore the Supreme Court’s teaching on the

subject: “A responsible press is an undoubtedly desirable

MCDERMOTT v. AMPERSAND PUBLISHING 1467
goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.” Id.

No matter how laudable the goals of the fired reporters in promoting the Union to, as the ALJ put it, “restore journalistic

integrity,” the risk that granting an injunction will infringe the

News-Press’s right to publish what it pleases is inescapable.

See id. (declaring that any “compulsion exerted by government on a newspaper to print that which it would not otherwise print” is unconstitutional); see also Laird v. Tatum, 408

U.S. 1, 11 (1972) (“[C]onstitutional violations may arise from

the deterrent, or ‘chilling,’ effect of governmental regulations

that fall short of a direct prohibition against the exercise of

First Amendment rights.”). For that reason, we conclude that

the district court did not err in concluding that the additional

requirements of Overstreet must be met in evaluating whether

to grant the Section 10(j) petition.

The dissenting opinion concludes that the proposed injunction does not pose a significant risk of infringing the First

Amendment because it does not directly “require the paper to

change its editorial policy” or “dictat[e] what a newspaper

must publish.” Infra at 1479, 1480. We think that approach

closes its eyes to what the underlying labor dispute here is

about: the ability of the newspaper owner and publisher to

exercise control over the news pages of the News-Press. See

Tornillo, 418 U.S. at 259 (White, J., concurring) (“[T]he First

Amendment erects a virtually insurmountable barrier between

government and the print media so far as government tampering, in advance of publication, with news and editorial content

is concerned.”). Intervening to support the employees’ effort

to limit the control of the News-Press’s owner over its news

pages necessarily poses some risk to that owner’s First

Amendment rights. See Pacific Gas & Electric Co. v. Public

Utilities Com., 475 U.S. 1, 33 (1986) (“[I]nterference with the

exercise of editorial control and judgment creates a peril for

the liberty of the press like government control over what is

to go into a newspaper.” (internal quotation marks omitted));

see also Regan v. Taxation With Representation of Washing1468 MCDERMOTT v. AMPERSAND PUBLISHING
ton, 461 U.S. 540, 553 (1983) (Blackmun, J., concurring) (“It

hardly answers one person’s objection to a restriction on his

speech that another person, outside his control, may speak for

him.”); Tornillo, 418 U.S. at 258 (observing that “[a] newspaper is more than a passive receptacle or conduit for news,

comment, and advertising” and holding that government

action “fails to clear the barriers of the First Amendment”

when it “intru[des] into the function of editors.”)). 

Telling the newspaper that it must hire specified persons,

namely the discharged employees, as editors and reporters

constituting over 20 percent of its newsroom staff is bound to

affect what gets published. To the extent the publisher’s

choice of writers affects the expressive content of its newspaper, the First Amendment protects that choice. See Hurley v.

Irish-American Gay, Lesbian and Bisexual Group of Boston,

515 U.S. 557, 572-73 (1995) (holding that because “every

participating . . . unit affects the message conveyed by [a

parade’s] private organizers,” a state court’s interpretation of

a law to require inclusion of one group of prospective marchers “violates the fundamental rule of protection under the First

Amendment, that a speaker has the autonomy to choose the

content of his own message”); see also First Nat’l Bank of

Boston v. Bellotti, 435 U.S. 765, 784-85 (1978) (“In the realm

of protected speech, the legislature is constitutionally disqualified from dictating . . . the speakers who may address a public issue.”).

The dissenting opinion also contends that the First Amendment rights of the News-Press and its owner would be unaffected because the newspaper would be free to operate as it

did before, without change. But that assumes that the Union’s

efforts to effect a change will fail. It is surely not the premise

of the ALJ’s decision or the proposed injunction that the

newspaper owner will prevail and that the employees’ efforts

are bound to be for naught. There would be no point to

requesting or ordering interim relief here unless it was

expected to have an impact. The proposed injunction is aimed

MCDERMOTT v. AMPERSAND PUBLISHING 1469
at strengthening the Union’s hand against the owner, and that

will impair the owner’s right to control the newspaper’s content. It may be true, as the dissenting opinion states, infra at

1483, that “[t]here is no more reason to expect the NewsPress would be forced to agree to reestablish a firewall than

to expect it to be forced to capitulate to employees’ other contract demands.” But employers are regularly forced by unions

to capitulate to more traditional wage and hour demands. See

NLRB v. Trimfit of California, Inc., 211 F.2d 206, 208-209

(9th Cir. 1954) (affirming an NLRB order requiring reinstatement of pro-Union former employees); see also 29 U.S.C.

§ 157 (codifying the rights of employees “to bargain collectively . . . and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or protection”) (emphasis added). The risk of that happening is far

from zero.

First Amendment rights are not jeopardized when it comes

to those wage and hour demands — a newspaper is not protected by the First Amendment against having to pay more

money to its reporters — but freedom of the press is jeopardized when the employees’ primary demand is for the publisher to cede control of her newspaper’s content. In sum, we

do not share the view of the dissenting opinion that the NewsPress’s ability to control its content would not be put in at

least some risk by the requested injunction. As a result, we

agree with the district court that Overstreet’s heightened equitable relief standard applies. 

B. The District Court Did Not Abuse Its Discretion in

Finding the Equities Did Not Weigh in Favor of Granting Relief

The district court concluded that the Regional Director

failed to meet the heightened burden for interim relief, given

the First Amendment concerns it identified. Though the district court may have been guided by the “too lenient” preliminary injunction standards of our pre-Winter cases, we will not

1470 MCDERMOTT v. AMPERSAND PUBLISHING
disturb its denial of relief unless the denial itself constituted

an abuse of discretion.9See Am. Trucking Ass’n, 559 F.3d at

1052 (“The district court applied our pre-Winter approach, but

because it denied relief that, itself, does not require reversal.”). If we would affirm the denial of an injunction under

our prior standard, we would necessarily affirm the denial of

that injunction under the more stringent Winter standard. Cf.

Johnson v. Couturier, 572 F.3d 1067, 1084-85 (9th Cir. 2009)

(affirming the grant of injunctive relief “[a]lthough the validity of the district court’s approach [was] questionable postWinters,” when its analysis impliedly supported the necessary

finding of irreparable harm). 

In light of the First Amendment issues in this case, we conclude that the district court did not abuse its discretion by

declining to grant preliminary injunctive relief. The standard

for such relief is a tough one, taking into account Overstreet’s

increased demands. See 409 F.3d at 1208 n.13 (“[W]here, as

here, there is at least some risk that constitutionally protected

speech will be enjoined, only a particularly strong showing of

likely success, and of harm to the defendant as well, could

suffice.”); see also Miller, 19 F.3d at 460-61 (“Where the

Board and the respondent each make a showing of hardship,

the district court must exercise its sound discretion to determine whether the balance tips in the Board’s favor.”); accord

Winter, 129 S. Ct. at 376 (“In each case, courts must balance

the competing claims of injury and must consider the effect

on each party of the granting or withholding of the requested

[injunctive] relief.”) (internal quotation marks omitted).

We start the analysis, as did the district court, by considering the likelihood of success. In this case, success for the

9Given the district court’s application of Overstreet’s raised bar for preliminary injunctive relief (which applies post-Winter as well), it is not

clear whether the standard applied was actually more lenient than the one

announced in Winter, which did not address any First Amendment concerns. 

MCDERMOTT v. AMPERSAND PUBLISHING 1471
Regional Director is defined by whether the Board would

adopt the findings and recommendations of the ALJ and

whether, in that event, our court would conclude that the

Board’s order should be enforced. 

As a preliminary matter, we note that we do not presume

that the Regional Director’s position will ultimately be

adopted by the Board. A Board itself deciding to file a Section

10(j) petition might signal its future decision on the merits,

assuming the facts alleged in the petition withstand examination at trial. See Overstreet, 409 F.3d at 1207 n.12. In this

case, however, the Board initially declined to file a petition

for relief. It was only after the Board delegated its authority

to its General Counsel that a petition for interim relief was

actually filed. See id. (remarking that since regional directors

determine whether to file Section 10(l) petitions such filings

“suggest[ ] nothing about how the Board will ultimately

resolve the case”). The fact that “the General Counsel issued

a complaint and an ALJ ruled in favor of the General Counsel

by no means foreordains the Board’s decision.” Id.

[11] For the most part, the district court appeared to address

the factors relevant to the question of likelihood of success

within its discussion of Overstreet’s application in light of the

First Amendment interests implicated by the requested relief.

Having already concluded that the First Amendment rights of

the News-Press were at risk of being infringed, the district

court simply concluded that “it [could not] find that [the

Regional Director] has such a strong likelihood of success as

to presume irreparable harm.” McDermott, 2008 U.S. Dist.

LEXIS 94596, at *41. As revealed in its discussion of the subsequent factors, the most the district court appeared willing to

grant the Regional Director’s position was the unexplored

possibility that it presented “serious questions going to the

merits.” Id. at *45. Under Winter, of course, that would not

be enough to support the entry of a preliminary injunction,

regardless of the other factors. As suggested in our own discussion of Overstreet above, we conclude that the district

1472 MCDERMOTT v. AMPERSAND PUBLISHING
court did not abuse its discretion in this portion of its evaluation.

[12] The next element to be considered is irreparable harm.

The Regional Director contends that a failure to grant the

requested injunction will result in irreparable harm to the discharged employees and the Union’s collective bargaining

efforts. The district court concluded, however, that entering a

preliminary injunction would not actually make much difference, primarily due to the passage of time. Specifically, the

court found “little basis to believe, given the long delay, that

an interim order at this point will provide any genuine reassurance to employees beyond that provided by a final Board

order that unfair labor practices committed by [the NewsPress] will be timely remedied.” Id. at *44-45. We do not disagree with that assessment.

We note that “[d]elay by itself is not a determinative factor

in whether the grant of interim relief is just and proper.”

Aguayo ex rel. NLRB v. Tomco Carburetor Co., 853 F.2d 744,

750 (9th Cir. 1988), overruled on other grounds by Miller, 19

F.3d 449. The factor of delay “is only significant if the harm

has occurred and the parties cannot be returned to the status

quo or if the Board’s final order is likely to be as effective as

an order for interim relief.” Id. Most of the delay in this case

has resulted from the time taken by the litigation process

itself, and the Regional Director cannot be faulted for that.

But at least some of the delay was caused by the Regional

Director’s deferred petition for preliminary injunctive relief.

Among other measures, the Regional Director requests

reinstatement of eight employees who were discharged

between October 2006 and February 2007. The Section 10(j)

petition requesting the employees’ interim reinstatement was

not filed until March 2008, some 13 to 17 months after the

employees were discharged. The Regional Director asserts

that the decision to seek Section 10(j) authorization was prudently postponed until the ALJ issued its decision, but in June

MCDERMOTT v. AMPERSAND PUBLISHING 1473
2007, two months before the hearing before the ALJ, the

Board refused the Regional Director’s request for permission

to bring a Section 10(j) petition in this case. The Board’s temporary delegation of authority to the General Counsel to initiate Section 10(j) proceedings became effective just two days

after the ALJ’s decision was issued. The Regional Director

waited over two months after that to file the instant petition.

Under the circumstances, it is not apparent to us that the

district court was wrong in concluding that a preliminary

injunction would not actually make a practical difference

here. At this point, the parties appear to be waiting for the

Board’s adjudication. It seems unlikely that a final order of

the Board would be any less effective as a result of the denial

of interim relief. 

[13] Moving to the balance of hardships, the district court

concluded that the balance did not tip sharply in favor of

granting equitable relief, again applying the pre-Winter standard under which preliminary injunctive relief could be supported by serious questions on the merits plus a strong

showing of irreparable harm and a sharp tipping of the balance of hardships. We are not entirely confident that the district court gave appropriate weight to the rights of the

discharged employees in weighing this balance, because it

appeared to express equal concern for what would happen to

the jobs of employees hired by the News-Press to replace the

discharged Union members. The rights of improperly discharged employees, assuming they were in fact wrongfully

terminated, are superior to those of their replacements.

Aguayo, 853 F.2d at 750. Primarily, though, the district court

focused on what is, in fact, the primary conflict here: the

rights of the employees to organize versus the right of the

newspaper to exercise and defend what it asserts are its First

Amendment rights. We agree with the district court’s determination that the Regional Director has not made a showing that

1474 MCDERMOTT v. AMPERSAND PUBLISHING
the balance of hardships tips in his favor to the degree that

would be necessary to support the interim relief sought here.10

III. Conclusion

In sum, we affirm the district court’s denial of the Regional

Director’s Section 10(j) petition for interim relief. The factual

findings on which its decision rests are not clearly erroneous.

The district court correctly applied Overstreet’s increased

demands given the First Amendment concerns at issue and

did not abuse its discretion in concluding that relief was not

“just and proper” based on its assessment of the traditional

equitable factors.

AFFIRMED.

HAWKINS, Circuit Judge, Dissenting:

The majority relies on cases in which the party seeking an

injunction was attempting to enjoin speech, claiming the

result here necessarily follows from cases (1) reviewing a

decision forcing a union to cease expressing its views through

bannering, Overstreet v. United Bhd. of Carpenters, Local

Union No. 1506, 409 F.3d 1199, 1203 (9th Cir. 2005), (2)

seeking to compel a newspaper to publish content from a

political candidate, Miami Herald Publ’g Co. v. Tornillo, 418

U.S. 241, 243 (1974), or (3) reviewing an order requiring a

newspaper to resume publishing a weekly column to which it

objected, Passaic Daily News v. NLRB, 736 F.2d 1543, 1548

10The district court did not separately discuss the fourth factor subsequently identified by the Supreme Court in Winter, the public interest. 129

S. Ct. at 374. A strong claim can be presented on behalf of the right of

employees to organize and bargain collectively, but, as noted above, that

right does not trump the First Amendment, so it cannot justify entry of a

preliminary injunction that was denied by the district court based on consideration of the other factors. 

MCDERMOTT v. AMPERSAND PUBLISHING 1475
(D.C. Cir. 1984). In other words, the majority finds the

grounds for its conclusion in cases seeking to enjoin or compel speech or its content.

This is not such a case. The injunction here only seeks reinstatement for terminated employees. Period. It does not enjoin

speech. Rather, the injunction addresses troublesome, retaliatory terminations and disciplinary actions the News-Press

took only after union organizing began. The injunction

addresses terms and conditions of employment, and it leaves

the News-Press’s right to publish its desired content entirely

intact.1 Under the injunction, the News-Press was and is per1The proposed injunction reads as follows: 

[The News-Press shall] Cease and desist from: 

(a) Discharging employees for engaging in Union or other protected concerted activities; 

(b) Informing employees that they will be suspended for

engaging in Union or other protected concerted activities; 

(c) Retaliating against employees for engaging in Union or

other protected concerted activities by inter alia giving them poor

work evaluations; 

(d) Threatening employees with discipline and discharge if

they engage in peaceful employee conduct, such as employee delegations; 

(e) Prohibiting employees from wearing buttons with protected

messages, such as “McCaw, Obey the Law”; 

(f) Prohibiting employees from displaying signs with protected

messages, such as “McCaw, Obey the Law”; 

(g) Coercively interrogating employees, verbally or in writing,

concerning their Union or other protected activities; 

. . . 

Take the following affirmative action: 

(a) Within five days of the issuance of this Order, offer interim

reinstatement to [the eight fired employees] to their former job

positions and working conditions, or if those job positions no longer exist, to substantially equivalent positions without prejudice

1476 MCDERMOTT v. AMPERSAND PUBLISHING
fectly free to insist on total editorial control in labor negotiations, leaving it able to lockout employees who do not agree

to such terms. 

The News-Press sees this case as one in which it may have

to withstand economic pressure from its employees who are

unhappy with the paper’s management. Exerting such pressure is the very essence of union activity. “[T]he reason for

labor organizations . . . [is] to give laborers opportunity to

deal on an equality with their employer.” NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 33 (1937). Where, as here,

an injunction does not implicate First Amendment concerns,

this core purpose of the National Labor Relations Act

(“NLRA”) is properly protected through a section 10(j)

injunction when organizing employees are fired because of

their union activities.

Three facts are critical here. First, this case is not about the

six editors and reporters who resigned citing editorial differences with the News-Press. It is about the eight newsroom

employees who responded to what they saw as arbitrary management by seeking union protection, and were then fired for

their union activities. Second, only after the fired employees

engaged in the protected union activity did the News-Press

bring any issue regarding their alleged “bias” or “disloyalty”

to the employees’ attention or note such issues in their personto their seniority or other rights and privileges previously

enjoyed, displacing, if necessary, any newly hired or reassigned

workers; 

(b) Within five days of the issuance of this Order, rescind and

remove from the personnel files of [the eight fired employees]

any reference to their discharges, pending the final decision of

the Board; 

(c) Within five days of the issuance of this Order, rescind and

remove from all personnel files any reference to warnings or

notices of suspensions given to any employee for participating in

the employee delegation . . . . 

MCDERMOTT v. AMPERSAND PUBLISHING 1477
nel files. Third, examining these facts in a thoughtful, 75-page

opinion, following a 17-day trial, the ALJ concluded the

News-Press committed numerous unfair labor practices, and

the employees’ union activities prompted the News-Press’s

challenged actions. The ALJ thus recommended relief, including reinstatement of the eight discharged employees.

A. Deference to the Board

The majority’s opinion turns in part on finding Overstreet

controlling. Maj. Op. 1461, 1468, 1475. However, beyond the

magic words of “the National Labor Relations Act” and “the

First Amendment,” the facts of Overstreet, a secondary boycott case, are fundamentally different.2

In Overstreet, the outcome turned in part on whether the

union’s bannering activities constituted “threaten[ing], coerc-

[ing], or restrain[ing] any person engaged in commerce”

under Section 8(b)(4)(II) of the NLRA. The opinion characterized those words as “vague” and their application as “far

from self-evident.” Overstreet, 409 F.3d at 1212. Given this

ambiguity, the court inquired into whether the Board’s “proposed construction of the Act ‘would give rise to serious constitutional questions’ ” and therefore require construing

ambiguous statutory language to avoid such questions. Id. at

1209 (quoting NLRB v. Catholic Bishop of Chicago, 440 U.S.

490, 501 (1979)). Overstreet held “serious constitutional

questions” are implicated where an injunction would present

“a significant risk that the First Amendment will be infringed”

even without deciding whether the proposed injunction would

actually violate the First Amendment. Id. (quoting Catholic

Bishop of Chicago, 440 U.S. at 502). Because one permissible

2

I agree with the majority’s statement that there is “no reason” the analysis from Overstreet should not survive the Supreme Court’s decision in

Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008),

but this does not alter my conclusion that the majority is incorrect to apply

the Overstreet analysis here. 

1478 MCDERMOTT v. AMPERSAND PUBLISHING
interpretation of Section 8(b)(4)(II) avoided those questions

and the risk of infringing the First Amendment, the court

applied the uninfringing interpretation. See id at 1209-10.

Unlike Overstreet, here, the NLRA’s protections of

employees’ rights to “assist labor organizations” and “to

engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” clearly

apply to media employees, because the Supreme Court has

held an agency of the press has no “special immunity” from

application of the NLRA or any general law. Associated Press

v. NLRB, 301 U.S. 103, 132-33 (1937); see 29 U.S.C. § 157

(NLRA Section 7).

Section 8’s declaration of an unfair labor practice when

employers “interfere with, restrain, or coerce employees in the

exercise” of Section 7 rights “by discrimination in regard to

hir[ing] or tenure of employment or any term or condition of

employment to encourage or discourage membership in any

labor organization,” as the ALJ found the News-Press did

here, unambiguously applies. See 29 U.S.C. § 158(a). Therefore, the Overstreet standard should not guide the present outcome, and “the Board’s determination on the merits will be

given considerable deference.” Miller ex rel. NLRB v. Cal.

Pac. Med. Ctr., 19 F.3d 449, 460 (9th Cir. 1994).

Finding the Overstreet standard inapplicable is further buttressed by comparing its facts to this case. In Overstreet, the

Board sought an injunction prohibiting union bannering of

retail stores selling products from firms with which the union

had a labor dispute, pending NLRB resolution of the complaint. Overstreet, 409 F.3d at 1203. The injunction thus had

direct bearing on the union’s ability to continue its speech.

That secondary-boycott situation bears no resemblance to the

facts in this case, an organizing case in which pretextually terminated employees are seeking reinstatement. Indeed, the

News-Press conceded at argument that the terms of the

injunction do not require the paper to change its editorial polMCDERMOTT v. AMPERSAND PUBLISHING 1479
icy, nor give employees the power to direct the editorial policy. Overstreet thus has no application to an injunction which

simply does not implicate the First Amendment risk the

News-Press alleges.

B. First Amendment Concerns

The News-Press argues the NLRA should yield to First

Amendment protections accorded the press in this case

because of a publisher’s total discretion to determine the contents of its newspaper. The majority follows suit, noting “the

employee-initiated union campaign aspired in large part to

compel the publisher of the News-Press to relinquish” editorial control over its free “reporting of the news.” Maj. Op.

1466. The News-Press contends that unlike Associated Press,

where the AP sought a blanket entitlement to discharge the

employee, this case directly concerns the full freedom and liberty of a newspaper to publish the news as it desires and to

control the editing and rewriting of news for publication. Put

another way, the News-Press, and the majority, find distinguishing between an injunction reinstating employees, and an

order dictating what a newspaper must publish, a distinction

without a difference. I disagree.

The ALJ found all eight employees were fired because of

their union activities and the News-Press’s allegations of

biased reporting pretextual.3 As in Associated Press, therefore, this case does not present the question of whether Congress has the power to interdict an employee’s discharge if a

newspaper “believed its policy of impartiality was likely to be

subverted by [an employee’s] continued service.” 301 U.S. at

132. Unlike the order requiring a newspaper to reinstate a columnist and resume publication of his weekly column at issue

in Passaic, 736 F.2d at 1558-59, the injunction the Regional

3These fact-intensive determinations are generally entitled to deference.

See, e.g., Silverman v. J.R.L. Food Corp., 196 F.3d 334, 337-38 (2d Cir.

1999). 

1480 MCDERMOTT v. AMPERSAND PUBLISHING
Director sought here would only have required the NewsPress to rehire reporters, leaving intact all of its policies and

procedures related to article publication and editorial approval

process. On remand after Passaic, an order requiring the

newspaper to restore the columnist to his position and “decide

whether to publish his submissions based upon any factors

other than his union or protected activity” went unchallenged.

Herald News, 276 NLRB 605, 606 (1985).

Indeed, as the district court acknowledged, the injunctions

at issue in Miami Herald Publishing Co. v. Tornillo, 418 U.S.

at 243, and Passaic “sought in some fashion to force publication of specific content by the newspapers at issue, thus actually directing the publishers’ exercise of their editorial

discretion,” whereas the injunction sought in this case “seeks

to prevent Respondent only from disciplining its employees

who engaged in activities aimed to pressure it into limiting its

exercise of its editorial discretion.” McDermott ex rel. NLRB

v. Ampersand Publ’g LLC, 2008 U.S. Dist. LEXIS 94596, at

*28 (C.D. Cal. May 21, 2008). The district court nevertheless

concluded that because “these demands were not mere

requests but were instead backed by public concerted activity

placing economic pressure on [the News-Press] to acquiesce,”

“the sought after injunction amounts to state action limiting

Respondent’s ability to combat pressure placed on it to limit

its exercise of editorial discretion.” Id. at *28-29. 

The News-Press argues along similar lines, claiming it has

a First Amendment right to discharge its employees notwithstanding any provision of the NLRA because of their collective advocacy of a boycott directed, in part, toward forcing the

News-Press to reestablish certain journalistic standards. Citing Newspaper Guild, Local 10 v. NLRB, 636 F.2d 550 (D.C.

Cir. 1980), the district court accepted this argument, noting

the D.C. Circuit required the Board to strike a balance “between an employer’s freedom to manage his business in areas

involving the basic direction of the enterprise and the right of

employees to bargain on subjects which affect the terms and

MCDERMOTT v. AMPERSAND PUBLISHING 1481
conditions of their employment.” Ampersand, 2008 U.S. Dist.

LEXIS 94596, at *31 (quoting Newspaper Guild, 636 F.2d at

562). Citing the inapposite Tornillo opinion, the majority similarly concludes the injunction here would “remov[e] an otherwise available weapon to resist employees’ attempts to seize

control over the newspaper’s content.” Maj. Op. 1467. 

Contrary to these assertions, the Director has not sought to

force the News-Press to capitulate to its employees’ demands.

In fact, unlike in Newspaper Guild, the Director has not even

ordered the News-Press to bargain over these demands in

good faith. Cf. Newspaper Guild, 636 F.2d at 557. The proposed injunction would allow the News-Press to continue to

operate without a “firewall” between the editorial and news

departments if it so chose. It would also leave the News-Press

with complete editorial control, including what kind of opinion pieces, if any, to publish in relation to its disputes with its

employees. The News-Press and the majority are essentially

arguing for a newspaper’s First Amendment right to be free

from its employees’ public criticism of its practices because

their criticism (and call for a boycott) is “coercive.”

4

 The

4As support for this claim, the majority cites the statements of Melinda

Burns (“Burns”), who was wrongfully fired for her union activities, suggesting her view that “a newsroom has to have independence from the editorial side of the paper” demonstrates the First Amendment issues at stake

in this case. Maj. Op. 1466. But, despite the majority’s assertion that my

“approach closes its eyes to what the underlying labor dispute here is

about,” Maj. Op. 1468, clearly I do not presume to suggest Burns can dictate to the News-Press what editorial standards it must employ. The First

Amendment unquestionably protects that determination. Nor do I doubt

that the editorial concern was a subject of the employees’ bargaining. The

NLRA cannot grant employees the power to insist upon conditions on a

newspaper’s content. The statute can, however, provide Burns, and similarly situated employees, the ability to at least discuss those standards in

collective bargaining, free from the Damocles’ sword of retaliatory termination. The News-Press, of course, also remains free to reject such

requests, insisting on its rights to publish its paper as it sees fit. Contrary

to the majority’s assertions, Maj. Op. 1468-71, that right, protected for the

News-Press by the First Amendment, is not implicated on the facts of this

case. 

1482 MCDERMOTT v. AMPERSAND PUBLISHING
News-Press argues it must be free to respond to this “economic coercion” with discharge or other economic weapons

of its own or else it will have no choice but to capitulate.

In concluding “[t]he injunction the Regional Director seeks

here would prevent the News-Press from taking action against

employees,” Maj. Op. 1467, the majority proves too much. A

“company always has the legal right to discipline an

employee in a nondiscriminatory fashion for improper conduct. Further, any company subject to a § 10(j) injunction is

theoretically subjected to the risk of which [the News-Press]

complains.” NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1573

(7th Cir. 1996). 

In addition, employees generally may advocate “a boycott

of the employer’s product, as long as the boycott is tied to a

labor dispute and does not disparage the employer’s product.”

Firestone Tire & Rubber Co., 238 NLRB 1323, 1324 (1978),

enforced, 651 F.2d 1172 (6th Cir. 1980). Consumer boycotts

pressure, but do not compel, targeted employers to capitulate

to employees’ demands, whether those demands relate to traditional compensation matters or to other “terms of employment.” There is no more reason to expect the News-Press

would be forced to agree to reestablish a firewall than to

expect it to be forced to capitulate to employees’ other contract demands. Employees who desire to bargain over policies

related to journalistic integrity should not thereby be stripped

of their Section 7 rights. Even if, as in Newspaper Guild, a

balancing “between an employer’s freedom to manage his

business . . . and the right of employees to bargain” were

required, 636 F.2d at 562, an employer’s desire to be free

from public criticism of its practices is not equivalent to its

First Amendment right to choose what to publish on its pages.

It thus does not outweigh employees’ NLRA rights to protest

or bargain over the conditions of their employment.

Given the limited scope of the injunction and the employees’ clear right to organize, there is no significant risk of a

MCDERMOTT v. AMPERSAND PUBLISHING 1483
First Amendment infringement due to the requested relief,

and, therefore, the criteria for considering the injunction

should have been applied with the typical deference to the

Board. See Miller, 19 F.3d at 460-61.

C. Balancing of Equitable Criteria

By necessity, the granting of injunctive relief requires

adjustment of the parties’ rights without full adjudication of

the facts. Yet here we benefit from the ALJ having created a

substantial factual record to overlay against “the requirements

of equity practice.” Hecht Co. v. Bowles, 321 U.S. 321, 329

(1944). When “determining whether interim relief under 10(j)

is ‘just and proper,’ district courts should consider traditional

equitable criteria . . . through the prism of the underlying purpose of § 10(j), which is to protect the integrity of the collective bargaining process and to preserve the Board’s remedial

power while it processes the charge.” Miller, 19 F.3d at 459-

60. 

In Winter v. Natural Resources Defense Council, Inc., the

Supreme Court clarified the traditional equitable criteria,

explaining a party seeking a preliminary injunction “must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” 129 S. Ct. 365, 374 (2008).5

5

In doing so it rejected our previous standard allowing injunctive relief

on a showing of a “possibility” of irreparable injury. E.g., Natural Res.

Def. Council, Inc. v. Winter, 518 F.3d 658, 677 (9th Cir. 2008). I follow

the majority in assuming without deciding that the Supreme Court’s decision in Winter alters our previous statements in Miller of the showing a

party must make to obtain injunctive relief under section 10(j). I also see

no reason why Winter disturbs our other statements in Miller instructing

courts to consider the traditional equitable criteria against the backdrop of

section 10(j)’s purpose. 

1484 MCDERMOTT v. AMPERSAND PUBLISHING
Rejecting Overstreet’s applicability in this case, I would

find the district court abused its discretion in denying the

injunction. Though the district court was conscientious in its

analysis, finding the Director unlikely to prevail on the merits

was grounded in the erroneous legal premise that employees’

attempts to negotiate aspects of the editorial process strip

them of the NLRA’s protection. With the proper protection

and deference to the Board in place, the ALJ’s findings show

a clear likelihood of success on the merits, and the other equitable factors are met as well.

When concluding Overstreet’s standard of review does not

apply, courts view the Director’s probability of prevailing “in

light of the fact that ultimately, the Board’s determination on

the merits will be given considerable deference.” Miller, 19

F.3d at 460. Here, the ALJ’s extensive factual findings detail

a variety of unfair labor practices orchestrated by the NewsPress and include reasonable findings that key testimony

offered on the News-Press’s behalf was not credible and the

justifications advanced for its actions were in large part pretextual.

Under the facts here there are multiple irreparable injuries

due to the terminations and subsequent rejection of the injunction. “To permit illegal employer conduct to go unaddressed

while the Board’s corrective machinery grinds toward resolution would subvert the underlying purposes of section 10(j)

and allow those who commit unfair labor practices to reap the

benefits of that conduct.” Scott ex rel. NLRB v. Stephen Dunn

& Assocs., 241 F.3d 652, 660 (9th Cir. 2001). Thus, unlawful,

unremedied discharges create adverse impacts on employees’

interests in union organizing, and the union’s ability to bargain irreparably deteriorates as this situation is allowed to

continue. See Pye ex rel. NLRB v. Excel Case Ready, 238 F.3d

69, 74-75 (1st Cir. 2001) (“[T]he discharge of active and open

union supporters . . . risks a serious adverse impact on

employee interest in unionization and can create irreparable

harm to the collective bargaining process.”) (internal quotaMCDERMOTT v. AMPERSAND PUBLISHING 1485
tion marks omitted); Electro-Voice, Inc., 83 F.3d at 1573 (“As

time passes the likelihood of union formation diminishes, and

the likelihood that the employees will be irreparably deprived

of union representation increases.”).

An unlawful discharge also causes the irreparable harm of

removing union supporters from the workplace at the time

when the union is in most need of support. See Electro-Voice,

Inc., 83 F.3d at 1573. Here, the longer the complaint sits with

the Board without action, the weaker the union appears to

remaining employees and the less energy exists in support of

unionization, injuries that are immeasurable and irreparable.

The balance of hardships and the public interest also tip in

favor of “ensur[ing] that an unfair labor practice will not succeed” because “declining to issue the injunction will permit

the allegedly unfair labor practice to reach fruition and

thereby render meaningless the Board’s remedial authority.”

Miller, 19 F.3d at 460.

The majority puts significant emphasis on the Board’s

delay in filing an injunction, citing the passage of time as the

only factor supporting its conclusion that denial of the injunction resulted in no irreparable harm. Maj. Op. 1473. Yet the

majority’s entire discussion of the Board’s delay (and thus its

entire discussion of irreparable harm) cites only one case, and

in that case this court actually rejected the argument the

majority recycles regarding the importance of the Board’s

delay in filing the injunction. 

In Aguayo ex rel. NLRB v. Tomco Carburetor Co., 853

F.2d 744, 750 (9th Cir. 1988), overruled on other grounds by

Miller, 19 F.3d at 455-56, we dismissed an argument made

pursuant to the Fifth Circuit’s decision in Boire v. Pilot

Freight Carriers, Inc., which, like the majority, found Board

delay critical to denying an injunction, see 515 F.2d 1185,

1193 (5th Cir. 1975). We noted the delay argument was “not

persuasive,” stating “[d]elay by itself is not a determinative

1486 MCDERMOTT v. AMPERSAND PUBLISHING
factor in whether the grant of interim relief is just and proper.” Aguayo, 853 F.2d at 750. Yet the majority references

Aguayo and then proceeds to reason from the premise Aguayo

rejected, claiming the Board’s delay is so important here that

it constitutes the entire irreparable harm analysis.

Perhaps the majority cites no cases for this proposition

because we have specifically rejected the reasoning underlying an approach attaching such importance to Board delay.

We have previously noted that the view Boire and the majority advance “actually hinders rather than protects the collective bargaining process” because “ ‘the underlying purposes

of section 10(j) are to protect the integrity of the collective

bargaining process and to preserve the [Board]’s remedial

power while the Board resolves the unfair labor practice

charge.’ ” Scott, 241 F.3d at 660 (quoting Miller, 19 F.3d at

452).

Other circuits, though recognizing the troublesome consequences of the Board’s delay in filing an injunction, have

agreed, distinguishing Boire and declining to attach dispositive weight to Board delay. See, e.g., Muffley v. Spartan Mining Co., 570 F.3d 534, 544-45 (4th Cir. 2009) (noting the

troubling nature of the Board’s 18-month delay in seeking an

injunction, but finding the balance of harms, the likelihood of

success on the merits, and the “strong public policy” favoring

injunctive relief, supported an injunction); see also Levine v.

C & W Mining Co., 610 F.2d 432, 437 (6th Cir. 1979) (noting

approaches contrary to Boire are “more in accord with the

purposes of the Act”).6

6Significant delay in the 10(j) process is not unique to this case and is,

in fact, a common criticism leveled at the Board. See, e.g., Catherine L.

Fisk & Deborah C. Malamud, The NLRB in Administrative Law Exile:

Problems With its Structure and Function and Suggestions for Reform, 58

Duke L.J. 2013, 2028 (2009) (“One criticism frequently leveled at the

NLRA is that the relative mildness of the remedies (reinstatement plus

back pay) and the slowness of the administrative process (it can take years

MCDERMOTT v. AMPERSAND PUBLISHING 1487
Though these cases show no excuse necessary, two related

facts serve to justify the Board’s delay in this case. Generally,

the Board argues it was waiting for the ALJ to develop the

administrative record to prevent the district court and the ALJ

from simultaneous review. This efficiency justification could

in some instances be sufficient to justify delay. See Hirsch v.

Dorsey Trailers, Inc., 147 F.3d 243, 248-49 (3d Cir. 1998). In

addition, the Supreme Court has recently granted certiorari in

a case to resolve whether adjudicative decisions made by only

two of the NLRB’s five members are valid. See New Process

Steel, L.P. v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert.

granted, 77 U.S.L.W. 3670 (U.S. Nov. 2, 2009) (No. 08-

1457). Though the question in New Process Steel does not

implicate the Board’s authority here in its prosecutorial role,

see Muffley, 570 F.3d at 540, the uncertain legal status of the

NLRB, as the Supreme Court has recognized, provides further, reasonable justification for delays in decision making.

This justification is particularly salient because, here, the

delay in filing the section 10(j) injunction, after the ALJ’s

decision, occurred precisely when the cases questioning the

Board’s ability to act without a quorum were moving through

the NLRB and subsequently the courts of appeal. See, e.g.,

Laurel Baye Healthcare, LLC, 352 NLRB 179 (2008)

(decided one week before injunction was filed in present

case).

Despite the passage of time, the union’s negotiations for its

initial collective bargaining agreement with the News-Press

are ongoing and the union’s position has been weakened by

the absence of the key union-supporting employees who were

discharged and by the remaining employees’ fears stemming

from the filing of a complaint by an aggrieved employee to the issuance

of an enforceable order) creates a huge incentive for employers to deliberately violate the statute knowing that they will reap the benefit of illegal

conduct for a long time, if not permanently in the case of a successful

defeat of an organizing campaign.”). 

1488 MCDERMOTT v. AMPERSAND PUBLISHING
from those discharges. Continued delay may cause the discharged employees to find other work, denying the union of

the benefits of their active support and accumulated experience, and the passage of time thus does not obviate the need

for injunctive relief. Nor does this subversion of the NLRA

benefit the public interest.

The majority also glosses over a significant district court

error, conceding they “are not entirely confident that the district court gave appropriate weight to the rights of the discharged employees.” Maj. Op. at 1474. I agree. The district

court erred in its acceptance of the News Press’s alleged harm

relating to the replacement workers it has hired because “the

predominant focus under section 10(j) is the harm to the bargaining process,” and the “rights of the employees who were

discriminatorily discharged are superior to the rights of those

whom the employer hired to take their places.” Aguayo, 853

F.2d at 750.

In emphasizing the Board’s delay in seeking the injunction,

rehashing its First Amendment arguments, and explaining

away the district court’s misunderstanding of important precedent, Maj. Op. 1473-75, the majority neglects discussion of

the irreparable harms that exist regardless of any delay: rights

of wrongfully discharged employees, id. at 750, the firings’

damage to the organizing drive, Scott, 241 F.3d at 660, and

potential weakening of the Board’s remedial authority, id., all

of which are also relevant to the balance of the equities and

the public interest.

Finally, in evaluating the fired employees’ petition, the district court assumed the correctness of the ALJ’s thorough

findings, reasoning that it “lack[ed] a basis to conclude” that

“animus toward the Union and its demands was not the

motive for the [News-Press’s] actions.” The majority also

finds no basis, because one does not exist, for questioning

these serious determinations that employees seeking to form

a union were fired only after union organizing began.

MCDERMOTT v. AMPERSAND PUBLISHING 1489
In short, the majority applied the incorrect legal standard,

leading it to the incorrect result. “Instead of offering a credible explanation for its actions, the [News-Press] relied on a

pretextual justification and contended that the First Amendment served as a shield that prevented the Board from challenging the decision and inquiring into its motives.” Passaic,

736 F.2d at 1553. Because the majority begins by accepting

the notion that who a newspaper employs necessarily determines its content, it finds the News-Press exempt from the

labor laws other employers must follow. Instead, I would recognize the scope of the injunction is limited to reinstatement

only, and under the injunction the News-Press would still be

able to publish its paper as it sees fit. In failing to make this

distinction, the district court applied the incorrect standard

and analysis, abusing its discretion. 

I would reverse and direct the district court to issue and

enforce the injunction sought by the NLRB.

1490 MCDERMOTT v. AMPERSAND PUBLISHING