PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MEDIA GENERAL OPERATIONS,
INCORPORATED, d/b/a The Tampa
Tribune,
Petitioner,
v. No. 08-1153
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v.
No. 08-1197
MEDIA GENERAL OPERATIONS,
INCORPORATED, d/b/a The Tampa
Tribune,
Respondent.
On Petition for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board.
(12-CA-24770)
Argued: December 4, 2008
Decided: March 13, 2009
2 MEDIA GENERAL v. NLRB
Before KING and DUNCAN, Circuit Judges, and Rebecca
Beach SMITH, United States District Judge for the Eastern
District of Virginia, sitting by designation.
Petition for review granted; cross-petition for enforcement
denied by published opinion. Judge Duncan wrote the major-
ity opinion, in which Judge Smith concurred. Judge King
wrote a dissenting opinion.
COUNSEL
ARGUED: Glenn Edward Plosa, ZINSER LAW FIRM, P.C.,
Nashville, Tennessee, for Media General Operations, Incorpo-
rated, d/b/a The Tampa Tribune. Fred B. Jacob, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the
National Labor Relations Board. ON BRIEF: L. Michael
Zinser, ZINSER LAW FIRM, P.C., Nashville, Tennessee, for
Media General Operations, Incorporated, d/b/a The Tampa
Tribune. Ronald Meisburg, General Counsel, John E. Higgins,
Jr., Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, Jill A. Griffin, Supervisory Attorney, William M.
Bernstein, Senior Attorney, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for the National Labor
Relations Board.
OPINION
DUNCAN, Circuit Judge:
The Tampa Tribune ("the Tribune") appeals from a judg-
ment of the National Labor Relations Board ("the Board")
that it violated the National Labor Relations Act ("the Act")
MEDIA GENERAL v. NLRB 3
when it fired employee Gregg McMillen for making deroga-
tory remarks about the Tribune’s Company Vice President.
The administrative law judge ("ALJ") found that McMillen’s
dismissal was lawful because his statement was so profane
and offensive that it was not protected by the Act. On review,
the Board reversed the ALJ’s decision. The Tribune peti-
tioned this court for review; and the NLRB brought a cross-
petition for enforcement of the Board’s decision. We find that
the Board erred as a matter of law concluding that the law
protects McMillen’s use of profanity regarding his employer,
which was directed to his supervisors, during work hours and
in the work place, in a conversation McMillen initiated
regarding an undisputedly accurate and legal letter he had
admittedly never read, and the setting of which was physically
and temporally removed from the site of the ongoing collec-
tive bargaining negotiations. We therefore reverse its decision
and reinstate the decision of the ALJ.
I.
A.
The National Labor Relations Act, 29 U.S.C. §§ 151-69,
ensures that employees are not discriminated against for
engaging in collective action in the workplace. Its provisions
protect the rights of employees to organize and engage in col-
lective bargaining and associated activities. 29 U.S.C. § 157.
Its protections prevent employers from retaliating against
their workers for undertaking "concerted activities" and pro-
vide a process for enforcement of the rights guaranteed by the
Act. 29 U.S.C. §§ 157, 160.
After Gregg McMillen was fired from his job as a journey-
man pressman at the Tribune, he individually filed charges
with the General Counsel of the Board, claiming that his dis-
missal contravened the Act’s protections. The charging state-
ment issued by the General Counsel alleged two violations of
the Act: (1) a violation of section 8(a)(1) for not allowing
4 MEDIA GENERAL v. NLRB
McMillen to be accompanied by a union representative at his
disciplinary meeting, 29 U.S.C. § 158(a)(1); and (2) a viola-
tion of sections 8(a)(1) and 8(a)(3) for terminating McMillen
as a result of protected concerted activities, 29 U.S.C.
§ 158(a)(1), (3).
The facts of this case as found by ALJ are not disputed, and
contrary to the dissent’s characterization, we take them as
true. Gregg McMillen was a pressman for The Tampa Tri-
bune, a daily newspaper published by Media General Opera-
tions, Inc. d/b/a The Tampa Tribune ("the Tribune").1 On
October 31, 2004, the contract between the Tribune and the
Graphic Communications Conference of the International
Brotherhood of Teamsters, Local 180 ("the Union") expired.
McMillen belonged to the Union, which represented the
pressroom employees of the Tribune, and was covered by the
expired contract.
Following the expiration of the previous agreement, the
Tribune and the Union began the process of renegotiating
their contract. The negotiations were rancorous and were
ongoing at the time of the events that led to McMillen’s dis-
missal in November 2005.
During these negotiations, Bill Barker, Company Vice
President of the Tribune, sent a series of letters to the press-
room workers describing what was occurring from his per-
spective. Significantly for purposes of our decision, there is
no dispute in this case that the letters were legal and accurate.
However, many of the pressmen took exception to them, and
McMillen was among roughly 25 signatories to a letter sent
to Barker on November 4, 2005 that protested Barker’s letter-
writing and characterization of the negotiations. On Novem-
ber 9, Barker wrote to the employees in response to their letter
1
Hereinafter references to "the Tribune" will be to the publisher unless
otherwise noted.
MEDIA GENERAL v. NLRB 5
of November 4, again expressing his view that the Union was
the major source of delay in the process.
On the night of November 10, 2005, McMillen arrived for
his third-shift job at the press. During that shift, he went into
the office that is located in the pressroom. Two supervisors—
Glenn Lerro, the pressroom foreman, and Joel Bridges, the
assistant foreman— were the only other people in the office.
While there, McMillen stated in response to a question about
how he was doing that he was "stressed out" as a result of the
latest letter from Barker. Lerro asked if McMillen had seen
the latest letter, and McMillen replied that he had not. Lerro
informed him that it was likely a response to the employees’
letter of November 4. McMillen then said: "I hope that fuck-
ing idiot [Barker] doesn’t send me another letter. I’m pretty
stressed, and if there is another letter you might not see me.
I might be out on stress." J.A. at 372.
Lerro and Bridges made no response to the statement at the
time, but the following morning Lerro did send an email to
George Kerr, the pressroom manager, informing him of
McMillen’s statement. Barker and George Stewart, the pro-
duction director, were copied on the email. Lerro also asked
Bridges to send Kerr an email relating his version of the
events, which Bridges did.
McMillen failed to show up for his next shift, which was
scheduled on November 11. He claimed this absence was due
to the sleeping pill he was forced to take to calm down after
reading Barker’s letter following his arrival home on Novem-
ber 10. As a result of the missed shift, McMillen was
informed that he would be suspended from two shifts without
pay. When he returned to work on November 13, he signed
the resulting disciplinary report and added an editorial com-
ment to the effect that it was Barker’s "lieing [sic] discrimina-
tion, harassing and threatening letters" which caused him to
miss his shift. J.A. at 373. At that time, he also told Lerro he
6 MEDIA GENERAL v. NLRB
was sorry if any of his remarks on November 10 were inap-
propriate, reiterating that that Barker "gets to [him]." Id.
Meanwhile, Kerr, George, and Barker met to discuss the
report of the incident that they had received from Lerro. As
a result of McMillen’s statement, the Tribune’s management
decided to fire him for a violation of Pressroom Office Rule
9.2 When he arrived at the Tribune on November 16, McMil-
len was escorted into Stewart’s office to meet with Stewart,
Kerr, and Rick Serra, the Tribune’s Human Resources Man-
ager. Donald Hale, another Tribune pressman, attempted to
accompany McMillen into the office but was told that the
meeting was not for the purpose of an investigation and so
McMillen had no right to union representation. Kerr stated
that he had been informed that McMillen had referred to
Barker in derogatory terms; McMillen interrupted the com-
ment to acknowledge having made the statement.3 Kerr then
informed McMillen that he was fired, and McMillen was sub-
sequently escorted from the building.
B.
The case was first heard by ALJ Joel Biblowitz. Following
a full hearing and fact-finding, the ALJ dismissed both
charges against the Tribune. The ALJ concluded that McMil-
2
The Pressroom Office Rules make violation of any rule an offense pun-
ishable by "disciplinary actions, up to, and including termination." Rule 9
bars, among other things, the use of "[t]hreatening, abusive, or harassing
language . . . disorderly conduct . . . and all disturbances interfering with
employees at work anywhere in the building." J.A. at 373.
3
The ALJ found that McMillen made this admission in an unprompted
response to a statement by Kerr and not in response to a question. Because
the decision had already been made to terminate McMillen before the
meeting began and because Kerr did not question McMillen about his
statement, the ALJ concluded and the Board agreed that McMillen had no
right to union representation at the meeting and that the Tribune therefore
did not violate section 8(a)(1) of the Act with respect to the denial of rep-
resentation. J.A. at 379-80, 394. This holding is not challenged on appeal.
MEDIA GENERAL v. NLRB 7
len had no entitlement to representation and therefore that
there was no violation of his right to representation. In analyz-
ing whether McMillen’s dismissal was wrongful, the ALJ
concluded that McMillen was engaged in concerted activity at
the time of his statement but that his statement was so "pro-
fane, offensive and personally denigrating" as to be unpro-
tected by the Act. J.A. at 383.
The General Counsel entered exceptions to the ALJ’s deci-
sion. On appeal, the Board upheld the ALJ’s decision as to the
first charge but reversed the ruling on the second, finding that
McMillen’s dismissal violated the Act. J.A. at 397. The Tri-
bune filed a petition for review with the Fourth Circuit and
the Board brought a cross-appeal for enforcement of the
Board’s decision.
II.
The Tribune appeals the decision of the Board through
Media General Inc., the parent company of The Tampa Tri-
bune. Media General is incorporated in the Commonwealth of
Virginia and transacts business in this circuit. We therefore
have jurisdiction over the petition for review and cross-
petition for enforcement pursuant to §§ 29 U.S.C. 160(e) and
(f).
On appeal, the Tribune contends that the Board impermiss-
ibly overturned credibility determinations of the ALJ; that
McMillen was not engaged in a concerted activity protected
by the Act when he made the derogatory statement about
Barker; and that even if the activity in question were pro-
tected, the Board misapplied its precedent in finding that
McMillen’s statement was not so egregious as to lose the
Act’s protection. We address each of these arguments in turn
below.
Legal determinations by the Board must be upheld by a
reviewing court if they are "rational and consistent with the
8 MEDIA GENERAL v. NLRB
Act." Media General Operations, Inc. v. NLRB, 394 F.3d 207,
211 (4th Cir. 2007). However, the reviewing court has a
responsibility to correct any errors of law that are made by the
Board in reaching its conclusions. Id. Mixed questions of law
and fact are reviewed under a substantial evidence standard
"where the Board’s legal interpretations are otherwise valid."
NLRB v. Air Contact Transp. Inc., 403 F.3d 206, 210 (4th Cir
2005).
A.
The Tribune argues that the Board impermissibly over-
turned credibility findings of the ALJ in reaching its decision.
Specifically, the Tribune contends that the ALJ’s finding that
McMillen’s derogatory statement about Barker was the reason
for his firing is a credibility determination that should be insu-
lated from the Board on review. Appellant’s Br. at 41-42 (cit-
ing Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951),
for the proposition that the Board owes considerable defer-
ence to the ALJ on findings of fact because the latter has
"heard the evidence and seen the witnesses"). The Tribune’s
argument on this point is misguided.
The determination of the nature of the outburst is not prop-
erly a "credibility determination" made by the ALJ but a legal
conclusion based upon the Board’s inferences from facts in
the record. The ALJ made clear in his opinion the points at
which he was making credibility determinations. See, e.g.,
J.A. at 379. But his analysis of the application of the law to
the fact he found does not qualify as a credibility determina-
tion. Therefore, the ALJ’s determination is not entitled to any
special deference by the Board. The Board was not con-
strained by the ALJ’s findings in determining whether
McMillen’s conduct had and retained the protection of the
Act and was free to find, subject to review by this court, that
it did.
MEDIA GENERAL v. NLRB 9
B.
The Tribune also contends that McMillen was not engaged
in protected concerted activity when he made his derogatory
statement about Barker. The ALJ found and the Board
affirmed that McMillen’s conduct was concerted activity
within the meaning of the Act because "it was part of an
ongoing collective dialogue between Barker and the unit
employees about the substance and process of the contract
negotiations." J.A. at 395. Specifically pointing to the letters
that were exchanged between Barker and the pressroom
employees, the Board found that McMillen’s derogatory state-
ment was "a logical outgrowth of the prior collective and con-
certed activity." Id. (internal quotation marks omitted) (citing
Every Woman’s Place, 282 N.L.R.B. 413 (1986)).
While we do not find that this conclusion is wrong as a
matter of law, we do note that the conduct in question skirts
the outer bounds of that which can be considered concerted
activity under the Act’s auspices. McMillen’s derogatory
comment was part of a conversation he individually initiated;
it was not temporally associated with the actual negotiations
in question or the actions that prompted it; and it could not
have been directly responsive to the Tribune’s negotiating
positions, since McMillen prefaced the remark by stating that
he had not yet read Barker’s letter. Cf. Stanford N.Y., LLC,
344 N.L.R.B. 558, 559 (2005) (spontaneous outburst in direct
response to discussion about union activities); Trus Joist Mac-
millan, 341 N.L.R.B. 369, 369-70 (2004) (employee
requested meeting specifically to discuss an illegal firing).
Nevertheless, we decline in this case to overturn the finding
that McMillen’s conversation concerning Barker and Barker’s
letters was entitled to the Act’s protection in the first instance.
This does not, however, settle the inquiry about whether
McMillen retained the Act’s protection when he launched an
ad hominem attack against his supervisor.
10 MEDIA GENERAL v. NLRB
C.
Even concerted actions that are assumed to be protected by
the Act may forfeit such protection if they are "egregious or
flagrant." Care Initiatives, Inc., 321 N.L.R.B. 144, 151 (1996)
(quoting Coors Container Co. v. NLRB, 628 F.2d 1283, 1288
(10th Cir. 1980)). The Tribune contends, and the ALJ found,
that even if McMillen’s statement was made in the context of
concerted activity, he forfeited the protection of the Act
because he engaged in "vulgar, profane, and obscene lan-
guage directed at . . . [an] employer," Care Initiatives, 321
N.L.R.B. at 151, in responding to his employer’s legal acts.
We agree.
The test for whether an employee has forfeited the protec-
tion of the Act as a result of the nature of his conduct was set
forth by the Board in its decision in Atlantic Steel Co., 245
N.L.R.B. 814 (1979). There, the Board held that a reviewing
body must balance four factors to determine whether the
Act’s protection applies: "(1) the place of the discussion; (2)
the subject matter of the discussion; (3) the nature of the
employee’s outburst; and (4) whether the outburst was, in any
way, provoked by an employer’s unfair labor practice." Id. at
816. If the balance is such that the conduct crosses the line
from "protected activity . . . [to] opprobrious conduct," the
worker loses the protection of the Act. Id.
In the instant case, the ALJ found and the Board agreed that
the first two factors weighed in favor of McMillen retaining
the Act’s protections. J.A. at 396. The discussion during
which the derogatory remark was made took place away from
the pressroom floor in an office that was used by pressroom
supervisors and thus was at least semi-private.4 In addition,
4
In balancing the Atlantic Steel factors, the Board has in general found
that remarks made in private are less disruptive to workplace discipline
than those that occur in front of fellow employees. See, e.g., Stanford N.Y.,
344 N.L.R.B. at 558 (finding that "[t]he relatively secluded room and . . .
MEDIA GENERAL v. NLRB 11
McMillen’s comment occurred in the context of a discussion
of Barker’s letters, and those letters dealt with the ongoing
contract negotiations between the Tribune and the Union. The
Board also agreed with the ALJ that the fourth factor militated
against extending the protection of the Act, since McMillen
never claimed that he was responding to an unfair labor prac-
tice. Instead, his outburst was in response to a series of admit-
tedly legal and truthful letters written by Barker. J.A. at 383,
396.
Where the two adjudicators parted ways was on the signifi-
cance of the third factor. The ALJ determined that the nature
of the outburst was "so egregious" that it removed McMil-
len’s statement from the Act’s protection. J.A. at 381. The
Board disagreed. Analyzing the record, it found that the
nature of the remark was only moderately prejudicial to
McMillen’s retention of the Act’s protection. The Board
based this determination on the fact that the remark was not
made directly to Barker, that it was an isolated statement for
which McMillen later apologized, and that it was neither a
direct challenge to Barker’s authority nor did it undermine
employee discipline. J.A. at 396. Because of this different
weighting of the third factor, the Board overturned the ALJ’s
conclusion and found that on the balance of the factors
McMillen was entitled to the protection of the Act. J.A. at
396-97.
[the employee’s] efforts to maintain the privacy of the conversation
weighs in favor of [the Act’s] protection"). We note, however, that when
a discussion is instigated for the express purpose of making vulgar
remarks, the privacy of the location may factor into the balance differ-
ently. Compare id., with Trus Joist Macmillan, 341 N.L.R.B. at 370 (not-
ing that while "[i]n one respect the [private] locus of . . . [the] outburst was
one that would have a less disruptive effect than it would have if it had
occurred on the plant floor[,] . . . . in another respect, the locus accentuated
and exacerbated the insubordinate nature of . . . [the employee’s] offensive
outbursts" because the employee’s purpose in requesting a meeting was to
"embarrass" his supervisor in front of management).
12 MEDIA GENERAL v. NLRB
We disagree. The Board overreached as a matter of law in
finding that the conduct in question was not so egregious as
to forfeit the protection of the Act. The dissent accuses us of
engaging in de novo fact-finding to arrive at this conclusion.
See infra at 16-17. It is, however, tellingly unable to point to
a single instance in which such fact-finding occurs despite
progressively more expansive rhetoric. It does not and cannot
dispute, for instance, that McMillen had never read Barker’s
November 9 letter or that McMillen’s comment concerning
Barker was made in a meeting he initiated during an ordinary
shift and not physically or temporally connected to the site of
the ongoing labor negotiations.5 The dissent’s repeated (and
heated) mischaracterization of our opinion attempts to mask
the fact that what it actually disputes is our interpretation of
the facts and the legal conclusions of the Board. Our opinion
today finds that the Board erred as a matter of law—which is
precisely the sort of review we, as a circuit court, are required
to conduct.
The lack of concurrence between Barker’s lawful letter and
McMillen’s comment particularly disfavors protection. This
was not a spontaneous outburst in response to an illegal threat
but an ad hominem attack made in the context of a discussion
McMillen initiated with two supervisors. It was a response to
an undisputedly legal letter issued in exercise of the compa-
ny’s rights. In addition, McMillen had not even read the letter
in question, which further divorces his derogatory remark
from the context of the ongoing labor dispute and thus makes
the remark of a nature less eligible for protection. See Trus
Joist Macmillan, 341 N.L.R.B. at 371 (no protection for "of-
fensive outburst [that] was not a spontaneous or reflexive
reaction"). "[I]nsulting, obscene personal attacks by an
employee against a supervisor need not be tolerated," even
5
We note, in passing, that in its recitation of the "facts" that we "find,"
the dissent also makes the same analytical mistake of which it accuses us:
namely, it conflates facts concerning whether or not an individual is
engaged in concerted activity with those concerning whether or not a par-
ticular statement maintains the protection of the Act.
MEDIA GENERAL v. NLRB 13
when they occur during otherwise protected activity. Care
Initiatives, 321 N.L.R.B. at 151 (internal punctuation omitted)
(quoting Caterpillar Tractor Co., 276 N.L.R.B. 1323, 1326
(1985).
It is also of particular significance, as we have noted, that
McMillen made his derogatory remark in response to a series
of lawful letters sent by his employer. Thus, the fourth factor
of the Atlantic Steel test weighs more than slightly against
extending the Act’s protection. See J.A. at 396. The lawful-
ness of the employer’s actions also distinguishes this case
from others in which the Board has extended much greater
latitude to employees who are reacting to patently unlawful
actions by their employers. See Care Initiatives, 321 N.L.R.B.
at 152 ("[A]n employer may not rely on employee conduct
that it has unlawfully provoked as a basis for disciplining an
employee." (quoting NLRB v. Sw. Bell Tel. Co., 694 F.2d 974,
978 (5th Cir. 1982))); see also Stanford N.Y., 344 N.L.R.B. at
559 (brief profanity was protected where it was a "direct and
temporally immediate response" to unlawful threats by a
supervisor). Compare Severance Tool Indus., Inc., 301
N.L.R.B. 1166, 1170 (1991) (holding that, notwithstanding
his "disrespectful, rude, and defiant demeanor and the use of
a vulgar word," an employee was not denied the protection of
the Act where such actions were a direct response to threats
made against unionized employees by the supervisor to whom
the disrespect was shown), with Fibracan Corp., 259
N.L.R.B. 161, 161 (1981) (upholding the dismissal of a
worker for "repeated and blatant use of profanity" toward her
supervisor where it was used in response to an inquiry about
prior profanity, not in response to the employer’s illegal sus-
pension of workers following a lawful walkout).
The Board has "expressly disavowed any rule whereby oth-
erwise protected activity ‘would shield any obscene insubor-
dination short of physical violence’" from legal disciplinary
action. Felix Indus. v. NLRB, 251 F.3d 1051, 1055 (D.C. Cir.
2001) (quoting Atlantic Steel, 245 N.L.R.B. at 817). The bal-
14 MEDIA GENERAL v. NLRB
ancing test set forth by the Board in Atlantic Steel recognizes
that "in the heat of discussion" employees may use strong lan-
guage that would be wholly inappropriate in other contexts
where there is greater leisure for reflection. 245 N.L.R.B. at
816. The Act’s protections are not limitless, however, and
where they do not reach, employers cannot be compelled to
tolerate language or behavior that undermines workplace dis-
cipline. Trus Joist Macmillan, 341 N.L.R.B. at 371
("Employers and employees have a shared interest in main-
taining order in the workplace, an order that is made possible
by maintaining a certain level of decorum."); cf. Felix Indus.,
251 F.3d at 1054-55 (explaining that words alone can be suf-
ficiently violative of these concerns so as to lose the protec-
tion of the Act). It was not a remark made in the heat of
negotiation—or even in direct response to Barker’s legal com-
munications, for McMillen had not even read the latest letter.
We do not disparage the importance of the protections pro-
vided for employee speech by the Act. But in this case,
McMillen’s opprobrious ad hominem attack on a supervisor
made at a point temporally remove from and concerned only
with lawful behavior by the employer falls outside the zone
of protection.
III.
Because of the inexplicably hyperbolic tenor of the dissent,
we think it useful to reiterate the confines of our decision.
Characterized accurately, it is far from the ukase the dissent
apparently believes it to be.
We do not, for instance, say, as the dissent suggests, that
employee conduct is protected only at the physical site of
labor negotiations. Nor do we define the parameters of an
employee’s protected response to illegal conduct by his or her
employer. Those cases are simply not before us.
Rather, we base our decision in this case on the totality of
the undisputed facts as found by the ALJ. On that basis, we
MEDIA GENERAL v. NLRB 15
hold that there is no protection for McMillen’s profane
remark regarding his employer, which was directed to his
supervisors, during work hours and in the work place,
occurred in a conversation McMillen himself initiated regard-
ing an accurate and legal letter he had never read, and the set-
ting of which was physically and temporally removed from
the site of ongoing collective bargaining negotiations.
The Board did not, in this case, merely apply the law as it
existed. Rather, it expanded the Atlantic Steel factors to essen-
tially create a buffer around employee conduct that would
travel with the employee wherever he goes and for as long as
some form of collective bargaining can be said to be taking
place. That ruling would significantly expand the parameters
of our extant law, pushing its borders beyond the language of
the Act. The principles of Atlantic Steel remain valid and pro-
vide important protections for employees. In this case, how-
ever, McMillen’s action in response to the legal expression of
his employer simply is of such a nature that it forfeits those
protections.
IV.
For the reasons set forth above, we reach the conclusion
that the Board erred as a matter of law in finding McMillen’s
conduct protected by the Act. We therefore reverse the judg-
ment of the Board and reinstate the opinion of ALJ Biblowitz.
As a result, we deny the cross-petition for enforcement of the
Board’s decision.
PETITION FOR REVIEW GRANTED;
CROSS-PETITION FOR ENFORCEMENT DENIED
KING, Circuit Judge, dissenting:
The panel majority has today overruled the Board and
denied legal protection to an employee’s one-time use of pro-
fane language concerning a supervisor — referring to him as
16 MEDIA GENERAL v. NLRB
a "stupid fucking moron" — in a private setting during intense
labor negotiations. Unfortunately, my colleagues have mis-
construed the facts and failed to accord the Board the consid-
erable deference it is due under the law. See NLRB v. Truck
Drivers Union, 353 U.S. 87, 96 (1957) ("[T]he function of
striking [a] balance [between the conflicting interests of
employers and employees] to effectuate national labor policy
is often a difficult and delicate responsibility which Congress
committed primarily to the [Board], subject to limited judicial
review.").1
In enforcement proceedings such as this, we are always
obliged to defer to the Board "where it has chosen ‘between
two fairly conflicting views, even [if we] would justifiably
have made a different choice had the matter been before [us]
de novo.’" Smithfield Packing Co. v. NLRB, 510 F.3d 507,
515 (4th Cir. 2007) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)). We have recognized that
the Board’s legal rulings are entitled to deference when they
are "rational and consistent" with the Act. NLRB v. Air Con-
tact Transp., Inc., 403 F.3d 206, 210 (4th Cir. 2005). Impor-
tantly, the Board’s findings on factual issues are conclusive if
they are supported by "substantial evidence on the record con-
sidered as a whole." Indus. Turnaround Corp. v. NLRB, 115
F.3d 248, 251 (4th Cir. 1997); see also NLRB v. Southland
Mfg. Co., 201 F.2d 244, 245 (4th Cir. 1952) (recognizing that
Board’s legitimately drawn conclusion in discharge proceed-
ing is "binding upon the courts" because courts "are without
power to find facts or to substitute their judgment for that of
the Board" (internal quotation marks omitted)).
1
Indeed, the Supreme Court has long recognized the considerable defer-
ence we must accord the Board. See, e.g., Auciello Iron Works v. NLRB,
517 U.S. 781, 787-88 (1996) (concluding that reviewing courts must give
"considerable deference" to the Board "by virtue of its charge to develop
national labor policy" (internal quotation marks and citations omitted));
NLRB v. Yeshiva Univ., 444 U.S. 672, 691 (1980) (observing that "we
accord great respect to the expertise of the Board when its conclusions are
. . . consistent with the Act").
MEDIA GENERAL v. NLRB 17
Put simply, the panel majority today has embarked on an
unjustifiable reach — making de novo findings and conclu-
sions in this case — and substituted its judgment for a deci-
sion reserved by law to the Board. I strongly disagree and
therefore dissent.
I.
As an initial matter, the panel majority’s recitation of the
relevant facts fails to capture the appropriate picture of the
labor negotiations underlying this enforcement proceeding.
Thus, the majority fails to place in proper perspective McMil-
len’s one-time reference to Vice President Barker as a "stupid
fucking moron." When the collective bargaining agreement
("CBA") between the Tribune and the Union expired on Octo-
ber 31, 2004, the parties began negotiating on a new labor
contract. Between December 2004 and November 2005,
Barker prepared and distributed a series of letters to the Tri-
bune’s employees, describing the contract negotiations from
the company’s point of view. The contents and tone of those
communications are crucial to assessing the propriety of
McMillen’s single challenged comment, and to deciding
whether the Board’s ruling that he could not legally be termi-
nated is entitled to considerable deference:
• Barker’s first letter, dated December 28, 2004,
asserted that the negotiations could have been
completed in one day at the first bargaining ses-
sion and blamed the lack of an agreement on the
Union representative;
• The second letter, dated June 2, 2005, asserted
that, during the negotiations, the Union represen-
tative had called Barker a "fucking idiot" and had
threatened a strike and boycott. Media Gen.
Operations, Inc., No. 12-CA-24770, slip op. at 2
(N.L.R.B. Feb. 22, 2007) (the "ALJ Decision").
18 MEDIA GENERAL v. NLRB
Barker then stated that it appeared the parties
would be negotiating for a long time;
• The third letter, dated September 1, 2005, alleged
"unprofessional behavior" by the Union during
the June meeting, and spoke of "consequences
that [the employees] might face as a result of this
behavior." ALJ Decision 2;
• The fourth letter, dated September 30, 2005,
referred to labor negotiations on September 26
and 27, criticizing the Union’s behavior and
expressing concern about the slow pace of such
negotiations; and
• The fifth letter, dated November 1, 2005, dis-
cussed proposed bargaining dates. Barker criti-
cized the Union representative’s lack of
availability on certain dates and stated, "We at
least hope that, in the future, the Union will
respond more promptly." ALJ Decision 3.
Not unexpectedly, the Union employees reacted angrily to
the letters’ antiunion slant. In response, on November 4, 2005,
twenty-five pressroom Union employees prepared their own
letter, criticizing Barker and the Tribune’s bargaining posture.
The employees’ letter observed that Barker sat in a "nice
clean, quiet office, chat[ting] with people in business suits"
and "go[ing] out to lunch," while the Union employees "work
in noise so loud we need hearing protection, breath [sic]
chemical fumes and ink mist, handle hazardous . . . chemi-
cals" and "are not allowed to leave the premises for lunch."
ALJ Decision 3. The Union employees pointed out that there
was no carpet on the floor nor pictures on the walls, and the
equipment with which the employees work "can strip the flesh
off our bones and mangle us." Id. Finally, they urged Barker
to sign the Union proposal and "help us feel confident our
MEDIA GENERAL v. NLRB 19
management team is as thankful for our efforts as you say and
write." Id.
Barker’s sixth and final letter, dated November 9, 2005,
was written in response to the Union employees’ letter.
Barker wrote that he appreciated the employees’ work and
realized their frustration, and the Tribune would be "as patient
as necessary to get a good [CBA]" and was "going to perse-
vere." ALJ Decision 3-4. Barker asserted that third parties
interfere with "collective as well as individual successes," and
added that, under the Union structure, the Company could not
individually negotiate with employees or a subgroup of
employees "as long as [they had] a third party representative."
Id. at 4.
McMillen was by no means a passive observer to the labor
negotiations regarding a new CBA. He had received Barker’s
first five letters and, on several occasions after receiving and
reading them, spoke with his foremen and voiced dissatisfac-
tion with Barker. He also voiced his dismay in conversations
with fellow employee Donald Hale, who shared a negative
opinion of the letters.2 Not surprisingly, McMillen was one of
the twenty-five Union employees who signed the November
4 letter protesting the Company’s bargaining posture.
On November 10, 2005, while working the evening shift,
McMillen first learned from another employee that Barker
had sent his final November 9 letter. During a lull at work, he
went to the pressroom office and spoke with his shift fore-
men, Lerro and Bridges. When Bridges asked McMillen how
he was doing, McMillen complained about the slow pace of
the labor negotiations and about the letters Barker had been
sending. McMillen said, "I am a little stressed out. I heard we
got another letter from Bill Barker." ALJ Decision 4. McMil-
2
Fellow employee Donald Hale testified that McMillen "got pissed off
getting those letters . . . . He didn’t like them. I got one too, and I didn’t
like mine either." ALJ Decision 4.
20 MEDIA GENERAL v. NLRB
len admitted he had not read Barker’s latest letter, but Lerro
told him it was probably a response to the employees’ letter.
McMillen then opined it was not right for Barker to be "ha-
rassing" and "threatening" the workers by sending letters. Id.
He added, in reference to Barker, "I hope that [stupid] fucking
[moron] doesn’t send me another letter. I’m pretty stressed,
and if there is another letter you might not see me. I might be
out on stress." Id.3 As a result, Lerro sent an email to press-
room manager Kerr the following morning, reporting the inci-
dent and describing McMillen as "very upset and literally
shaking." Id. at 5.
After missing work the next day, McMillen signed a disci-
plinary record documenting his absence. He continued to
voice his displeasure with the labor negotiations by writing on
the record,
If [Barker] would quit writing me lieing discrimina-
tion, harassing and treatening letters through the U.S.
MAIL I wouldn’t have to take sleeping pills to go to
sleep. Thank you Tampa Tribune for not careing
about are well being.
ALJ Decision 5 (misspellings in original). McMillen thereaf-
ter apologized to foreman Lerro if anything he had said on
November 10 was inappropriate, and said "you know Bill gets
to me." Id. at 5. When pressroom manager Kerr spoke to
McMillen on November 16, McMillen, without being asked,
admitted to the outburst and was immediately terminated from
his employment with the Tribune.
This picture — which we are obliged to accept as the rele-
3
Although McMillen testified that he said "fucking idiot," other testi-
mony was that he said "stupid fucking moron." See ALJ Decision 5, 7-8.
The Board found no legally relevant difference between the two versions
of his statement, but used the words "stupid fucking moron" in its deci-
sion.
MEDIA GENERAL v. NLRB 21
vant factual background of this case — shows that, at the time
of McMillen’s comment, intense labor negotiations were
ongoing with the Company, and the Union employees were
upset about the progress of those negotiations and the letters
written by Barker. Assessing McMillen’s comment in that
context, the Board ruled that the Tribune had violated the Act
by terminating McMillen for making the comment, and it
therefore ordered his reinstatement as a Tribune employee.
See Media Gen. Operations, Inc., 351 N.L.R.B. No. 96, slip
op. at 4-5 (Dec. 28, 2007) (the "Board Decision"). That ruling
should not — under controlling precedent — be disturbed by
a reviewing court.
II.
A.
The Supreme Court has long recognized that the Act does
not protect all concerted activities. For example, the Act does
not protect activities that are unlawful, violent, or in breach of
contract. NLRB v. Wash. Aluminum Co., 370 U.S. 9, 17 (1962).4
In the context of labor negotiations, however, employees are
generally entitled to use "accusatory language" that is "sting-
ing and harsh," or even display "a certain amount of salty lan-
guage or defiance." CKS Tool & Eng’g, 332 N.L.R.B. 1578,
1586 (2000); Am. Tel. Co. v. NLRB, 521 F.2d 1159, 1161 (2d
Cir. 1975). Such broad protection is a reflection of the fact of
industrial life that, during labor disputes, "[b]oth labor and
management often speak bluntly and recklessly, embellishing
their respective positions with imprecatory language." Linn v.
United Plant Guard Workers, 383 U.S. 53, 58 (1966); see
4
The Supreme Court has also recognized an exception for "disloyalty
against an employer." NLRB v. Local Union No. 1229, Int’l Bhd. of Elec.
Workers, 346 U.S. 464, 472 (1953). However, McMillen’s comment is a
far reach from the "disloyalty" exhibited in International Brotherhood,
where employees, while still on the payroll, launched a handbill campaign
to undermine the quality of the company’s television broadcasts. Id. at
467-69 & n.4.
22 MEDIA GENERAL v. NLRB
also Consol. Diesel Co. v. NLRB, 263 F.3d 345, 354 (4th Cir.
2001) (recognizing that "[t]here would be nothing left of [the
Act’s] rights if every time employees exercised them in a way
that was somehow offensive to someone," they were subject
to the threat of discipline).
Of course, as the panel majority points out, "the Act’s pro-
tections are not limitless, . . . and where they do not reach,
employers cannot be compelled to tolerate language or behav-
ior that undermines workplace discipline." Ante at 14. The
Board recognized as much in its Atlantic Steel Co. decision,
laying out four factors to be reviewed and balanced to deter-
mine if employee conduct is protected by the Act: "(1) the
place of the discussion; (2) the subject matter of the discus-
sion; (3) the nature of the employee’s outburst; and (4)
whether the outburst was, in any way, provoked by an
employer’s unfair labor practice." 245 N.L.R.B. 814, 816
(1979).5
Here, the Board recognized that McMillen’s comment con-
stituted a "profane and derogatory" statement, but also recog-
nized that "employees are permitted some leeway for
impulsive behavior when engaged in a concerted activity."
Board Decision 2-3. In applying the Atlantic Steel test, the
Board concluded that factors one and two weigh "moderately
to strongly" in favor of protection for McMillen’s comment
under the Act. Id. at 4. The Board explained, on factor one,
5
Atlantic Steel establishes the Board’s seminal test for determining
whether an employee who has engaged in concerted activity can, by
opprobrious conduct, lose the Act’s protection. See, e.g., Beverly Health
and Rehab. Servs., 346 N.L.R.B. 1319, 1322 (2006); Waste Mgmt. of
Ariz., Inc., 345 N.L.R.B. 1339, 1340, 1353-54 (2005) ("Where profane
and other offensive conduct occurs in the context of a protected concerted
activity that potentially removes the conduct from the protection of the
Act, the Atlantic Steel test is used."). At least one other circuit has utilized
the test. See Felix Indus. v. NLRB, 251 F.3d 1051, 1053-54 (D.C. Cir.
2001). We agree with the majority and the Board that Atlantic Steel sup-
plies the proper legal test for this analysis.
MEDIA GENERAL v. NLRB 23
that "the discussion occurred in an office, away from any
other rank-and-file employees, and thus could not have
affected workplace discipline or undermined Barker’s author-
ity." Id. at 3. With respect to factor two, the Board observed
that
the subject matter was McMillen’s criticism of the
[Tribune’s] bargaining tactics and positions, as well
as Barker’s repeatedly sending employees letters
perceived to be one-sided, involving issues that
many pressmen had similarly commented on both
critically and collectively. McMillen’s expression of
his opinion on these topics is a fundamental [right
under the Act].
Id.
Although the Board further concluded that factor three of
Atlantic Steel should weigh against the Act’s protection, the
Board specified that "the nature of McMillen’s remark weighs
only moderately against his retaining the Act’s protection."
Board Decision 3. In so ruling, the Board relied on several
pertinent aspects of this dispute: (1) the McMillen comment
was about Barker, but was not directed at him; (2) there were
no other confrontational aspects, such as physical conduct or
threats; (3) McMillen made his comment only once, promptly
and spontaneously apologized for it, and, on his own initia-
tive, sought to explain himself; (4) the comment was not
insubordinate in regard to production or work assignments;
and (5) the comment did not serve to directly challenge Bark-
er’s managerial authority. See id. Finally, the Board also con-
cluded that Atlantic Steel’s factor four should weigh against
the Act’s protection — but only "slightly" so, even less than
factor three — because McMillen’s comment was "provoked
by Barker’s letters, which were lawful communications." Id.
In making its ultimate assessment of the McMillen com-
ment under the Atlantic Steel test, the Board closed with the
24 MEDIA GENERAL v. NLRB
following analysis and conclusion, which we owe consider-
able deference:
We find that the location and subject matter of
McMillen’s statements, which weigh moderately to
strongly in favor of retaining the Act’s protection,
more than offset the nature of his outburst and the
lack of provocation by unfair labor practices of the
[Tribune], which weigh slightly to moderately
against protection. Thus, . . . we find that McMillen’s
statements on November 10 retained the protection
of the Act despite his profane and derogatory remark
about Barker.
Board Decision 4 (emphasis added).
The Board — the labor experts to whom we must defer —
struck an appropriate balance in this dispute, and its conclu-
sion was both rational and consistent with applicable prece-
dent. Cf., e.g., Felix Indus., Inc., 339 N.L.R.B. 195, 196-97
(2005) (concluding that although "nature of [employee’s] out-
burst must be given considerable weight towards losing the
Act’s protection, this one factor is insufficient to overcome
the other [two] factors weighing against" loss of such protec-
tion, i.e., that outburst occurred during discussion of employ-
ee’s CBA rights and in response to employer’s provocative
and hostile remarks about employee’s protected activity).
Indeed, McMillen’s comment is readily distinguishable from
those more egregious cases where an employee might lose the
protection of the Act. For example, the Board’s precedent
shows that an employee should only lose the Act’s protection
in serious situations, such as threatening in-your-face confron-
tations, or occurrences in working areas with other employees
present, thereby disrupting the work environment. See Waste
Mgmt. of Ariz., 345 N.L.R.B. 1339, 1340, 1353-54 (2005)
(finding no protection under Act, even though discussion con-
cerned possible unfair wage alterations, where employee
engaged in unprovoked tirade, cursed repeatedly and loudly
MEDIA GENERAL v. NLRB 25
before witnesses, refused supervisor’s request to move discus-
sion into office, and made threats toward supervisor); Daim-
lerChrysler Corp., 344 N.L.R.B. 1324, 1328-30 (2005)
(finding no protection, though discussion concerned schedul-
ing of grievance meeting, where employee cursed repeatedly
in front of many other employees, called supervisor "asshole"
to his face, physically approached supervisor in "intimidating"
manner, and was not provoked by any unlawful conduct on
part of employer); N. Am. Refractories Co., 331 N.L.R.B.
1640, 1642-43 (2000) (finding no protection, though
employee was engaged in protected activity, where employee
angrily approached supervisor and called him "stupid mother
fucker" in front of ten other employees).
B.
Notwithstanding the deference that we are mandated to
afford the Board, the panel majority "find[s] that the Board
erred as a matter of law" in concluding that the Act protects
McMillen’s comment, "which was directed to his supervisors,
during work hours and in the work place, in a conversation
McMillen initiated regarding an undisputedly accurate and
legal letter he had admittedly never read," and which was
made in a "setting . . . physically and temporally removed
from the site of the ongoing collective bargaining negotia-
tions." Ante at 3. In so ruling, the majority improperly substi-
tutes its judgment for that of the Board on the assessment and
balancing of at least three of the four Atlantic Steel factors,
and it disregards facts relied on by the Board in favor of its
own de novo findings.6
6
The panel majority also seems to undertake an indirect challenge to the
Board’s determination that McMillen was, on the occasion of his com-
ment, engaged in concerted activity. See Board Decision 2. Although the
majority "do[es] not find that [the Board’s concerted activity] conclusion
is wrong as a matter of law," it admonishes that "the conduct in question
skirts the outer bounds of that which can be considered concerted activity
under the Act’s auspices." Ante at 9. Notably, the facts the majority cites
26 MEDIA GENERAL v. NLRB
1.
Even accepting the panel majority’s version of the facts, its
conclusion that the Board misapplied the Atlantic Steel test
cannot withstand the slightest scrutiny. First of all, the major-
ity explicitly rejects the Board’s assessment of Atlantic Steel’s
factor four — whether McMillen’s comment was, in any way,
provoked by the Tribune’s unfair labor practice — which the
Board deemed to weigh against the Act’s protection (albeit
only "slightly" so), because McMillen’s comment was "pro-
voked by Barker’s letters, which were lawful communica-
tions." Board Decision 3. The majority concludes that,
because "McMillen made his derogatory remark in response
to a series of lawful letters sent by his employer," the Board
should have weighed factor four "more than slightly against
extending the Act’s protection." Ante at 13. The majority cites
no apposite authority, however, for its conclusion that
employee conduct in response to legal employer activity must
weigh "more than slightly" against protection. Rather, the
majority invokes inapposite Board decisions weighing factor
four in favor of the Act’s protection because the employee
conduct in question was provoked by illegal employer activ-
ity. Significantly, the majority ignores precedent reflecting
that, even where the employee responded to legal employer
activity, the Board can indeed account for the nature of the
in support of such a dubious proposition — that "McMillen’s derogatory
comment was part of a conversation he individually initiated; it was not
temporally associated with the actual negotiations in question or the
actions that prompted it; and it could not have been directly responsive to
the Tribune’s negotiating positions, since McMillen prefaced the remark
by stating that he had not yet read Barker’s letter," id. at 9 — are many
of the same facts conjured up by the majority in rejecting the Board’s
analysis of the Atlantic Steel factors. See, e.g., id. at 12 (asserting that
McMillen’s comment was "divorce[d] . . . from the context of the ongoing
labor dispute" and "lack[ed] . . . concurrence" with Barker’s final letter).
In any event, the majority declines to disturb the Board’s concerted activ-
ity determination — and rightfully so, in view of the solid legal and fac-
tual ground on which it stands.
MEDIA GENERAL v. NLRB 27
employer activity in assessing factor four. Cf. Overnite
Transp. Co., 343 N.L.R.B. 1431, 1437-38 (2004) (concluding
that factor four weighed in favor of Act’s protection where
employer’s "hostile refusal" to discuss circumstances of
employee discharges, although potentially lawful, provoked
employee conduct); Felix Indus., 339 N.L.R.B. at 196-97
(weighing factor four in favor of protection where employer’s
"extremely hostile remarks" about employee’s protected
activities, though not alleged to be unfair labor practice, pro-
voked employee conduct).7
With further respect to Atlantic Steel’s factor four, the
panel majority asserts a "lack of concurrence between Bark-
er’s lawful letter and McMillen’s comment," deeming the
comment to be "an ad hominem attack" — in contrast to "a
spontaneous outburst" — "temporally removed from the site
of the ongoing collective bargaining negotiations." Ante at 3,
12. The majority also emphasizes that McMillen did not read
Barker’s final letter, and concludes that this fact "further
divorces his derogatory remark from the context of the ongo-
ing labor dispute." Id. at 12. In concluding that this factual
scenario "makes the remark of a nature less eligible for pro-
tection," the majority relies on a wholly distinguishable Board
decision: Trus Joist MacMillan, 341 N.L.R.B. 369, 371-72
(2004) (concluding that, although employee’s outburst was
7
The Board recognized in Felix Indus. that it is "free, under Atlantic
Steel, to consider [employer] conduct that would have been found to be
an unfair labor practice had it been so alleged." 339 N.L.R.B. at 196 n.5.
Here, the Board did not suggest that Barker’s letters constituted an unal-
leged unfair labor practice. Nevertheless, a majority of the Board observed
that Barker’s letters’ "provocative effect on a prounion employee is nei-
ther unexpected nor unreasonable," and that "McMillen may reasonably
have been provoked partly by Barker’s repeated hints that the pressmen
should decertify the Union." Board Decision 3 n.15. Accordingly, the
Board majority recognized that "Barker’s statements tend to mitigate the
egregiousness of McMillen’s outburst, although to a lesser degree than
had Barker’s comments been litigated and found to be legally proscribed."
Id.
28 MEDIA GENERAL v. NLRB
provoked by unfair labor practice, factor four did not favor
Act’s protection because employee "deliberately launched
into a vituperative personal attack" during "confrontational,
face-to-face meeting" orchestrated by him three days after
employer’s illegal activity). Ante at 12. In any event, even if
factor four is given greater weight against protection than the
"slight[]" weight deemed appropriate by the Board, McMillen
is yet entitled to protection from termination, on the basis of
the Board’s assessment of the other three Atlantic Steel fac-
tors — by which it weighed factors one and two "moderately
to strongly" in favor of the Act’s protection, and factor three
"moderately" against such protection. Board Decision 3-4.
Of course, the panel majority also seems to reject the
Board’s analysis of at least two other Atlantic Steel factors
(factors one and three). The majority’s analysis of these fac-
tors, however, is just as problematic and unconvincing as its
assessment of factor four. For example, the majority suggests
that factor one, i.e., the place of the discussion, should weigh
against the Act’s protection because McMillen’s comment
was made in a "setting . . . physically . . . removed from the
site of the ongoing collective bargaining negotiations." Ante
at 3; see also id. at 15 (criticizing Board Decision for "ex-
pand[ing] the Atlantic Steel factors to essentially create a
buffer around employee conduct that would travel with the
employee wherever he goes"). The majority thereby indicates
that, although it was permissible for Barker to send his letters
to the union employees’ homes, the employees were not enti-
tled to discuss those letters outside formal CBA negotiations.
The majority’s apparent view — that only employee conduct
occurring at the physical site of labor negotiations should be
accorded protection — is not only grossly unfair, but also
completely at odds with precedent. That is, the typical factor
one assessment focuses on whether the employee conduct,
because of the place where it occurred, somehow undermined
workplace discipline. See, e.g., DaimlerChrysler, 344
N.L.R.B. at 1329 (concluding that factor one weighed against
protection in light of place where outburst occurred, in that
MEDIA GENERAL v. NLRB 29
employee’s "sustained profanity would reasonably tend to
affect workplace discipline by undermining the authority of
the supervisor subject to his vituperative attack"). Here, the
majority does not — and cannot — identify anything in this
record supportive of the notion that McMillen’s comment
undermined workplace discipline. To the contrary, Lerro’s
email to pressroom manager Kerr reporting McMillen’s com-
ment did not even recommend disciplinary action against
McMillen; he sent the email because he thought it was proper
"to let [Kerr] know of any incidents that happen." Board
Decision 2. Significantly, McMillen’s comment was a "pri-
vate remark," id. at 3, made to men with whom he frequently
spoke about the letters and the labor negotiations. Cf. Stanford
N.Y., 344 N.L.R.B. 558, 558 (2005) ("The relatively secluded
room and [the employee’s] efforts to maintain the privacy of
the conversation minimized the potential that [the employ-
ee’s] outburst would impair [the employer’s] ability to main-
tain discipline in the workplace.").8
The panel majority further suggests that factor three — the
nature of the employee’s outburst — should be given more
than the "moderate[]" weight against protection assigned to it
by the Board. Board Decision 3. More specifically, the major-
ity invokes the Board’s decision in Care Initiatives, Inc.,
which observed that "insulting, obscene personal attacks by
an employee against a supervisor need not be tolerated," even
where such attacks were made during protected activity. 321
N.L.R.B. 144, 151 (1996) (internal quotation marks and alter-
ations omitted). The Care Initiatives decision emphasized,
however, that "care must be exercised in evaluating employee
language uttered in the course of engaging in activity pro-
8
The panel majority commendably acknowledges that "the Board has in
general found that remarks made in private are less disruptive to work-
place discipline than those that occur in front of fellow employees." Ante
at 10 n.4. Nevertheless, it then injects that, when conversations are "insti-
gated for the express purpose of making vulgar remarks," the situation is
vastly different. Id. This legal proposition, however, simply has no appli-
cation or relevance to the underlying facts of this proceeding.
30 MEDIA GENERAL v. NLRB
tected by . . . the Act," and that an employee’s exercise of
rights under the Act "must not be stifled by the threat of lia-
bility for the over enthusiastic use of rhetoric." Id. (internal
quotation marks omitted). Strikingly, the Board observed in
Care Initiatives that "it has been held that calling an employ-
er’s president a ‘son-of-a-bitch’ was not ‘so outrageous as to
justify discharge.’" Id. at 152 (quoting NLRB v. Cement
Transp., Inc., 490 F.2d 1024, 1029-30 (6th Cir. 1974)). In
light of this and other precedent, it was entirely rational and
consistent with the Act for the Board to rule that McMillen’s
comment should weigh only moderately against the Act’s pro-
tection. Indeed, McMillen’s comment was less like outbursts
that have been denied protection, see, e.g., DaimlerChrysler,
344 N.L.R.B. at 1328-29 (concluding that factor three
weighed against protection for employee who, in intimidating
manner, called supervisor "asshole" to his face and used other
profanity, in "more than a single spontaneous outburst,"
including "bullshit" and "fuck this shit"), and more like out-
bursts that have been deemed not to weigh against protection
at all, see, e.g., Alcoa, Inc., 352 N.L.R.B. No. 141, 2008 WL
4056272 (N.L.R.B. Aug. 29, 2008) (concluding that factor
three did not weigh against protection for employee who
referred to supervisor, across meeting table, as "egotistical
fucker," because employee’s "conduct consisted of a single
verbal outburst of profane language" that "was simply a force-
ful and momentary expression of his frustration").
In these circumstances, the Board has neither expanded the
Atlantic Steel factors nor the "parameters of our extant law,"
as the panel majority contends. Ante at 15. The Board’s dispo-
sition of this dispute was well within the parameters of its
legal authority and binding precedent, and it is instead the
panel majority that has reached beyond its bounds.
2.
Finally, the panel majority asserts that it has not made any
de novo findings in overruling the Board decision, and that it
MEDIA GENERAL v. NLRB 31
has accorded appropriate deference to the Board’s findings on
the underlying facts. To the contrary, multiple findings of the
majority were neither made nor contemplated by the Board,
and many of the majority’s findings flagrantly contradict
those of the Board. For example:
• According to the majority, there was a "lack of
concurrence" between Barker’s final letter and
McMillen’s comment. Ante at 12. To the con-
trary, the Board found that McMillen’s comment
was "directly motivated" by Barker’s final letter
and a "logical outgrowth" of McMillen’s mem-
bership in "the group of employees protesting
Barker’s letters and the positions expressed in
them." Board Decision 2.
• According to the majority, that McMillen had not
read Barker’s final letter before he made the
comment "further divorces his derogatory remark
from the context of the ongoing labor dispute."
Ante at 12. To the contrary, the Board directly
addressed this point and found that the fact that
McMillen had not read the letter when he made
his comment "does not prevent us from conclud-
ing that McMillen’s criticism of this letter was
concerted activity," especially in view of the fact
that McMillen’s comment came in response to
foreman Lerro’s remark about the likely content
of the letter. Board Decision 2 n.9.
• According to the majority, McMillen’s comment
was "temporally removed from the site of the
ongoing collective bargaining negotiations." Ante
at 3. To the contrary, the Board found that
McMillen’s conversation with foremen Lerro and
Bridges, when the comment was made, "was part
of an ongoing collective dialogue between Barker
and the unit employees about the substance and
32 MEDIA GENERAL v. NLRB
process of the contract negotiations." Board
Decision 2; see also ALJ Decision 13
("McMillen was raising issues with Lerro and
Bridges that were shared by the Union and his
co-workers — their resentment toward Barker’s
letters about the negotiations, as well as the slow
progress of the negotiations.").
• According to the majority, McMillen launched an
"ad hominem attack" against Barker. Ante at 12.
Although the Board recognized McMillen’s com-
ment as "intemperate," "profane," and "deroga-
tory," it never suggested that he made the
comment to launch a personal attack on Barker.
Board Decision 2, 3. Rather, the Board character-
ized McMillen’s comment as an "ill-tempered
rejoinder[]" to Barker’s positions on the contract
negotiations and his choice to air those views in
his letters to the employees. Id. at 4.
In the context of all this, I am reminded of our founding father
John Adams, who successfully argued on behalf of the British
soldiers charged in the Boston Massacre more than two centu-
ries ago. President-to-be Adams emphasized the time-honored
proposition that "[f]acts are stubborn things . . . and whatever
may be our wishes, our inclinations, or the dictates of our pas-
sions, they cannot alter the state of facts and evidence." David
McCullough, John Adams 52 (Simon & Schuster 2001).
III.
Pursuant to the foregoing, this is not a close case and we
should readily defer to the Board Decision. I respectfully dis-
sent, therefore, from the majority’s surprising decision to sub-
stitute its judgment for that of the Board.