Media General Operations, Inc. v. National Labor Relations Board

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.