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Profane Remark About Employer Results In Forfeit Of Labor Protections

Published by on April 20, 2009

In Media General Operations, Inc. v. NLRB, the Fourth Circuit found that an employee’s profane remark about his employer caused him to forfeit the protection of the National Labor Relations Act’s prohibition against retaliation for engaging in a protected activity.  More after the break. During contract negotiations between the Tampa Tribune (“Tribune”) and the union […]

In Media General Operations, Inc. v. NLRB, the Fourth Circuit found that an employee’s profane remark about his employer caused him to forfeit the protection of the National Labor Relations Act’s prohibition against retaliation for engaging in a protected activity.  More after the break.

During contract negotiations between the Tampa Tribune (“Tribune”) and the union representing pressroom employees, Gregg McMillen, a pressman, made a derogatory remark about the company’s Vice President, Bill Barker.  The comment was made to two pressroom supervisors in response to a letter that Barker had sent to pressroom employees concerning his view on the union’s role in delaying the negotiations.  McMillen’s comment was relayed to the Tribune’s management, who decided to terminate him for violating the Pressroom Office Rule against abusive or harassing language.  At the termination meeting, McMillen was refused union representation.

Following his termination, McMillen filed charges with the National Labor Relations Board (“Board”) for violations of the National Labor Relations Act (“Act”), including failure to allow for union representation at the meeting and termination for engaging in protected concerted activities.  The Administrative Law Judge (“ALJ”) dismissed both charges, stating that McMillen was not entitled to union representation, and that although McMillen was engaging in protected activity when he made the statement, the statement was so “profane, offensive and personally denigrating” that it fell outside the bounds of the Act.  On appeal, the Board reversed the ALJ’s ruling on the termination charge.

On appeal to the Fourth Circuit, the Tribune made three arguments.  First, that the Board had improperly overturned credibility determinations made by the ALJ; second, that McMillen was not engaging in a protected activity when he made the statement; and third, that even if McMillen’s activity was protected, his statement was so egregious as to fall outside the bounds of the Act. 

The Fourth Circuit rejected the argument concerning the ALJ’s credibility determinations.  The court stated that the ALJ’s finding that McMillan’s statement was the reason behind his termination was not a credibility finding; rather, it was a conclusion of law that was not entitled to special deference.  With regard to the Tribune’s second argument, the court held that it would not overturn the Board’s decision that McMillen was engaging in a protected activity.  The court stated that although the activity “skirts the outer bounds of that which can be considered concerted activity,” it was not sufficient to overturn the Board’s decision as wrong as a matter of law.

Turning to the Tribune’s final argument, the Fourth Circuit held that even if McMillen was engaging in a protected activity, he lost the protection of the Act by the profane nature of his statement.  The court stated that protected activity under the Act can lose its protected status if it is “egregious or flagrant.”  In determining whether an employee’s conduct is egregious enough to forfeit the Act’s protection, the court reiterated the four-factors that a court should consider:  (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 provoked by an unfair labor practice. 

In evaluating McMillen’s conduct against these factors, the court agreed with the Board’s determination that the first two factors weighed in McMillen’s favor, and that the fourth factor weighed against him.  As to the third factor-the nature of his outburst-the court found that the Board had erred in concluding that McMillen’s statement was not so egregious as to forfeit the Act’s protection.  The court pointed to the “lack of concurrence” between McMillen’s comment and Barker’s letter regarding the negotiations, stating that the comment was an “ad hominem attack” in response to a letter that was issued legally by the company.  The court emphasized the lawfulness of the employer’s action as additional weight against finding that McMillen was protected by the Act.

Contributed by Claudia L. Guzman

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