NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Media General Operations, Inc. d/b/a The
December 28, 2007
DECISION AND ORDER
By Members Liebman, Kirsanow, and Walsh
At issue in this case is whether the Respondent violated
Section 8(a)(1) and (3) of the Act when it discharged employee Gregg McMillen
for making a profane and derogatory statement about the Respondent’s vice
president of operations, Bill Barker. McMillen made the statement at issue
while criticizing a series of letters Barker sent to bargaining unit employees,
which communicated a summary of the Respondent’s view of ongoing contract
negotiations and blamed the
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.
Background
During the course of contract negotiations, Vice President
Barker mailed to the Respondent’s pressmen a series of letters that described
the negotiations. The letters are not alleged
to be either inaccurate or unlawful, but they were written from the Respondent’s
perspective and asserted that the
Barker responded to the employees in a letter dated November 9, expressing his understanding of the pressmen’s working conditions and the need for patience in collective bargaining; reiterating the Respondent’s belief in its collective-bargaining positions; expressing his view that “third parties interfere with both our collective as well as individual successes”; and explaining that “under a union structure” the Respondent could not negotiate with individual employees or a “sub-group” of employees, “as long as you have a third party representative.”
On November 10, while working on the evening shift, McMillen heard from a coworker that Barker had sent the pressmen another letter. McMillen had not yet seen the letter, nor was he aware of its contents. During a lull between tasks, McMillen went to the pressroom office and spoke with shift foreman Glenn Lerro and assistant shift foreman Joel Bridges, both admitted supervisors. When Bridges asked how McMillen was doing, McMillen answered “[n]ot too good right now” because he had heard that Barker had sent the pressmen another letter. Lerro stated that Barker’s new letter was probably a reply to the employees’ November 4 letter. McMillen responded that he didn’t feel it was right for Barker to be “harassing” and “threatening” the employees3 by sending the letters. He continued by saying, about Barker, “I hope that [stupid] fucking [moron]4 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.”5 No one else overheard the conversation. Although it is disputed whether Lerro and Bridges made any response to McMillen’s statements, it is clear that Lerro and Bridges neither instructed McMillen not to curse nor gave him any indication that they thought the incident called for discipline. McMillen completed his shift without further incident.6
Later in the shift, however, Lerro sent an email about the incident to Pressroom Manager George Kerr, Production Director George Stewart, and Barker. Lerro’s email message described not only McMillen’s profane statement about Barker, but also McMillen’s statements that Barker “was harassing them with these illegal letters,” and that “it was against there [sic] rights to send out such trash and propaganda.”7 Lerro did not recommend any disciplinary action against McMillen; he sent the email to Kerr simply because he thought it was proper “to let him know of any incidents that happen.”
Based on Lerro’s email, Kerr, Stewart, and Barker agreed that McMillen had engaged in gross misconduct and should be terminated for violating a pressroom rule stating:
Threatening, abusive, or harassing language, quarreling, boisterousness, wrestling, scuffling, horseplay, disorderly conduct, fighting, violence or threats thereof and all disturbances interfering with employees at work anywhere in the building are prohibited. Employees are expected to exercise common sense and display good manners in the presence of visitors and should refrain from offensive language on such occasions.8
When McMillen arrived at work on November 16, he was discharged.
Discussion
As discussed below, we agree with the judge’s finding that McMillen’s November 10 complaints to Lerro and Bridges were connected to ongoing protected concerted activity. In assessing whether McMillen’s statements lost the Act’s protection, we also agree with the judge that Atlantic Steel, 245 NLRB 814 (1979), sets forth the applicable standard. In disagreement with the judge, however, we find that McMillen’s use of a single profane and derogatory reference to Barker was not sufficiently opprobrious to cause him to lose the Act’s protection. Thus, we conclude that McMillen’s dismissal was unlawful.
I.
Although McMillen went to the pressroom office alone and without any authorization to do so by the Union or his coworkers, his conduct was nonetheless concerted because it was part of an ongoing collective dialogue between Barker and the unit employees about the substance and process of the contract negotiations. McMillen’s statements were directly motivated by Barker’s November 9 letter to all employees, which responded to the employees’ plainly concerted group letter of November 4.9 By signing the pressmen’s November 4 letter, McMillen had identified himself as a member of the group of employees protesting Barker’s letters and the positions expressed in them. Thus, McMillen’s further comments to Lerro and Bridges on November 10 were “a logical outgrowth” of the prior collective and concerted activity in which he was already engaged. See Every Woman’s Place, 282 NLRB 413 (1986), and cases cited therein; see also Midland Hilton & Towers, 324 NLRB 1141 (1997); Mike Yurosek & Son, Inc., 306 NLRB 1037, 1038 (1992), after remand, 310 NLRB 831 (1993), enfd. 53 F.3d 261 (9th Cir. 1995).10 Moreover, in his statements, McMillen spoke in the plural, not singular, stating that Barker, by his letters, was harassing and threatening “us.”11 In these circumstances, we conclude that McMillen’s statements constituted concerted activity.12
II.
Longstanding Board precedent establishes that “employees are permitted some leeway for impulsive behavior when engaging in concerted activity,” subject to the employer’s right to maintain order and respect.13 Piper Realty Co., 313 NLRB 1289, 1290 (1994). To assess whether an employee’s admittedly impulsive and unwise conduct is so severe that it outweighs his or her Section 7 rights, we apply the balancing test set forth in Atlantic Steel, supra.14 In deciding whether the employee’s conduct crosses the line, we “must carefully balance” four factors: (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. Atlantic Steel, 245 NLRB at 816.
a.
We adopt the judge’s unchallenged findings with regard to the first two factors. As the judge found, 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 authority. And the subject matter was McMillen’s criticism of the Respondent’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 Section 7 right. Thus, for the reasons stated by the judge, we conclude that both the place of the discussion and the nature of the subject matter weigh in favor of protection for McMillen’s remarks.
We further adopt the judge’s finding that the fourth factor weighs slightly against McMillen retaining the Act’s protection. McMillen’s statements were provoked by Barker’s letters, which were lawful communications. See Verizon Wireless, 349 NLRB No. 62, slip op. at 3 (2007) (holding that provocation factor weighed against protection where employee’s outburst was provoked by employer’s lawful email criticizing the union).15
b.
We part company with the judge, however, regarding the third Atlantic Steel factor, the nature of McMillen’s outburst. Although McMillen’s reference to Barker as a “stupid fucking moron” was clearly intemperate, we find that the nature of McMillen’s remark weighs only moderately against his retaining the Act’s protection.
First, we find it significant that McMillen’s statement, although it was about Barker, was not directed at Barker (i.e., McMillen did not insult Barker to his face), and there were no other confrontational aspects to it, such as physical conduct or threats. Second, McMillen made the statement only once, and he later apologized and sought to explain himself, spontaneously and at his own initiative, not because of any realization of forthcoming consequences or hope of forestalling them. Indeed, at no time before his November 16 discharge was McMillen informed that his remark deserved any sort of official response or discipline, let alone termination.16 Further, although McMillen’s private remark was disrespectful, it was not insubordinate in regard to production or work assignments, nor did it serve to directly challenge Barker’s managerial authority. Based on the foregoing facts, we find this case distinguishable from cases cited by the Respondent.17
Finally, for the purposes of assessing whether opprobrious
statements may cause the loss of the Act’s protection, we find no basis to draw
distinctions based on the high-level position of the official to whom the
reference is made. In any event, Barker’s
position as the Respondent’s chief negotiator and his decision to criticize the
c.
Because we weigh the third Atlantic Steel factor differently from the judge, we come to a different overall balance.19 We find that the location and subject matter of McMillen’s statements, which weigh moderately to strongly in favor of his retaining the Act’s protection, more than offset the nature of his outburst and the lack of provocation by unfair labor practices of the Respondent, which weigh slightly to moderately against protection. Thus, contrary to the judge, we find that McMillen’s statements on November 10 retained the protection of the Act despite his profane and derogatory remark about Barker. Because McMillen’s statements were protected, the Respondent’s termination of his employment based on those statements violated Section 8(a)(1).
Remedy
Having found that the Respondent discriminatorily discharged Gregg McMillen as indicated above, we shall order the Respondent to offer him immediate reinstatement to his former position or to a substantially equivalent one if his former position no longer exists. We shall also order the Respondent to make him whole for all loss of earnings and other benefits in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), along with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also remove from its files all references to the unlawful actions taken against Gregg McMillen and advise him in writing that it has done so.
ORDER
The National Labor Relations Board orders that the
Respondent, Media General Operations, Inc., d/b/a The Tampa Tribune,
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for engaging in protected concerted activities.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Gregg McMillen full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Gregg McMillen whole for any loss of earnings and
other benefits suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Gregg McMillen, and within 3 days thereafter notify him in writing that this has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in
(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Wilma
B. Liebman,
Member
Peter
N. Kirsanow,
Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of
the
National Labor
Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not discharge any of you or otherwise discriminate against you because you engage in protected concerted activities.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above.
We will, within 14 days
after the Board’s Order, offer Gregg McMillen full reinstatement to his
former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges
previously enjoyed.
We will make Gregg McMillen whole for any loss of earnings and other
benefits resulting from his discharge, less any net interim earnings, plus
interest.
We will, within 14
days from the date of the Board’s Order, remove from our files any reference to
the unlawful discharge of Gregg McMillen, and we
will, within 3 days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him in any way.
Media general operations, inc. d/b/a the
Rachel Harvey, Esq. and Christopher Zerby, Esq., for
the General Counsel.
Glenn Plosa, Esq. and Ben Bodzy, Esq. (The Zinser Law Firm), for the Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge. This case was
heard by me on December 4 and 5, 2006, in
Findings of Fact
i. jurisdiction
The Respondent admits, and I find, that it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
ii. labor organization status
The Respondent admits, and I find, that the
iii. the facts
A. The Protracted Negotiations
The
The first letter that Barker sent to the unit members,
dated December 28, 2004, stated that at the initial meeting the Respondent felt
that the negotiations could be completed in 1 day, but because the
The next letter from Barker dated September 1, begins by
saying: “It is a top priority of mine to make sure the lines of communication
are open between Pressroom employees and your management team.” The letter
referred to the “unprofessional behavior” of
Finally, a few thoughts about these letters. The union’s
Barker next wrote on November 1 “. . . to keep you informed
of our progress with negotiations with Local 180.” The letter states that the
Respondent proposed bargaining dates of October 24 and 25, but these dates were
not acceptable to the Union, and that
By letter to Barker dated November 4, signed by more than twenty five pressmen employed by the Respondent, including McMillen, the employees wrote, inter alia:
Thanks for your recent letter updating us on the status of the contract meetings. . .
Here’s the reality: You sit in your nice clean, quiet office, chat with people in business suits, and go out to lunch. We work in noise so loud we need hearing protection, breath chemical fumes and ink mist, handle hazardous MSDS listed chemicals and we are not allowed to leave the premises for lunch- not even to Publix. There are no carpets or pretty pictures on our walls, just steel plate floors and various warning labels attached to presses, doors and walls. We work with equipment that can strip the flesh off our bones, and mangle us. Will a pencil sharpener or stapler do that?
You get your raises, yet we are denied. For two years now. You seem to forget that there is more than one proposal on the table.
Please stop playing the Sonny/Zinser game and sign the union proposal [emphasis supplied]. Sign the union proposal and help us feel confident our management team is as thankful for our efforts as you say and write.
Barker responded to this letter on November 9, writing to the employees, inter alia:
I have received the attached November 4 letter in response to my recent letter informing you of upcoming negotiations. I appreciate your open communications which gives us an opportunity to address a couple of your points.
. . . Your letter indicates to me a frustration with the Collective Bargaining process. Patience is the model here. We are going to be as patient as necessary to get a good Collective Bargaining Agreement.
Second, let me say I truly respect and honor what you do as press operators and apprentices. Having been a pressman for a few years, I indeed know first hand your contributions and I value them. I know the risk, the fun and the pride your work brings. I know the frustrations and the desire to be and to do your best at the Tampa Tribune. It is recognized and appreciated. We want to reward you. We believe this should be done on individual merit. Merit is what got me promoted and recognized for my abilities. That is why I believe that third parties interfere with both our collective as well as individual successes. . .
Now let’s review some of the concerns. As you well know, a contract is binding on both parties and it is the responsibility of all of us to come to a mutually acceptable agreement. We appreciate your letter but we cannot individually negotiate or negotiate with a sub-group. You have a committee representing you and you need to realize under a union structure they are accountable for your satisfaction with this process. As long as you have a third party representative, we are bound to bargain over these types of issues at the table. On occasion, that takes time. In your case we had hoped that time required would be short as your representatives have already signed a contract that contains the proposals currently on the table. . .
In terms of being at the helm, folks, again understand, we are at the helm. It is our goal to lead everyone to a good Collective Bargaining Agreement. We believe we could have that Collective Bargaining Agreement really soon if only the union could see its way to agree to a Collective Bargaining Agreement substantially similar to the one your union signed a couple of years ago with the Paperhandlers at the Tampa Tribune. So far, the union has said, “no way.” We believe in our proposals, and we are going to persevere. . .
McMillen received each of Barker’s letters, and on most of
the occasions after receiving the letters, he spoke to the foremen about them
complaining that Barker always blamed the
B. The Events of November 10
McMillen reported for work on the second shift on November 10. At about 9 that evening another employee told him that he had received another letter from Barker, which McMillen had not yet received. McMillen testified that later that evening, at about 11:30, he went into the office in the pressroom; Glenn Lerro, the pressroom foreman, and Joel Bridges, the assistant foreman, were in the office at the time. McMillen closed the office door and asked how they were doing, and they said pretty good. Bridges asked how he was doing, and he said, “Not too good right now. I am a little stressed out. I heard we got another letter from Bill Barker.” Lerro asked him if he read the letter yet, and McMillen said that he hadn’t read it yet. Lerro said that he probably didn’t know what was in it, and it was probably a reply to the pressmens’ November 4 letter. McMillen said that he didn’t feel that it was right that Barker was “harassing” and “threatening” them by sending the letters. Lerro said that there was nothing that he could do about it, and McMillen said: “I hope that fucking idiot 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” and he left the office. He testified that neither Lerro nor Bridges commented on what he said, and he left work the following morning at about 3 a.m. without further incident, and later that day, November 11, he received Barker’s November 9 letter. He testified that he was so unnerved by the letter that he could not sleep and took a sleeping pill, which resulted in him not awakening on time to report for work on November 11. He called Lerro, who told him that he would be a no-call, no-show, which meant that he would miss that shift and his next shift, without pay. On the evening of November 13, Lerro asked McMillen to sign the disciplinary record for his no call, no show 2 days earlier. McMillen signed the record, and wrote on the bottom: “If Billy BOB [Barker] would quit writing me lieing [sic] discrimination, harassing and threatening letters through the U.S. Mail I wouldn’t have to take sleeping pills to go to sleep. Thank you Tampa Tribune for not caring about are [sic] well being.” McMillen testified that he then told Lerro that he was sorry if anything he said on November 10 was inappropriate, “but you know Bill gets to me.” He then returned to work.
Lerro testified that McMillen came into the pressroom office on the evening of November 10 at a time when he and Bridges were in the office. McMillen complained about the letters that Barker had sent to the pressroom employees and was upset about the slow progress of contract negotiations. He thought that the letters were a form of harassment and called Barker a “stupid fucking moron.” McMillen appeared to be agitated and Lerro told him to calm down, because he wouldn’t want what he said to get out. On the following morning, Lerro sent an e-mail to George Kerr, the pressroom manager, with copies to George Stewart, production director, and Barker, stating, inter alia:
Thursday night, Greg McMillen came storming into the office
ranting and raving about the letter. What he said was that Mr. Barker is a “Stupid
F—g
Bridges testified that McMillen came to the office shortly before midnight on November 10. He did not walk all the way in to the office; rather, he was by the door directly in front of Lerro, whom he appeared to be speaking to. He said that he was upset by the letter that was sent out and if he got one at home, he probably would not be coming back, and that Barker was a fucking moron. On the morning of November 16, Lerro asked Bridges to prepare an e-mail about the events of November 10. His e-mail to Kerr is similar to Lerro’s, but also states that McMillen said that he was insulted that Barker referred to the pressmen as printers, and further stated that even if the pressmen received a 6 percent wage increase, it would still be lower than the rate of inflation.
Kerr testified that after receiving Lerro’s e-mail on November 11, he discussed the incident with Stewart, then with Barker, and they decided to recommend that McMillen be terminated for what he said on November 10. Kerr testified that in making the recommendation that McMillen be terminated, he consulted the Respondent’s Pressroom Office Rules and determined that Rule 9 applied. The preface of these rules states: “The following list of rules set forth the pressmen’s principle office rules which, together with observing all other proper standards of conduct, employees are required to follow. Any employee who fails to maintain at all times proper standards of conduct or who violates any of the following rules shall subject themselves to disciplinary actions, up to, and including termination.” Rule 9 states:
Threatening, abusive, or harassing language, quarreling, boisterousness, wrestling, scuffling, horseplay, disorderly conduct, fighting, violence or threats there of and all disturbances interfering with employees at work anywhere in the building are prohibited. Employees are expected to exercise common sense and display good manners in the presence of visitors and should refrain from offensive language on such occasions.
On the afternoon of November 16, Kerr received a telephone call from Stewart saying that a final decision had been made to terminate McMillen, and that he should return to work to conduct the termination. Stewart testified that after seeing Lerro’s e-mail, he discussed the situation with Kerr and they decided that McMillen’s statement constituted gross misconduct, and that, as a result, McMillen would be terminated.
C. The Events of November 16
Stewart, Kerr, and Human Resources Manager Rick Sierra met with McMillen at about 6 on November 16 in Stewart’s office. McMillen’s card activated access to the Respondent’s parking lot and building had been deactivated earlier that day, so he was brought to the office by one of the security guards at the facility who was employed by Wackenhut. Kerr testified that McMillen’s security badge had been deactivated denying him access to the parking lot and the building because, by that time, “he was no longer an employee. . .” of the Respondent. When McMillen and the security guard came into the office, Donald Hale, another pressman employed by the Respondent was with them. Hale told them that he was there to represent McMillen. Kerr replied that this was not an investigation, and that his services were not needed. Hale then looked over to McMillen and asked, “Is that all right with you Gregg?” and McMillen answered, “I guess.” Hale then left. After Hale left, McMillen never requested to have a representative present with him at the meeting. Kerr testified that after everyone sat down he told McMillen that he had learned that McMillen called Barker a stupid fucking moron and “before I could finish, McMillen said: Yeah. I said it. I was pissed off.” Kerr was asked by counsel for the General Counsel:
Q. During the meeting, Mr. McMillen admitted that he referred to Mr. Barker as a fucking idiot or moron, correct?
A. Yes, he did.
Q. He made that admission in answer to your question, right?
A. No, sir. He did not
At that point, Kerr told McMillen that he was terminated effective immediately. As stated above, the decision to terminate McMillen had been made earlier in the day, and if McMillen had not interrupted him at the meeting, he would have completed his statement by telling him that he was terminated effective immediately. McMillen responded by saying that Barker can send him harassing and threatening letters and he can’t do anything about it, and Kerr responded by saying, “No, what I’m saying is that you are terminated effective immediately.” McMillen was then escorted from the office and the building.
Steward testified that prior to this meeting, he notified the security employees at the building that “we were in the process of fixing to terminate an employee” and that McMillen’s security card had been deactivated and that when he came into the building that evening, he was to be escorted directly to Stewart’s office. At 3:48 that afternoon, Stewart sent an e-mail to the security department stating: “I would like for the security folks who bring him up to my office stand by [sic] so that he can be taken to his locker and escorted to his vehicle and off the premises. Will that be a problem?” Fifteen minutes later Stewart received an e-mail from security saying that it would not be a problem. At 6 a security officer brought McMillen and Hale to his office. Kerr asked Hale if he was there in the capacity of a union representative, and Hale said that he was. Kerr said, “Then you can leave. This in not an investigatory meeting.” Hale then asked McMillen: “Are you okay with this?” McMillen replied, “I guess so” and Hale left the office. After Hale left, McMillen did not request any union representation at the meeting. Stewart testified:
Buddy [Kerr] began with a statement to try to . . . say a
statement and complete it, but it was to the essence of he couldn’t really
believe that Gregg had actually called the vice president of operations a
fucking moron. At that time Gregg broke in and interrupted and said, wait a
minute I was really pissed off about the letters that Mr. Barker had been
sending. He had no right to send harassing letters and kept on and then Buddy
stopped him at that point and told him. He said, listen, I want
. . . to make this perfectly clear to you that your employment with the Tampa
Tribune is terminated at this point. Gregg answered back and said, you are
going to try to fire me because I’m getting harassing letters from Mr. Barker
and Buddy stopped him again and for the second time told him, I want to make
this very clear, your employment with the Tampa Tribune is terminated at this
point.
Kerr then told the security guard to accompany McMillen to his locker and they left.
Sierra testified that the purpose of this meeting was to terminate McMillen. He had been told early that afternoon that they had made the decision to terminate McMillen, and he was asked to be in Kerr’s office later that day as the human resources representative. The procedure that the Respondent employs is that when a decision is made to terminate an employee, the employee’s security badge is deactivated, preventing him/her from gaining access to the parking garage and the building without assistance from the security guards at the building. Prior to the meeting, the security employees had been told that when McMillen arrived, he was to be escorted to Kerr’s office. The meeting began at about 6 p.m. Hale came into the meeting with McMillen, and Kerr asked him why he was there. Hale said that he was asked to be there by McMillen, and Kerr said, “This is not an investigation. You have no right to be here.” After Hale left the office, McMillen never said that he wanted a union representative present with him at the meeting. Sierra was asked by counsel for the General Counsel:
Q. What was the purpose of that meeting?
A. It was to terminate Mr. McMillen’s employment.
Q. When asked, Mr. McMillen admitted that he called William Barker a “fucking idiot,”, correct? Or “moron?’
A. He wasn’t asked.
Q. He did admit that, though?
A. He did admit it…
McMillen testified that when he reported for work on November
16 he swiped his card in the Respondent’s parking lot, but the gate did not
open, so he pushed a button, and a security guard let him into the parking
garage. When he got to the main building, two security guards were waiting for
him, and told him that they were told to take him to Stewart’s office. McMillen
asked the guards if he could get a witness, Hale, one of the
Q. You would agree with me that you interrupted Mr. Kerr while he was talking, wouldn’t you?
A. I can’t say I did or not. I don’t believe I interrupted him.
Q. Isn’t it true that Mr. Kerr told you that you were terminated because you called Mr. Barker a stupid fucking moron?
A. No. He never told me why I was being fired.
Hale testified that on November 16, at about 5:30, as he was in the smoking area shortly before reporting for work, McMillen approached him and said that he needed his help. He went with McMillen and saw the security guards with their arms folded. Hale said that he was going to accompany McMillen to Stewart’s office as the union chairman and the guard said that they would not let him go with them. Hale replied that since he was the union chairman he should be allowed to go with him, and the security guards relented, and let him accompany them to Stewart’s office. When they arrived at the office, Kerr and Sierra asked Hale, “What are you doing here?” and Hale said that as the union chairman he was there to represent McMillen. He was told that it was “not a union matter so we don’t need you here.” Hale said that he would just be a witness, and they said, “You can’t do that either.” Hale then said to McMillen: “They don’t want me in here. There’s nothing I can do for you. I’m leaving, okay?” McMillen agreed and at that point, Hale left the office.
D. Profanity in the Pressroom
The Respondent alleges that its Pressroom Rules set forth above apply herein. In addition, on September 15, 2003, McMillen signed an acknowledgment that he had received a copy of the Respondent’s Employee Handbook. The introduction states that employees who engage in misconduct, or violate rules and policies established by the Respondent, will be subject to discipline up to, and including, termination. Rule (b) states: “Employees shall refrain from loud, profane or indecent language and name-calling.” McMillen testified that pressmen curse on a daily basis in the pressroom. The only time that he has heard a supervisor tell a pressman not to use profanity in the pressroom is when a field trip is touring the pressroom. Hale testified that in his 33 years employment as a pressman for the Respondent he has not witnessed a situation where an employee cursed directly at a supervisor, although it is fairly common to hear the pressmen cursing at the machines.
Jay Farris, who has been employed by the Respondent as a
pressman for 18 years, testified that the pressmen curse in the pressroom all
the time: “part of the normal conversation.” In about November 2006, while he
was in the midst of numerous medical visits and tests, he told his supervisor
of the situation and said, “I can’t wait until this fucking shit is over with
. . .” Farris also testified that he attended one of the negotiation sessions
where Barker’s letter was discussed. After seeing the letters,
Q. You would agree with me that aside from Mr. McMillen you are unaware of any instance in the pressroom at the Tampa Tribune where an employee has directed profanity at a supervisor in the presence of other supervisors, correct?
A. Yeah. I would say…it wasn’t done with two supervisors there, yeah. I would say that’s probably correct.
Q. Okay. And you are unaware of any employee in the pressroom directing profanity at a supervisor to that supervisor’s face, correct?
A. No. I can’t agree with that.
Q. Calling a supervisor a name, a profane name?
A. No. Probably not. Yeah.
Q. That’s what I’m referring—I’m not talking about you are stressed because the press is having problems and you let something loose and there’s a supervisor standing next to you. I’m talking about a different situation, where you go up to a supervisor. You look the supervisor in the eye and you say: You are something?
A. No. I have never witnessed something like that.
Q. And you have never done that yourself, have you?
A. No.
Lerro testified that, occasionally, he has heard pressroom employees using profanity. While employees have cursed at him, it was in a joking manner. Other than the situation with McMillen, he is not aware of any instance where an employee directed profanity at a supervisor. Bridges testified that during his tenure as a supervisor, no employee has ever directed profanity at him, or at a supervisor. Kerr likewise testified that other than McMillen, he is unaware of any situation where an employee directed profanity at a supervisor. In addition, while he was a rank-and-file employee for the Respondent he never directed profanity at a supervisor. Stewart testified that in his 30 years of employment with the Respondent he is unaware of any situation where an employee cursed at a supervisor, or directed profanity at a supervisor, in the presence of other supervisors.
iv. analysis
There are two distinct, yet connected issues herein. Did the Respondent violate Section 8(a)(1) of the Act by denying McMillen the right to have a union representative present at the meeting on November 16, where he was terminated, and did the Respondent violate Section 8(a)(1)(3) of the Act by terminating him on November 16?
In NLRB v. J.
Weingarten, Inc., 420 U.S. 251 (1975), the Supreme Court found that
employees have a Section 7 right to request union representation at an
investigatory interview where they could reasonably believe that the
investigation will result in disciplinary action. In Certified Grocers of California, Ltd., 227 NLRB 1211 (1977), the
Board found that the rights associated with Weingarten
applied to any interview, whether it
was labeled as investigatory or disciplinary, as long as the employee involved
reasonably believed that it might result in disciplinary action being taken
against him. The Court, at 587 F.2d 449 (9th Cir. 1978) refused to enforce the
Board’s Order finding that Weingarten
did not require a right to union representation when the purpose of the
interview was merely to inform the employee that he was being disciplined. In Baton Rouge Water Works Co., 246 NLRB
995, 997 (1979), the Board reexamined its decision in Certified and decided that it was wrongly decided and that it
should be overruled: “We now hold that under the Supreme Court’s decision in Weingarten, an employee has no Section 7
right to the presence of his union representative at a meeting with his
employer held solely for the purpose of informing the employee of, and acting
upon, a previously made disciplinary decision.” In addition, the Board’s
decision in
We stress that we are not holding today that there is no right to the presence of a union representative at any “disciplinary” interview. Indeed, if the employer engages in any conduct beyond merely informing the employee of a previously made disciplinary decision, the full panoply of protections accorded to the employee under Weingarten may be applicable. Thus, for example, were the employer to inform the employee of a disciplinary action and then seek facts or evidence in support of that action, or to attempt to have the employee admit his alleged wrongdoing or to sign a statement to that effect, or to sign statements relating to such matters as workmen’s compensation, such conduct would remove the meeting from the narrow holding of the instant case, and the employee’s right to union representation would attach. In contrast, the fact that the employer and the employee thereafter engaged in a conversation at the employee’s behest or instigation concerning the reasons for the previously determined discipline will not, alone, convert the meeting to an interview at which the Weingarten protections apply.
In summary, as long as the employer has reached a final, binding decision to impose certain discipline on the employee prior to the interview, based on facts and evidence obtained prior to the interview, no Section 7 right to union representation under Section 7 exists under Weingarten when the employer meets with the employee simply to inform him of, or impose, that previously determined discipline.
In that case the Board found that because the employer had reached its decision to discharge the employee 3 days before the meeting where she was informed of the discharge, and the sole purpose of the meeting was to inform her of the discharge, the employee had no Section 7 right to union representation simply because she insisted on continuing the meeting in order to obtain an explanation for the reasons for her discharge.
Texaco, Inc., 251 NLRB 633, 636–637 (1980) is interesting because it involved two distinct situations. In the first, although the employer had evidently decided prior to the meeting that the employee would be given a reprimand, at the meeting he secured an admission from the employee of his wrongdoing. The Board found that the employee was entitled to union representation at the meeting because the employer “went beyond the act of imposing discipline and sought and secured an admission of possible misconduct. Such an inquiry indicated that Respondent was continuing, on a substantive basis, its investigation of the incident.” In the second situation, the employer decided, 3 days prior to meeting with the employee, that he would be given a 3 day suspension. At the meeting, the employee was informed that the meeting involved discipline and was handed the suspension letter. When the employee claimed his innocence, the employer’s representative began to respond, but stopped, saying that it had no bearing on the issue. The Board decided that no right to representation attached in this situation because the Respondent was “. . . engaged in the simple ministerial act of imposing upon Slater discipline which had been determined in a final and binding manner prior to the interview. . . .At no time did Fair cross the line between an investigatory interview and one solely for the purpose of imposing discipline by seeking or securing information from Slater concerning his alleged misconduct.” In Gulf States Manufacturers, Inc., 261 NLRB 852 (1982), the employer decided prior to meeting with the employee (Scott) that he would be given a written warning. Upon meeting with the employee, the employer’s representative informed him that he would be given a written warning, but when Scott started to argue the issue, the employer’s representative questioned him further about the incident underlying the warning. The Board decided that Scott was entitled to union representation at this meeting: “Respondent’s conduct constituted more than merely a conversation concerning its reasons for the previously determined discipline. Rather, Respondent delved further into the circumstances surrounding Scott’s justification for his conduct and, in effect, sought further facts in support of its action against Scott.”
Applying these cases to the instant matter, it is clear that if, as testified to by McMillen, Kerr opened the meeting by asking him if he had called Barker a fucking idiot, or some similar term, the right to representation under Section 7 would immediately attach. On the other hand if, as testified to by Kerr and Stewart, McMillen interrupted Kerr, as he was about to tell him that he was terminated for calling Barker a stupid fucking moron, and said that he did say it, no right of representation would attach, as long as Kerr did not question him further about the incident. This is a difficult credibility determination because none of the individuals involved in this meeting were either clearly credible or clearly incredible. In addition, there were no obvious discrepancies in the testimony of any of these witnesses that would assist in this determination. With some difficulty, I credit the testimony of Kerr, Stewart, and Sierra over that of McMillen. Kerr had e-mails from the two supervisors who were present when McMillen made the offending statement on November 10, so there was no valid reason for him to ask McMillen whether he really said it. Additionally, the Respondent had spent the prior 5 days deciding how to deal with the situation. After all of that time, I find it highly unlikely that Kerr would begin the meeting by asking McMillen if he had made the statement as alleged. I therefore find that Kerr began the meeting by saying that he had learned that McMillen had called Barker a stupid fucking moron (as testified to by Kerr), or that he couldn’t believe that he had made the statement (as testified to by Stewart). Either way, Kerr was not seeking an admission from McMillen, and after McMillen interrupted Kerr and said that he did make the statement, Kerr did not question him further about it; he simply told him that he was fired. Texaco, supra. I therefore recommend that this allegation be dismissed.[2]
The principal issue herein is whether McMillen was terminated in violation of Section 8(a)(1)(3) of the Act. This boils down to two separate issues. Was he engaged in protected concerted or union activities on November 10 when he complained to Lerro and Bridges about Barker’s letters and, if so, was the language that he employed so egregious that he lost the protection of the Act?
In Holling Press, Inc., 343 NLRB 301, 302 (2004), the Board quoted from Meyers I and Meyers II,[3] stating:
The Board reaffirmed that concerted activity included “circumstances in which individual employees seek to initiate or to induce or to prepare for group action,” and “activity which in its inception involves only a speaker and a listener, for such activity is an indispensable preliminary step to employee self-organization,” so long as what is being articulated goes beyond mere griping.
The underlying question is often whether the employee was
simply making a personal complaint (a “gripe”) or whether his/her complaint was
meant to inure to the benefit of all the employees. If the latter, it comes
within the “mutual aid and protection” clause of Section 7. Counsel for the
Respondent, at the hearing and in his brief, stressed the fact that McMillen
did not say on November 10 that he was there in some capacity on behalf of the
In K-Mart Corp., 341 NLRB 702, 703 (2004), the Board found that an employee who had used obscenities in response to being notified that he could no longer take his breaks in the lobby, as had been his practice, was not engaged in concerted activities. The Board found that there was no evidence that he was acting on the authority of, or with other employees in protesting the break rules, and that there was no evidence that the union had taken a position on the break room rules. On the other hand, in Salisbury Hotel, 283 NLRB 685 (1987) the charging party was discharged because of her complaints about the change in the employees’ lunch hour. Although all the employees complained about the change, the charging party was the most vocal one, and had made a telephone call to the Department of Labor complaining about the change, although the Board found no evidence that any other employee knew that she was going to make the call, nor did they authorized her to call on their behalf. The Board, in finding that the charging party was engaged in concerted activities, stated that her complaints “cannot be considered in isolation.” In finding a violation, the Board stated:
The employees complained among themselves and most, including Resnick, brought the complaint directly to LaPenta. Accordingly, we find the employees were engaged in a concerted effort to convince the Respondent to change its lunch hour policy. Resnick’s complaints to the other employees, as well as her individual complaints to the Respondent, were part of that concerted effort.
In the instant matter, McMillen was raising issues with
Lerro and Bridges that were shared by the
The evidence establishes that McMillen was discharged for calling Barker a stupid fucking moron on November 10.[5] The question therefore is whether this language was so egregious that he lost the protections of the Act that would otherwise protect his concerted activities. I find that it was. Barker’s letters, while inflammatory, were not untruthful. McMillen could have expressed his anger about the letters without defaming Barker as he did.
There is a very thin line between statements that will be
considered protected, and language that is so profane and uncalled for that the
speaker loses the protection of the Act. Aluminum
Company of
The first factor, the place of the discussion, weighs in favor of protection. It took place in the office with only the supervisors, Lerro and Bridges present. I find it likely that McMillen closed the door after entering the office, but even if he didn’t there is no evidence that any other employee overheard what he said or that it was disruptive to the operation of the pressroom. The second factor, the subject matter of the discussion, also favors protection. McMillen was complaining to Lerro and Bridges about the slow progress of the negotiations and Barker’s latest letter to the bargaining unit employees about negotiations. These letters had also been the subject of complaints by employees and Shannon and resulted in the November 4 letter to Barker from more than 25 employees expressing their anger at his letters, and I have found that the initiation of the discussion with Lerro and Bridges about this subject therefore constituted concerted activities.
The third factor, the nature of the outburst, is the most difficult of these factors. In Daimler Chrysler Corp., 344 NLRB 1324 (2005), after the supervisor suggested that the grievance discussion take place the following week, the employee called the supervisor an “asshole” and said, “Bullshit, I want this meeting now.” He also said, “Fuck this shit” and that he did not “have to put up with this bullshit.” During this period there were quite a few other employees in the area. The Board found that because he was “insubordinate and profane” during this discussion, and because “the profanity involved more than a single spontaneous outburst,” the third factor in Atlantic Steel weighed against protection. In Winston-Salem Journal, 341 NLRB 124, 126 (2004), enf. denied, 394 F.3d 207 (4th Cir. 2005) a supervisor, at a crew meeting, told the employees that their teamwork needed improvement. The charging party, interrupted him by saying that he did not treat all the employees equally, and called him a racist and said that the employer was a racist place to work. In its analysis, the Board found that the third factor weighed in the charging party’s favor because, although he interrupted the supervisor and called him a racist, “this conduct was not so inflammatory as to lose the protection of the Act.” In the Stanford Hotel, 344 NLRB 558 (2005), the supervisor asked the charging party why he wanted to become a member of the union, told him that he was a supervisor and could not be in the union, and threatened to fire him unless he told the union agent that he was a supervisor. The charging party called the supervisor a liar and a bitch, and loudly called him a “fucking son of a bitch.” The Board found that because the charging party’s outburst was “profane and offensive” this third factor weighed against a finding that his outburst was protected. However, because this outburst was provoked by the employer’s unlawful threat of discharge, the Board found that the fourth factor, in addition to the first two factors, weighed in favor of protection. With three factors in favor and one against protection, the Board found that the charging party did not lose the protection of the Act by his conduct.
In Felix Industries, Inc., 331 NLRB 144 (2000), remanded 251 F.3d 1051 (D.C Cir. 2001), 339 NLRB 195 (2003), in response to a question of whether he would be paid the night differential, the supervisor told the charging party that he would get every penny that he was entitled to, but that he could not believe that he was making an issue of it, that the company had never beat anybody out of any money, and that he was tired of “carrying” the employee. The charging party responded, “You’re a fucking kid. I don’t have to listen to a fucking kid. Things were a lot different before you were here.” When the supervisor asked what he had called him, he repeated, “fucking kid.” The majority of the Board, in finding the resulting discharge a violation, in the discussion of the third factor, stated that it “consisted of a brief, verbal outburst of profane language, unaccompanied by any threat or physical gesture or contact” and therefore weighed in the favor of protection. The Court, at p. 1055, remanded the case to the Board stating: “If an employee is fired for denouncing a supervisor in obscene, personally denigrating, or insubordinate terms—and Yonta here managed all three with economy—then the nature of his outburst properly counts against according him the protection of the Act.” The Court then stated: “Yonta’s statements do weigh against protection. Whether they weigh enough to tip the balance in that direction is for the Board to decide on remand.” On remand, a majority of the Board again found that the termination violated the Act, noting that the Court agreed with the Board that none of the three other Atlantic Steel factors (1, 2, and 4) weighed in favor of him losing the protection of the Act:
After careful consideration in light of the court’s instructions on remand, we find that although the nature of Yonta’s outburst must be given considerable weight toward losing the Act’s protection, this one factor is insufficient to overcome the other factors weighing against Yonta losing the Act’s protection. . . A careful examination of these factors reveals that they clearly outweigh the one factor weighing in favor of Yonta losing the Act’s protection, the nature of the outburst.
On the basis of the above cases, I find that the nature of
the conduct that McMillen engaged in on the evening of November 10 weighs in
favor of his losing the protection of the Act under Atlantic Steel. Although there were no threats or physical gestures
directed at Lerro or Bridges, his comments directed at Barker were profane,
offensive, and personally denigrating. The evidence establishes that while
profanity in the press room was fairly common, it was usually directed at machinery
that was not operating properly, and none of the witnesses could recall a
situation where an employee directed profanity at a supervisor such as McMillen
did on November 10. Donoghue’s testimony that in either 2000 or 2001 Lerro told
him that after a foreman gave him a last minute assignment, he called him a
fucking idiot is too indefinite to overcome this evidence. It is not clear
whether Lerro was a pressman at the time, to whom he made the statement and
whether it was made in jest. Finally, the fourth factor, whether the outburst was
provoked by unfair labor practices, favors McMillen losing the protection of
the Act. While the letters were clearly partisan, and angered many of the
employees, as well as
Conclusions of Law
1. The Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. The Respondent did not violate Section 8(a)(1) of the Act by refusing to allow McMillen to have union representation at the November 16 meeting, and did not violate Section 8(a)(1)(3) of the Act by discharging McMillen on November 16.
On these findings of fact, conclusions of law, and based upon the entire record, I hereby issue the following recommended[6]
ORDER
It is recommended that the Complaint be dismissed in its entirety.
Dated,