The Tampa Tribune

National Labor Relations Board - Administrative Judge Opinions

Feb 22, 2007

12-CA-024770 (N.L.R.B. Feb. 22, 2007)

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Tampa, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
MEDIA GENERAL OPERATIONS, INC.
d/b/a THE TAMPA TRIBUNE
and Case No. 12-CA-24770
GREGG McMILLEN, An Individual
Rachel Harvey, Esq. and Christopher Zerby, Esq., Counsel for the General Counsel.
Glenn Plosa, Esq. and Ben Bodzy, Esq., The Zinser Law Firm, P.C., Counsel 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 Tampa, Florida. The Complaint herein, which issued on August 30,
2006, and was based upon an unfair labor practice charge and an amended charge that were
filed on December 7, 20051 and January 26, 2006 by Gregg McMillen, an Individual, alleges that
Media General Operations, Inc., d/b/a The Tampa Tribune, herein called Respondent, violated
Section 8(1)(1) of the Act on about November 16, by denying McMillen’s request to be
represented by Graphic Communications Conference of the International Brotherhood of
Teamsters, Local 180, formerly known as Graphic Communications International Union, Local
180, herein called the Union, during an interview, even though McMillen had reasonable cause
to believe that the interview would result in disciplinary action being taken against him, and the
Respondent conducted the interview on November 16, despite the fact that it had denied
McMillen’s request for Union representation at the interview. The Complaint, as later amended,
further alleges that on various dates between December 2004 and November, McMillen made
concerted complaints regarding the wages, hours and working conditions of Respondent’s
employees, including complaints protesting letters sent to the employees by Vice President of
Operations Bill Barker, in December 2004, and on June 2, September 1, September 30 and
November 1 regarding the collective bargaining negotiations between the Respondent and the
Union, and including complaints protesting Barker’s letter dated November 9, replying to an
employee group letter dated November 4, concerning the negotiations. Finally, the Complaint
alleges that the Respondent discharged McMillen on November 16 because of these Union, and
protected concerted activities, in violation of Section 8(a)(1)(3) of the Act.
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.

1 Unless indicated otherwise, all dates referred to herein relate to the year 2005.
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II. Labor Organization Status
The Respondent admits, and I find, that the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
III. The Facts
A. The Protracted Negotiations
The Union and its predecessor have represented the Respondent’s press room
employees for many years. The most recent contract between the parties expired on October
31, 2004. The genesis of this case is the protracted collective bargaining negotiations between
the Respondent and the Union and letters that Barker sent to the unit employees between
December 2004 and November, blaming the Union for the lack of progress in these
negotiations.
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 one
day, but because the Union’s International representative, Sonny Shannon, was unfamiliar with
the issues and history at the facility, the meeting adjourned without any agreement. The next
letter, dated June 2, stated that at the negotiations that day and the prior day, Shannon called
Barker a “fucking idiot,” threatened a strike, an advertiser boycott and a circulation boycott,
threatened to bury the Respondent and cursed and raised his voice throughout the negotiations.
Further, at this meeting, the Respondent proposed a merit pay offer, which Shannon said he
could never agree to. The letter concluded: “No further meetings are scheduled although I am
certain some will occur in the near future. I must say that it appears from these meetings we will
be negotiating for a long time. We would like to get a contract soon. But make no mistake about
our resolve to achieve a good contract. We are willing to negotiate in good faith as long as it
takes.”
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 Shannon at the
prior meeting referred to in the June 2 letter “…and the consequences that you might face as a
result of his behavior. We were very disappointed with the way he chose to approach
negotiations and we knew you would want to hear it from us and not the grapevine. Also, since
then, your union’s representative has been unresponsive to our invitations to meet. However, on
August 30, he finally agreed to meet with us on September 26 and 27- a total of one and one-
half days.” The next letter, dated September 30, dealt with the bargaining sessions conducted
on September 26 and 27; these were the bargaining sessions that McMillen attended. The letter
states that the first day was disappointing and unproductive. In addition, it states that Shannon
was verbally abusive, again used profanity, threatened an advertising boycott, as well as
making other threats. On the second day, “The union finally addressed our Management Rights
Proposal” and the parties reached agreement on that issue. He continued: “Although progress
was made, we are concerned about the slow pace of negotiations…Threatening behavior and
other unprofessional tactics will not result in your getting a quicker increase. Also, at this time
we do not have any additional dates set for more negotiations.” At the conclusion of the letter
Barker states:
Finally, a few thoughts about these letters. The union’s Pittsburgh based negotiator,
Sonny Shannon, complained about my last letter to you. He said he was going to file an
“unfair labor practice charge” because of the letter. The only purpose for this action
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would be to try to censor or prevent my communications to you. That is neither right nor
in your best interest. Mark Donoghue [Secretary of the Union] admits there is nothing
untrue in the letters. The union is free to communicate. We, as a newspaper employer,
stand for freedom of speech. The union needs to respect your right to be informed. Our
sole purpose of these letters is to inform you of what we know and understand to be
true. It is important to us that we have a common understanding of the truth. We also
want to make sure you are informed and have answers to your questions.
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 Shannon
stated that he was not available until after November 28. The Respondent then proposed the
dates of December 14 and 15, giving Shannon until October 26 to reply; he had not replied by
that date, but did call on October 28 to say that he was available on December 14 and 15: “We
at least hope that, in the future, the Union will respond more promptly. The next time, the
available dates may be lost, thus delaying us further.”
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
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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
Union for the lack of progress in negotiations, although he and other unit employees testified
that there is nothing in the letters that is factually incorrect. Hale testified that he discussed
Barker’s letters with McMillen: “Well, he got pissed off getting these letters…He didn’t like them.
I got one too, and I didn’t like mine either…” In addition, at a few of the negotiating sessions,
Shannon complained to Respondent’s counsel about these letters and said that they were
written by a fucking idiot. Respondent’s counsel responded that they had a constitutional right to
write the letters.
B. The Events of November 10
McMillen reported for work on the second shift on November 10. At about 9:00 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
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evening of November 13, Lerro asked McMillen to sign the disciplinary record for his no call, no
show two 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 Moron” and that he was
harassing them with these illegal letters. He also said that it was against there [sic] rights
to send out such trash and propaganda. He said that he had not checked his mail box
before leaving for work, but if he had a letter waiting for him at home, he would not be
coming back to work because he would “Go Out On Stress.” He was very upset and
literally shaking. I tried calming him down and defusing the situation, but he just walked
out of the office.
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% 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.
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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
6:00 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 6:00 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
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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 6:00 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 Union’s chairpersons who was
sitting nearby, to go with him. The guards said that he could not have a witness with him, and
McMillen said that he was not going without a witness. The guards said that he could go with
them, but it was up to the people upstairs whether he would be allowed to go into the meeting
with him. McMillen asked Hale to go with him, and the four of them went upstairs to Stewart’s
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office. When they walked into the office, Kerr asked Hale what he was doing there, and Hale
said that he was the chairman. Kerr said that he didn’t belong in the meeting, and would not be
allowed to attend. Hale said that he wanted to be a witness and Kerr replied that he was not
allowed to be there because it was not an on-going investigation. At that point, Hale left the
room. He testified that Kerr then asked him if he had called Barker a fucking idiot, and he said,
“Yes, what’s the problem? Everybody calls him one.” Kerr then told him that he was fired, and
McMillen asked if it was okay for Barker to send those nasty letters to them, and Kerr said that it
was, and he was escorted out of the office by the security guards. McMillen was asked whether
he asked to have a Union representative present with him at any time during this meeting. He
testified: “Did I state that? No. That’s why I brought Donny up there.” On cross examination, he
testified that Kerr was the first one to speak at the meeting after Hale left:
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 thirty three 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 eighteen
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
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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, Shannon referred to Barker as a fucking idiot. He
further testified that with the exception of what McMillen said about Barker, he is not aware of
any situation where a pressman directed profanity at, or about, a supervisor. Mark Donoghue,
who has been employed as a pressman by the Respondent for twenty years, testified that it is a
“common practice” to curse in the pressroom. The pressmen curse in front of the foremen on a
regular basis, but he cannot remember any situation where a pressman cursed in the presence
of the pressroom manager. Donoghue testified about an incident that occurred in either 2000 or
2001. The employees had completed their work for the night and, at the last minute when
everyone was preparing to leave, the foreman told Lerro that he had to do something prior to
leaving. Later, Lerro told Donoghue that he had called the foreman a fucking idiot. Donoghue
was asked by counsel for the Respondent:
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 thirty 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.
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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 Company, 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 Baton Rouge
contains further language that is helpful in the instant matter:
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 three 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.
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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, three days prior to meeting with the employee, that he
would be given a three 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 five 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
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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 II3, 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 Union or that other
employees had asked him to speak to Lerro and Bridges at that time. Although that may be a
factor in determining whether he was engaged in union or protected concerted activities at that
time, it is certainly not controlling of the issue. I find more significant that many of the other
pressmen employed by the Respondent were also unhappy about these letters, although they
did not react in the same way that McMillen did. In excess of twenty five pressmen signed a
sarcastic letter to Barker, in response to his letters, telling him to agree to the Union’s proposal,
Shannon, at the negotiations, strongly objected to these letters on two occasions, and Hale
testified that he also did not like receiving these letters. Therefore, while McMillen was alone in
the room with Lerro and Bridges when he made the offending remark, he was not alone in his
feelings about Barker’s letters. In addition, prior to his remark about Barker, McMillen
complained about the slow progress of the negotiations as well as Barker’s letters. In Holling
Press, supra, the Board dismissed the Complaint because they found that the Charging Party’s
complaint was “personal” and “individual in nature” and was “not made to accomplish a
collective goal. Rather their purpose was to advance her own cause…Her goal was a purely
individual one.”
In K-Mart Corporation, 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

2 Although I recommend the dismissal of this allegation, I should note that if I had found that
this was an investigatory interview I would have found that McMillen need not have requested
representation. He arrived at the meeting with Hale as his stated representative. Hale was
refused admission by the Respondent on the ground that it was not an investigatory meeting.
There would be no need or reason to require McMillen to request to have a representative
present for the second time.
3 Meyers Industries, 268 NLRB 493 (1984) and Meyers Industries, 281 NLRB 882 (1986).
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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 Union and his co-workers- their resentment toward Barker’s letters about the
negotiations, as well as the slow progress of the negotiations. Although these complaint were
spoken in the first person, they were part of the concerted efforts by the other employees, and
therefore constituted concerted activities on his part.4
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 America, 338 NLRB 20 (2002). The Board stated in Piper Realty
Company, 313 NLRB 1289, 1290 (1994): “Thus, although employees are permitted some
leeway for impulsive behavior when engaging in concerted activity, this leeway is balanced
against an employer’s right to maintain order and respect.” In Honda of America Mfg., Inc., 334
NLRB 746, 747 (2001), the Board, quoting from Webster Men’s Wear, 222 NLRB 1262, 1267
(1976) and American Hospital Association, 230 NLRB 54, 56 (1977), stated: “An employee’s
Section 7 rights ‘may permit some leeway for impulsive behavior.’ Nevertheless, an employee’s
otherwise protected activity may become unprotected ‘if in the course of engaging in such
activity, [the employee] uses sufficiently opprobrious, profane, defamatory, or malicious
language.’” The accepted test for whether the language warrants the loss of protection is set
forth in Atlantic Steel Company, 245 NLRB 814 816 (1979). The four factors in this
determination are: (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

4 I find no evidence to support the claim that McMillen was terminated because of his Union
activities. Although he was a Union member and attended one series of bargaining sessions,
there is no evidence connecting this with his termination.
5 I find that it was the language that he employed, rather than simply his complaints about
the letters, that caused his discharge. In excess of twenty five employees, including McMillen,
signed the November 4 letter to Barker, which was critical of their working conditions in a cynical
tone, but there is no evidence that any of the signers were disciplined because of it.
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by the employer’s unfair labor practices.
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 twenty five 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 No. 154 (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 No. 69 (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
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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
Shannon, there was nothing untruthful in them and Barker clearly had a right to express his
opinion about the negotiations, as the employees had the right to respond to Barker’s letter in
their November 4 letter. As there were no unfair labor practices to provoke his outburst, this
fourth factor weighs in favor of his losing the protection of the Act. As I find that the first two
factors weigh in favor of protecting McMillen’s conduct, while the third and the fourth factor
weigh against protecting him, it tips the balance in favor of the loss of protection. I therefore
recommend that the allegation that the Respondent violated Section 8(a)(1) of the Act by
discharging McMillen on November 16, 2007 be dismissed.
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 Union has been a labor organization within the meaning of Section 2(5) of the
Act.
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.
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On these findings of fact, conclusions of law and based upon the entire record, I hereby
issue the following recommended6
ORDER
It is recommended that the Complaint be dismissed in its entirety.
Dated, Washington, D.C., February 22, 2007
__________________________________
Joel P. Biblowitz
Administrative Law Judge

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.