The Tampa Tribune

National Labor Relations Board - Board Decisions

Dec 28, 2007

351 N.L.R.B. 1324 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
351 NLRB No. 96
1324
Media General Operations, Inc. d/b/a The Tampa
Tribune and Gregg McMillen. Case 12–CA–
24770
December 28, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
At issue in this case is whether the Respondent vio-
lated Section 8(a)(1) and (3) of the Act when it dis-
charged 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 com-
municated a summary of the Respondent’s view of ongo-
ing contract negotiations and blamed the Union for de-
lays in reaching a contract.1
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 Presi-
dent Barker mailed to the Respondent’s pressmen a se-
ries 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 Union was to blame for the slow pace of
negotiations. Many pressmen were angered by the anti-
union slant of Barker’s letters. On November 4, 2005,2

1 On February 22, 2007, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The General Counsel and the
Respondent each filed exceptions and a supporting brief, as well as
answering briefs to the other party’s exceptions, and the General Coun-
sel filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The General Counsel also filed exhibits related to his request for
subpoena enforcement and motion to reopen the record to admit addi-
tional evidence obtained pursuant to his subpoena. Because we con-
clude that the Respondent violated the Act as alleged based on the
evidence already in the record, we need not reach the General Coun-
sel’s subpoena request, and we find moot the related motion to reopen
the record. Finally, the General Counsel filed a motion to strike por-
tions of the Respondent’s brief in support of its exceptions because
those portions of the brief relied on evidence that the judge excluded
from the record. We grant the General Counsel’s unopposed motion.
The Respondent excepts to the judge’s finding that McMillen ade-
quately asserted a Weingarten right to a union representative during the
November 16, 2006 meeting at which he was discharged. NLRB v. J.
Weingarten, Inc., 420 U.S. 251 (1975). In view of the judge’s unex-
cepted-to dismissal of the alleged violation on the ground that Weingar-
ten does not apply to noninvestigatory meetings, we find it unnecessary
to pass on the judge’s finding that McMillen’s actions would have
sufficed to assert such a right.
2 All dates are in 2005, unless otherwise stated.
about 25 employees, including McMillen, signed a letter
to Barker responding collectively to his most recent let-
ter. The letter complained about working conditions,
placed the blame on the Respondent’s management for
the lack of negotiating progress, and expressed discon-
tent over the Respondent’s refusal to agree to the Un-
ion’s proposal. The letter also complained that Barker’s
earlier letters contained suggestions that the employees
decertify the Union.
Barker responded to the employees in a letter dated
November 9, expressing his understanding of the press-
men’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 “subgroup” of employ-
ees, “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, McMil-
len 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 re-
sponded 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 an-
other 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

3 McMillen’s testimony referred to Barker’s letters harassing and
threatening “us.” Although he did not specify who “us” referred to, we
conclude that he referred to all the employees who were receiving the
letters from Barker.
4 Although McMillen testified that he said “fucking idiot,” the judge
found, consistent with the testimony of the Respondent’s witnesses,
that McMillen used the term “stupid fucking moron” or “fucking mo-
ron.” We find no legally significant difference among the various
phrasings.
5 During this conversation, McMillen also commented on the slow
pace of negotiations, according to Lerro, and the Respondent’s bargain-
ing position on pay increases, according to Bridges.
TAMPA TRIBUNE 1325
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 e-mail about
the incident to Pressroom Manager George Kerr, Produc-
tion Director George Stewart, and Barker. Lerro’s e-mail
message described not only McMillen’s profane state-
ment 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 e-mail
to Kerr simply because he thought it was proper “to let
him know of any incidents that happen.”
Based on Lerro’s e-mail, 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, quarrel-
ing, boisterousness, wrestling, scuffling, horseplay, dis-
orderly 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 re-
frain 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

6 McMillen apologized to Lerro for his comments several days later,
which was apparently the next time he saw Lerro. Although Lerro did
not mention the November 10 incident or make McMillen aware that
the incident could have disciplinary consequences, McMillen apolo-
gized if anything he had said on November 10 was inappropriate, add-
ing “[B]ut you know Bill gets to me.”
7 On November 16, at Lerro’s request, Bridges also sent an e-mail
describing the incident. According to Bridges’ e-mail, McMillen fur-
ther made reference to the pressmen’s wages and stated that even if
they received a 6-percent pay raise, it would still be less than inflation.
8 At the hearing, the Respondent’s witnesses testified to also relying
on the companywide policy of “fairness, dignity, and respect” and on
the “Conduct” rules found in the employee handbook, which state that
“Employees should refrain from loud, profane or indecent language and
name-calling.”
opprobrious to cause him to lose the Act’s protection.
Thus, we conclude that McMillen’s dismissal was unlaw-
ful.
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 sub-
stance and process of the contract negotiations. McMil-
len’s statements were directly motivated by Barker’s
November 9 letter to all employees, which responded to
the employees’ plainly concerted group letter of Novem-
ber 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 activ-
ity.12
II.
Longstanding Board precedent establishes that “em-
ployees are permitted some leeway for impulsive behav-
ior when engaging in concerted activity,” subject to the

9 Contrary to the Respondent’s contention, the fact that McMillen
had not yet read Barker’s November 9 letter when he made the remarks
at issue does not prevent us from concluding that McMillen’s criticism
of this letter was concerted activity, especially in view of Lerro’s com-
ment to McMillen that Barker’s letter was probably a response to the
pressmen’s group letter.
10 We distinguish K-Mart Corp., 341 NLRB 702 (2004), in which
the Board found no evidence that an employee’s profanity-laced com-
ments about a new rule were concerted. In K-Mart, unlike here, there
was no evidence of any related conduct by other employees, let alone
evidence that the alleged discriminatee had participated in such con-
duct.
11 Further, in response to his separate discipline a few days later,
McMillen ironically thanked the Respondent “for not caring about are
[sic: presumably ‘our’] well being” in relation to Barker’s letters.
12 The General Counsel excepts to the judge’s further conclusion that
McMillen’s statements were not union activity. We find it unnecessary
to reach that issue, in light of the finding that the statements were pro-
tected concerted activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1326
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 con-
duct 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. Atlan-
tic Steel, 245 NLRB at 816.
A.
We adopt the judge’s unchallenged findings with re-
gard to the first two factors. As the judge found, the dis-
cussion 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 dis-
cussion 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 640, 642 (2007) (hold-
ing that provocation factor weighed against protection
where employee’s outburst was provoked by employer’s
lawful email criticizing the union).15

13 Consequently, the relevant legal issue is not whether (in the
judge’s words) “McMillen could have expressed his anger about the
letters without defaming Barker as he did,” or even whether McMillen
should have done so.
14 Contrary to the Respondent’s contentions, we do not apply Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 453 U.S. 989 (1982), in the absence of a dispute about the Re-
spondent’s motive for discharging McMillen. Nor do we consider the
use of particular offensive words as a separate and independent basis
for the discharge. See Thor Power Tool, 148 NLRB 1379 (1964), enfd.
351 F.2d 584 (7th Cir. 1965) (the profanity is part of the res gestae of
the otherwise-protected conversation).
15 Member Liebman and Member Walsh disagree with the Board’s
limitation of “provocation” evidence to conduct that constitutes an
unfair labor practice. In this case, McMillen may reasonably have been
provoked partly by Barker’s repeated hints that the pressmen should
decertify the Union. While the complaint does not allege that Barker’s
remarks are unlawful, their provocative effect on a prounion employee
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 mod-
erately 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 initia-
tive, not because of any realization of forthcoming con-
sequences 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

is neither unexpected nor unreasonable. In Member Liebman’s and
Member Walsh’s view, Barker’s statements tend to mitigate the egre-
giousness of McMillen’s outburst, although to a lesser degree than had
Barker’s comments been litigated and found to be legally proscribed.
16 To the extent that the Respondent’s own perception of the egre-
giousness of McMillen’s remarks is relevant, we find that the evidence
does not clearly establish how atypical his remarks were in the context
of the pressroom work environment, which the evidence reflects was
the locus of considerable profanity. We find it significant that Lerro
did not recommend any discipline but merely reported the incident as a
matter of duty. Moreover, Lerro himself had called his supervisor a
“fucking idiot.” (The judge gave this evidence little weight but did not
discredit it.) McMillen’s profane and derogatory statement about
Barker arguably differed in quality or severity from the usual use of
profanity in the pressroom, but it is not evident that the supervisors who
actually heard it perceived it as egregious.
17 Compare, e.g., Waste Management of Arizona, 345 NLRB 1339
(2005) (employee cursed repeatedly and loudly before witnesses, re-
fused supervisor’s repeated requests to move discussion into office,
made threats toward supervisor, and was terminated in part for his
refusal to follow orders); Daimler Chrysler, 344 NLRB 1324 (2005)
(employee cursed repeatedly in front of many other employees, called
supervisor an “asshole” to his face, and physically approached supervi-
sor in an “intimidating” manner); Trus Joist Macmillan, 341 NLRB 369
(2004) (employee called supervisor names to his face in front of other
managers, repeated his comments after being warned to stop, made
sexually insulting gestures and statements to supervisor, and was termi-
nated for insubordination); Aluminum Co. of America, 338 NLRB 20
(2002) (employee’s “tirade” was repeated, sustained, and very public);
Piper Realty, 313 NLRB 1289 (1994) (employee’s cursing directly at
supervisor was heard by other employees and occurred in the course of
TAMPA TRIBUNE 1327
Finally, for the purposes of assessing whether oppro-
brious statements may cause the loss of the Act’s protec-
tion, 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 Respon-
dent’s chief negotiator and his decision to criticize the
Union in letters to employees over issues that directly
relate to bargaining table disputes reasonably triggered a
response directed at him.18 Neither Barker’s position nor
his choice to disseminate to employees his view on nego-
tiations shield him from ill-tempered rejoinders.
C.
Because we weigh the third Atlantic Steel factor dif-
ferently 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 reinstate-
ment to his former position or to a substantially equiva-
lent 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 re-
move from its files all references to the unlawful actions

employee’s refusal to perform work assignment; also, employee re-
fused to leave supervisor’s office when he was told to).
18 The record indicates that the Union’s chief negotiator had made
essentially identical remarks directly to Barker during negotiations
attended by several unit employees.
19 In any event, we disagree with the judge’s tacit (and perhaps inad-
vertent) implication that the final outcome is determined simply by
counting the number of factors favoring and disfavoring protection, and
that an equal balance of two factors on each side dictates a conclusion
that the conduct lost the Act’s protection. See, e.g., Success Village
Apartments, Inc., 347 NLRB 1065, 1069 (2006) (finding employee’s
outburst protected, where location and subject matter of discussion
weighed in favor of protection, while nature of outburst and lack of
provocation weighed against protection).
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, Tampa, Florida, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for engaging in protected concerted activi-
ties.
(b) In any like or related manner interfering with, re-
straining, 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 earn-
ings and other benefits suffered as a result of the dis-
crimination 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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 Tampa, Florida, copies of the attached no-
tice marked “Appendix.”20 Copies of the notice, on
forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-

20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1328
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since November 16, 2005.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge any of you or otherwise dis-
criminate 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 unlaw-
ful 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
TAMPA TRIBUNE
Rachel Harvey, Esq. and Christopher Zerby, Esq., for the Gen-
eral 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 Tampa, Flor-
ida. 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, 2005,1 and
January 26, 2006, by Gregg McMillen, an individual, alleges
that Media General Operations, Inc. d/b/a The Tampa Tribune
(Respondent) violated Section 8(a)(1) of the Act on about No-
vember 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 (the
Union), during an interview, even though McMillen had rea-
sonable cause to believe that the interview would result in dis-
ciplinary 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 and 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) and (3) of the Act.
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that it has been an em-
ployer 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 Union has been a
labor organization within the meaning of Section 2(5) of the
Act.

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2005.
TAMPA TRIBUNE 1329
III. THE FACTS
A. The Protracted Negotiations
The Union and its predecessor have represented the Respon-
dent’s pressroom 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 ne-
gotiations 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 Re-
spondent felt that the negotiations could be completed in 1 day,
but because the Union’s International representative, Sonny
Shannon, was unfamiliar with the issues and history at the facil-
ity, 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,” threat-
ened 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 meet-
ings 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 con-
tract 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 “unprofes-
sional 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 invi-
tations 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 pro-
gress was made, we are concerned about the slow pace of nego-
tiations. . . . 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 ne-
gotiations.” At the conclusion of the letter Barker states:
Finally, a few thoughts about these letters. The union’s Pitts-
burgh 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 would be to try to censor or prevent my com-
munications to you. That is neither right nor in your best in-
terest. Mark Donoghue [Secretary of the Union] admits there
is nothing untrue in the letters. The union is free to communi-
cate. 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 ques-
tions.
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 Octo-
ber 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 De-
cember 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
25 pressmen employed by the Respondent, including McMil-
len, 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 of-
fice, chat with people in business suits, and go out to
lunch. We work in noise so loud we need hearing protec-
tion, breath chemical fumes and ink mist, handle hazard-
ous 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 pro-
posal 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 re-
sponse to my recent letter informing you of upcoming ne-
gotiations. 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1330
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 re-
sponsibility of all of us to come to a mutually acceptable
agreement. We appreciate your letter but we cannot indi-
vidually negotiate or negotiate with a sub-group. You have
a committee representing you and you need to realize un-
der a union structure they are accountable for your satis-
faction 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 Col-
lective Bargaining Agreement substantially similar to the
one your union signed a couple of years ago with the Pa-
perhandlers 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 fore-
men 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 Novem-
ber 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 an-
other 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 of-
fice. 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] discrimina-
tion, 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 calm-
ing him down and defusing the situation, but he just walked
out of the office.
Bridges testified that McMillen came to the office shortly be-
fore midnight on November 10. He did not walk all the way in
TAMPA TRIBUNE 1331
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 press-
men 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 Novem-
ber 11, he discussed the incident with Stewart, then with
Barker, and they decided to recommend that McMillen be ter-
minated 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 deter-
mined 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 termi-
nation.” Rule 9 states:
Threatening, abusive, or harassing language, quarreling, bois-
terousness, wrestling, scuffling, horseplay, disorderly conduct,
fighting, violence or threats there of and all disturbances inter-
fering 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 occa-
sions.
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 con-
duct 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 p.m. on November 16 in Stew-
art’s office. McMillen’s card activated access to the Respon-
dent’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 Re-
spondent. When McMillen and the security guard came into the
office, Donald Hale, another pressman employed by the Re-
spondent was with them. Hale told them that he was there to
represent McMillen. Kerr replied that this was not an investiga-
tion, 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 fin-
ish, 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, cor-
rect?
A. Yes, he did.
Q. He made that admission in answer to your ques-
tion, right?
A. No, sir. He did not
At that point, Kerr told McMillen that he was terminated effec-
tive 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 com-
pleted his statement by telling him that he was terminated ef-
fective 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 immedi-
ately.” 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 secu-
rity card had been deactivated and that when he came into the
building that evening, he was to be escorted directly to Stew-
art’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 prem-
ises. 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 p.m. a security officer brought McMillen and
Hale to his office. Kerr asked Hale if he was there in the capac-
ity of a union representative, and Hale said that he was. Kerr
said, “Then you can leave. This in not an investigatory meet-
ing.” 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 state-
ment 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 an-
swered 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1332
make this very clear, your employment with the Tampa Trib-
une 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 termi-
nate 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 re-
sources representative. The procedure that the Respondent em-
ploys 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 meet-
ing. 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 No-
vember 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. McMil-
len 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 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 at-
tend. 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 testi-
fied 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 p.m., 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 McMil-
len 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 accom-
pany 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 introduc-
tion states that employees who engage in misconduct, or violate
rules and policies established by the Respondent, will be sub-
ject 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 em-
ployee 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 negotia-
tion 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
TAMPA TRIBUNE 1333
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
20 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 press-
room at the Tampa Tribune where an employee has di-
rected profanity at a supervisor in the presence of other
supervisors, correct?
A. Yeah. I would say . . . it wasn’t done with two su-
pervisors 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 su-
pervisor’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 pro-
fanity 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 su-
pervisors.
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) and (3) of the Act by termi-
nating him on November 16?
In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Su-
preme 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 repre-
sentation when the purpose of the interview was merely to in-
form 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 Baton Rouge contains further language that is help-
ful 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 “dis-
ciplinary” 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 at-
tempt 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 hold-
ing 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 con-
versation at the employee’s behest or instigation concern-
ing 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 fi-
nal, binding decision to impose certain discipline on the
employee prior to the interview, based on facts and evi-
dence obtained prior to the interview, no Section 7 right to
union representation under Section 7 exists under Wein-
garten when the employer meets with the employee sim-
ply to inform him of, or impose, that previously deter-
mined 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1334
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 repre-
sentation at the meeting because the employer “went beyond
the act of imposing discipline and sought and secured an ad-
mission of possible misconduct. Such an inquiry indicated that
Respondent was continuing, on a substantive basis, its investi-
gation 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 em-
ployee 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 sim-
ple ministerial act of imposing upon Slater discipline which had
been determined in a final and binding manner prior to the in-
terview. . . . At no time did Fair cross the line between an in-
vestigatory interview and one solely for the purpose of impos-
ing discipline by seeking or securing information from Slater
concerning his alleged misconduct.” In Gulf States Manufac-
turers, 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 em-
ployer’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: “Respon-
dent’s conduct constituted more than merely a conversation
concerning its reasons for the previously determined discipline.
Rather, Respondent delved further into the circumstances sur-
rounding 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 imme-
diately 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 mo-
ron, 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 wit-
nesses that would assist in this determination. With some diffi-
culty, 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 state-
ment on November 10, so there was no valid reason for him to
ask McMillen whether he really said it. Additionally, the Re-
spondent 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. Tex-
aco, supra. I therefore recommend that this allegation be dis-
missed.2
The principal issue herein is whether McMillen was termi-
nated in violation of Section 8(a)(1) and (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 com-
plained 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 “cir-
cumstances 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 be-
yond 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 pro-
tected concerted activities at that time, it is certainly not con-
trolling of the issue. I find more significant that many of the
other pressmen employed by the Respondent were also un-
happy about these letters, although they did not react in the
same way that McMillen did. In excess of 25 pressmen signed a

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).
TAMPA TRIBUNE 1335
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. There-
fore, 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 Holl-
ing 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 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 pro-
testing 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 em-
ployees complained about the change, the charging party was
the most vocal one, and had made a telephone call to the De-
partment 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 com-
plaints “cannot be considered in isolation.” In finding a viola-
tion, the Board stated:
The employees complained among themselves and most, in-
cluding Resnick, brought the complaint directly to LaPenta.
Accordingly, we find the employees were engaged in a con-
certed 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 coworkers—
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 consti-
tuted 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

4 I find no evidence to support the claim that McMillen was termi-
nated 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
25 employees, including McMillen, signed the November 4 letter to
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 let-
ters, 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 con-
sidered protected, and language that is so profane and uncalled
for that the speaker loses the protection of the Act. Aluminum
Co. of America, 338 NLRB 20 (2002). The Board stated in
Piper Realty Co., 313 NLRB 1289, 1290 (1994): “Thus, al-
though 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 Assn., 230
NLRB 54, 56 (1977), stated: “An employee’s Section 7 rights
‘may permit some leeway for impulsive behavior.’ Neverthe-
less, 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 Co., 245 NLRB 814 816 (1979). The four factors in this
determination are: (1) the place of the discussion; (2) the sub-
ject matter of the discussion; (3) the nature of the employee’s
outburst; and (4) whether the outburst was, in any way, pro-
voked 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 supervi-
sors, 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 com-
plaints by employees and Shannon and resulted in the Novem-
ber 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 there-
fore constituted concerted activities.
The third factor, the nature of the outburst, is the most diffi-
cult 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

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1336
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), enfd. 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, inter-
rupted 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 Stanford Hotel, 344 NLRB 558 (2005), the su-
pervisor 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, 331 NLRB 144 (2000), enforcement re-
manded 251 F.3d 1051 (D.C Cir. 2001), remanded 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 pro-
tection. The court at 1055, remanded the case to the Board stat-
ing: “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 pro-
tection 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 re-
mand.” 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 out-
burst 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 pro-
tection. . . . 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 ges-
tures directed at Lerro or Bridges, his comments directed at
Barker were profane, offensive, and personally denigrating.
The evidence establishes that while profanity in the pressroom
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 un-
truthful 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 pro-
tecting McMillen’s conduct, while the third and the fourth fac-
tor 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 dis-
charging McMillen on November 16, 2007, be dismissed.
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union has been a labor organization within the mean-
ing 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)
and (3) of the Act by discharging McMillen on November 16.
[Recommended Order omitted from publication.]