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Labor & Employment Law Forum
Volume 4 | Issue 1
Article 4
1-1-2014
Unprotected Profanity:The Erosion of an
Employee’s Right to Convey Grievances
Lauren P. McDermott
Follow this and additional works at: http://digitalcommons.wcl.american.edu/lelb
Part of the Law Commons
Recommended Citation
McDermott, Lauren P. "Unprotected Profanity:The Erosion of an Employee’s Right to Convey Grievances." American University
Labor & Employment Law Forum 4, no. 1 (2014): 97-124.
This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American
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UNPROTECTED PROFANITY:
THE EROSION OF AN EMPLOYEE’S
RIGHT TO CONVEY GRIEVANCES
LAUREN P. MCDERMOTT1
“It is the policy of the United States that-- sound and stable industrial
peace and the advancement of the general welfare, health, and safety of the
Nation . . . can most satisfactorily be secured by the settlement of issues
between employers and employees through the processes of conference and
collective bargaining.”2
On June 5, 1935, with Congress’ enactment of the National Labor
Relations Act3 (“NLRA” or “Act”), came great expectations of employee
rights and the hope of equality at the bargaining table.4 The NLRA was
hailed the “Magna Carta of American Labor,”5 guaranteeing employees the
right to collectively organize, bargain, and strike without fear of
repercussions from employers.6 As Senator Robert Wagner stated on the
Senate floor, “caught in the labyrinth of modern industrialism and dwarfed
by the size of corporate enterprise [the employee] can attain freedom and
dignity only by cooperation with [other employees].”7 The enactment of
1
A special thank you to Professor Rodger Hartley for his guidance and
contribution.
2
The National Labor Relations Act, 29 U.S.C. § 171 (2006).
3
National Labor Relations Act, 29 U.S.C. §§ 151-169 (2006).
4
Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 753 (1985)(stating that “the NLRA’s
declared purpose is to remedy ‘[t]he inequality of bargaining power between
employees who do not possess full freedom of association or actual liberty of contract,
and employers who are organized in the corporate or other forms of ownership
association.’”)(quoting 29 U.S.C. § 151); See 1 James A. Gross, The Making of the
National Labor Relations Board: A Study of Economics, Politics, and the Law, 144
(1974)(stating that the Act created substantive rights that were thought to be able to
produce economic and social progress).
5
See Peter E. Millspaugh, America’s Industrial Relations Experiment: Legal
Scholarship Accesses the Wagner Act, 32 St. Louis. U. L.J. 673, 678 fn 25 (1988)
6
29 U.S.C. § 157; See Millspaugh, supra note 5, (stating that an employees’ right
“[to enhance economic recovery, industrial relations peace, and industrial democracy”
are guaranteed through economic weapons as well as “by a broad statutory prohibition
against employer interference, as well as specific prohibitions against enumerated
employer anti-union practices, such as discriminatory discharges, company union
sponsorship, and refusal to bargain.”)
7
79 Cong. Rec. H7565 (1935)(remarks of Senator Wagner); see also Millspaugh,
supra note 5 at 679 (noting that proponents of the Wagner Act policy viewed industrial
2
THE LABOR & EMPLOYMENT LAW FORUM
[Vol. 4.1
the Act represented the aspiration to use law in a way that would advance
economic and social progress.8 The Act was considered crucial for equal
opportunity and a balance of power between employers and employees.9
However, since the Act was first implemented, it has failed to live up to
the expectations for labor rights in America.10 Rather than the law being a
vehicle for social progress and greater equality between labor and
management, the law has been used as a mechanism for the slow erosion of
it’s own initial principles: to insure industrial peace through equality in
collective bargaining.11
unions as a vehicle to enhance the status of individual workers rather than a catalyst for
reorganizing the economy or displacing management.”).
8
See Leon H. Keyserling, The Wagner Act: Its Origin and Current Significance, 29
Geo. Wash. L. Rev. 199, 218 (1960) (describing Senator Wagner’s envision of the
legislation as an “affirmative vehicle” for social progress); see also Schlossberg &
Fetter, U.S. Labor Law and the Future of Labor-Management Cooperation, 3 Lab.
Law. 11, 12-13 (1987) (“[T]he Department of Labor has taken a strong position in
support of labor-management cooperation as an important prerequisite to America's
return to preeminence in the world marketplace.” Secretary of Labor William E. Brock
has said that our country must develop a ‘solid atmosphere of cooperation, based on the
concept of worker dignity and equality and grounded in a mutual respect for collective
bargaining, [which] enables both unions and management to maintain individual
integrity while working for the good of all.’(quoting the address by W. Brock,
Sixteenth Constitutional Convention, AFL-CIO, Anaheim, Calif. (Oct. 30, 1985)).
9
29 U.S.C. § 151; see also John E. Higgins, et al, The Developing Labor Law, 28
(5th ed. 2006); James A Gross, The Broken Promises of the National Labor Relations
Act and The Occupational Safety Act and Health Act: Conflicting Values and
Conceptions of Rights and Justice, 73 Chi.-Kent L. Rev. 351, 352 (1998)(“[F]or
Wagner, therefore, the right to organize and bargain collectively was ‘at the bottom of
social justice for the worker.’ The Act that bears his name was not neutral as between
individual and collective bargaining; it expressly and intentionally encouraged
collective bargaining. The Act promised a protected opportunity for workers to
challenge the unilateral power of their employers and, through power-sharing, to
participate in making the decisions that affect their workplace lives.” (quoting James A
Gross, Conflicting Statutory Purposes: Another Look at Fifty Years of NLRB Law
Making, 39 Indus. & Lab. Rel. Rev. 7, 10 (1985)).
10
See Steven Pearlstein, Workers' Rights Are Being Rolled Back, Washington Post,
February 24, 2004 at E01(“Over the years, [the right to form unions and bargain
collectively] has been whittled away by legislation, poked with holes by appeals courts
and reduced to irrelevancy by a well meaning bureaucracy that has let itself be
intimidated by political and legal thuggery”); See also Bruce A. Miller, Workers’ Free
Choice – An Unrealized Promise, 54 Wayne L. Rev. 869, 871 (2008); Fleming, supra
note 3 (arguing that the “Act has been twisted into a vehicle to thwart unionization
through delay and intimidation.”); See also Gross, supra note 7 at 354-55 (arguing that
“labor never came close to achieving the system of industrial democracy envisioned by
Senator Wagner and the law that bears his name. The national labor policy toward
unionism and collective bargaining for most of the last thirty years has shifted from
encouragement and support to indifference or hostility.”).
11
See David Brody, New Strategies, How the Wagner Act became a Management
Tool, New Labor Forum (Spring 2004)(arguing that “the law serves today as a bulwark
2014]
UNPROTECTED PROFANITY
3
The unique culture of industrial life and the high-stakes game of
collective bargaining require a distinct set of laws to govern the
relationships between employers and employees and ensure equality at the
bargaining table.12 In Bettcher Manufacturing Corporations, 76 N.L.R.B.
526 (1948), the National Labor Relations Board (“NLRB” or “Board”),
first recognized that employees must be granted significant latitude with
regard to their freedom to express grievances, including statements to
employers that may be offensive or unflattering, in order preserve the
bargaining process and employee participation in negotiations.13 For the
thirty years immediately following Bettcher Manufacturing, nearly all
employee speech was protected if it was said while engaging in concerted
activity,14 had a fair nexus to the collective bargaining process, and did not
of the ‘union-free environment’ that describes nine-tenths of our private sector
economy”); see also Gross, supra note 7 at 355 (claiming that since 1970, the decisions
of the NLRB “have protected management from union-imposed limits on its freedom
to manage and strengthened the managerial authority of employers who already had
great power over their employees.”).
12
CKS Tool & Eng’g, Inc., 332 N.L.R.B. 1578, 1586 (1962)(stating that in the
context of labor negotiations, however, employees are generally entitled to use
‘accusatory language’ that is ‘stinging and harsh.’; Am. Tel. Co. v. N.L.R.B., 521 F.2d
1159, 1161 (2nd Cir. 1975)(finding that “a certain amount of salty language and
defiance will be tolerated in bargaining sessions with respect to grievances, in
recognition . . . ‘that passions run high in labor disputes and that epithets and
accusations are common place’”)(quoting Crown Central Petroleum Corp. v. N.L.R.B.,
430 F.2d 724, 731 (5th Cir. 1967); Linn v. United Plant Guard Workers, 383 U.S. 53
(1966)(recognizing that during labor disputes both the employers and employees speak
candidly about their respective positions); Piper Realty Co., 313 N.L.R.B. 1289
(1994)(explaining the unique balance courts seek to achieve between employees rights
and the rights of employers to maintain respect and order); Consol. Diesel Co. v.
N.L.R.B., 263 F.3d 345 (4th Cir. 2001)(stating “[there] would be nothing left of [the
Act’s] rights if every time employees exercised them in a way that was somehow
offensive to someone” they could be discharged).
13
Bettcher Manufacturing, 76 N.L.R.B. 526, 527 (1948).
14
Myers Industries, 268 N.L.R.B. 493, 497 (1984). In order for employee activity to
be concerted it must be engaged in with or with the authority of other employees, not
by and on behalf of the employee himself. Id. Concerted activity includes
“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 selforganization.” Holling Press Inc., 343 N.L.R.B. 301, 302 (2004)(dismissing the
complaint because the charging party’s actions were “individual in nature”).
Employees do not have to accept the individual's call for group action before the
invitation itself is considered concerted. Cibao Meat Products, 338 N.L.R.B. 934, 934
(2003); Accord Whittaker Corp., 289 N.L.R.B. 933, 934 (1988); El Gran Combo, 284
N.L.R.B. 1115, 1117 (1987). “[C]oncertedness . . . can be established even though the
individual [speaking] was not ‘specifically authorized’. . . to act as a group
spokesperson for group complaints.” Herbert F. Darling, Inc., 287 N.L.R.B. 1356, 1360
4
THE LABOR & EMPLOYMENT LAW FORUM
[Vol. 4.1
escalate to acts of physical violence.15 Speech might be offensive, even
profane, but it was still protected by the NLRA16 and employees could not
lawfully be disciplined for it.17
In 1979, there was a significant shift in the scope of legal protection
afforded to offensive employee speech.18 In Atlantic Steel Company, the
NLRB drew a distinction between the tests used for determining when an
employee’s remarks are protected based on the type of concerted activity
the employee is engaged in when the comments are made.19 A line was
drawn between employees20 engaged in union activities such as grievance
handling, bargaining, or other union business, and general concerted
activities outside the scope of union business.21 Employee speech said
while engaged in, or having a close nexus to concerted union activity,
remained under the highly-protective umbrella of the Bettcher
Manufacturing standard.22 However, an employee engaging in general
concerted activity now forfeited his or her rights under the Act if the
employee’s speech failed the new balancing test the NLRB articulated in
Atlantic Steel.23
Following the decision in Atlantic Steel, the
implementation of a balancing test has resulted in an inconsistent
application of the law, yielding little predictive value.24 More importantly,
(1988). Concerted activity includes concerns that are a “logical outgrowth” of group
concerns. Salisbury Hotel, 283 N.L.R.B. 685, 687 (1987); Accord Compuware
Corporation, 320 N.L.R.B. 101, 103 (1995).
15
See discussion infra notes 45-55 and accompanying text.
16
See Thor Power Tool, 148 N.L.R.B. 1379, 1380 (1964), enf’d. 351 F.2d 584 (7th
Cir. 1965)(finding an employee's characterization of his superintendent as a “horse's
ass,” immediately after a contentious grievance meeting, was part of the res gestate of
the meeting and was therefore protected under the Act).
17
Id.
18
Atlantic Steel Co., 245 N.L.R.B. 814, 816 (1979)(creating a new test for
determining when employee speech is protected).
19
Id.
20
Marico Enterprises, Inc., 283 N.L.R.B. 726, 731 (1987)(recognizing the protective
standard applies to either shop stewards or others who are both union officials and
employees of the company engaged in union activities).
21
Id.
22
Id.; see also Hawaiian Hauling Services, 219 N.L.R.B. 765, 765
(1975)(articulating the standard “governing employer conduct when dealing with
employees during collective bargaining”).
23
Atlantic Steel, 245 N.L.R.B. at 816 (stating “[t]he decision as to whether the
employee has crossed the line depends on several factors: (1) the place of discussion;
(2) the subject matter of 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.”).
24
Cf. Waste Mgmt. of Ariz., 345 N.L.R.B. 1339, 1340, 1353-54 (2005)(finding no
protection under the Act, even when the discussion was about unfair wage alterations,
because the employee engaged in an unprovoked tirade, used repeated profanity in
front of witnesses, would not comply with the employer’s request to move the
2014]
UNPROTECTED PROFANITY
5
the courts seem increasingly less apt to protect speech, perceived as
offensive by the employer, even in the privacy of an office, away from the
production floor, or when provoked by an employer’s own unfair labor
practice.25
Recently, in Media General Operations, Inc. v. N.L.R.B., 560 F.3d 181
(4th Cir. 2009), the Fourth Circuit blurred the line between the Bettcher
and Atlantic Steel tests, bringing the Atlantic Steel impatience with
profanity into a true Bettcher context.26 Applying the Atlantic Steel
balancing test, the court overturned the NLRB’s decision, to protect
employee speech, by concluding that an employer did not violate the
NLRA27 when it discharged an employee who, while engaged in concerted
activity related to collective bargaining, referred to the Vice President of
the Company, as a “stupid fucking Moron.”28 By rejecting the NLRB’s
decision, the court chose not to give the Board’s decision the broad
deference normally afforded to such determinations and improperly applied
the Atlantic Steel balancing test.29
discussion into an office, and made threats toward a supervisor); Daimler-Chrysler
Corp., 344 N.L.R.B. 1324 1328-30 (2005)(finding no protection, though the discussion
concerned scheduling a grievance meeting, where cursed repeatedly calling his
supervisor an “asshole” in front of fellow employee’s and approached his supervisor in
an intimidating manner); N. Am. Refractories Co., 331 N.L.R.B. 1640, 1642-43
(2000)(finding no protection even though and employee was engaged in concerted
activity when he called his supervisor a “stupid mother fucker” in front of ten other
employees) with Severance Tool Indus., Inc., 301 N.L.R.B. 1166, 1170(1991)(holding
that rude, vulgar, and disruptive language was protected when the remarks were made
in response to threats against the union); Alco, Inc., 352 N.L.R.B. 1222, 2008 WL
4056272 *1226 (N.L.R.B. Aug. 29, 2008)(concluding that an employee was protected
by the Act when he referred to him supervisor as a “egotistical fucker” because it was a
single outburst).
25
See discussion infra notes 127-28 and accompanying text.
26
See discussion infra note 117 and accompanying text.
27
Media Gen. Operations, Inc. v. N.L.R.B., 560 F.3d 181, 189 (4th Cir. 2009).
28
Id. (King J., dissenting).
29
See N.L.R.B. v. Truck Drivers Union, 353 U.S. 87, 96 (1957)(noting “[t]he
function of striking [a] balance [between the conflicting interests of employers and
employees] to effectuate national labor policy is often a difficult and delicate
responsibility which Congress committed primarily to the [Board], subject to limited
judicial review.”); See, e.g., Auciello Iron Works v. N.L.R.B., 517 U.S. 781, 787-88
(1996)(concluding that reviewing courts must give “considerable deference” to the
Board “by virtue of its charge to develop national labor policy”); N.L.R.B. v. Yeshiva
Univ., 444 U.S. 672, 691 (1980)(observing that “we accord great respect to the
expertise of the Board when its conclusions are . . . consistent with the Act”);
Smithfield Packing Co. v. N.L.R.B., 510 F.3d 507, 515 (4th Cir. 2007)(finding an
obligation to defer to Board decisions “where it has chosen ‘between two fairly
conflicting views, even [if we] would justifiably have made a different choice had the
6
THE LABOR & EMPLOYMENT LAW FORUM
[Vol. 4.1
This Note will examine the potential impact of the Fourth Circuit’s
decision in Media General. Part I of this Note will first analyze the
NLRB’s decision in Bettcher Manufacturing. Specifically focusing on the
purposefully protective standard adopted in that case for evaluating
whether the Act safeguards an employee’s use of accusatory language,
while the employee is engaged in concerted activities related to collective
bargaining. Part I will continue by evaluating the cases decided during
thirty years between Bettcher Manufacturing and Atlantic Steel. These
cases will demonstrate that the NLRB and the courts afforded employees
considerable latitude with regard to their use of profanity during the
collective bargaining or grievance handling process. Next, Part I will
examine Atlantic Steel and illuminate how the decision drew a distinction
between when the highly-protective Bettcher test is applied versus the
newly articulated balancing test, based on the type of concerted activity.
This distinction provides the opportunity for the NLRB and the courts to
begin finding employee speech unprotected. Part I will conclude with a
study of how the balancing test has been applied in the thirty years
following the Atlantic Steel decision, demonstrating the court’s increasing
unwillingness to protect profanity. Part II of this Note will show how the
Media General case constitutes a blurring of the line drawn in Atlantic
Steel, by applying the balancing test to profanity said while engaged in
concerted activity, having a close nexus to collective bargaining. Finally,
Part III of this Note concludes that the Fourth Circuit’s application of the
Atlantic Steel balancing test to a Bettcher-type case sets a worrisome
precedent that threatens to undermine the fundamental principles of the
NLRA. The Note ultimately argues that the court’s misuse of the Atlantic
Steel balancing test in a true Bettcher context will, if widely adopted, lead
to a diminution in the protection afforded to employee speech said during
collective bargaining. This has the potential to undermine the bargaining
process by escalating the power inequality between employers and
employees during bargaining and concomitantly depriving bargaining unit
employees the zealous representation the Act contemplates.
I.THE RIGHTS OF EMPLOYEES FREELY TO EXPRESS
GRIEVANCES
A. Employee Rights under the National Labor Relations Act
The NLRA sets standards to ensure that employees who participate in
collective action in the workplace do not suffer unwarranted
matter been before [us] de novo.’”)(quoting Universal Camera Corp. v. N.L.R.B., 340
U.S. 474, 488 (1951)).
2014]
UNPROTECTED PROFANITY
7
discrimination.30 At a minimum, employers may not interfere with, or
retaliate against, an employee engaged in concerted activity protected by
Section 7 of the Act.31 The Act provides a process for enforcement.32
Section 7 of the NLRA guarantees employees the right to self-organize
and protects employees engaged in activities in the furtherance of
collective bargaining.33 Section 8 of the NLRA describes certain proscribed
employer conduct, defining it as an unfair labor practice, and provides for
judicial enforcement and remedy.34 Section 8(a)(1) of the Act states that it
is an unfair labor practice for an employer to “to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in section 7.”35
Section 8(a)(3) of the Act states that it is an unfair labor practice for an
employer “by discrimination in regard to hire or tenure of employment or
30
The National Labor Relations Act, 29 U.S.C. § 151(recognizing that “[e]xperience
has proved that protection by law of the right of employees to organize and bargain
collectively safeguards commerce from injury, impairment, or interruption, and
promotes the flow of commerce by removing certain recognized sources of industrial
strife and unrest, by encouraging practices fundamental to the friendly adjustment of
industrial disputes arising out of differences as to wages, hours, or other working
conditions, and by restoring equality of bargaining power between employers and
employees.”
31
29 U.S.C. § 158. (Stating that “[i]t shall be an unfair labor practice for an
employer-(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 157 of this title;
(2) to dominate or interfere with the formation or administration of any labor
organization or contribute financial or other support to it . . .
(3) by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor
organization . . . ;
(4) to discharge or otherwise discriminate against an employee because he has filed
charges or given testimony under this subchapter;
(5) to refuse to bargain collectively with the representatives of his employees,
subject to the provisions of section 159(a) of this title.”
32
Id.; see Millspaugh, supra note 5 at 678-79 (describing the National Labor
Relations Board “as the permanent central administrative agency for implementing the
terms and policies of the Act.”)
33
29 U.S.C. § 157. (Stating “[e]mployees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and shall also have the right to
refrain from any or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condition
of employment as authorized in section 8(a)(3).”
34
See generally 29 U.S.C. §160(e)&(f)(according the Board exclusive jurisdiction
over unfair labor practices, and setting forth the procedure of the NLRB, including the
review and enforcement of Board orders).
35
29 U.S.C. § 158(a)(1)(2006).
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[Vol. 4.1
any term or condition of employment to encourage or discourage
membership in any labor organization.”36
B. The Establishment of an Open Exchange between Employers
and Employees
In the years following the enactment of the NLRA, the NLRB was faced
with the challenge of interpreting the broad language of the Act37 in order
to create laws that balanced the legitimate interests of both employers and
employees, to facilitate employee organization and collective bargaining.38
In 1948, the NLRB issued a seminal decision protecting an open
exchange of views between employers and employees while participating
in the collective bargaining process.39 In Bettcher Manufacturing the
NLRB affirmed the Trial Examiner’s finding that a Company’s discharge
of an employee, based on remarks made at the bargaining table, was
unlawful and in violation of Section 8(a)(3) and (1) of the Act.40
In this case, a group of employees organized a grievance committee in
order to help lobby for an increase in wages.41 At a bargaining conference,
the president of the Company offered to increase wages by seven-cents per
hour, claiming that the Company could not offer more because of financial
trouble.42 In response to this offer, one employee at the bargaining session
publicly accused the president of lying about company finances.43
36
29 U.S.C § 158(a)(3).
See Julius G. Getman, The National Labor Relations Act: What Went Wrong; Can
We Fix It? 45 B.C. LAW REV. 125, 126 (2003)(Stating that shortly after the enactment
of the NLRA it “became obvious that the Board was performing the function of an
adjudicatory body—applying or interpreting general language, developing doctrine,
and finding facts”).
38
See Stoddard-Quirk Mfg. Co., 138 N.L.R.B 615, 619-20 (1962)(balancing the
employers’ interest in maintaining order and avoiding hazards with the employees’
interest in distributing written literature finding that employer rules that prohibit
distribution of literature in working areas are valid while those that prohibit oral
solicitation during non-work time are invalid); Supreme Optical Co. Inc., 235 N.L.R.B.
1432, 1433, fn. 9 (1978)(noting “a balancing of the employee interest in protecting
each other against the employer’s interest in efficiently operating his business is
required”); See also Calvin M. Sharpe, “By Any Means Necessary”-- Unprotected
Conduct and Decisional Discretion Under the National Labor Relations Act, 20
Berkley J. Em. & Lab. L. 203, 253 (1999)(stating that statutory rights “operated on a
delicate balance between legitimate employer concerns and statutory protection”).
39
Bettcher Manufacturing Corp., 76 N.L.R.B. 526, 527 (1948).
40
Id. at 526.
41
Id. at 532.
42
Id. The employees held there meetings at a tavern, there is evidence that they
were drinking and acting in a disorderly fashion. Id.
43
Id. at 533. After the employee meeting, the petitioner and the President met again
where the President scolded the petitioner for his remarks after which the respondent
37
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UNPROTECTED PROFANITY
9
Although the trial court was unsure of the exact language used by the
petitioner, the trial examiner found that the petitioner “stated in substance
that he did not believe that the respondent was losing money as [the
President] asserted, because [he] had a habit of taking expensive vacation
trips.”44 A week later the petitioner was called into the President’s office
and discharged for “calling him a ‘crook and a liar.’”45 The discharged
employee subsequently filed an unfair labor practice charge, arguing his
remarks were made while he was engaged in a concerted activity related to
collective bargaining and, therefore, was discharged in violation of Section
8 of the NLRA.46
The Board held that the Company violated Section 8(a)(3) of the Act by
discouraging membership in the grievance committee,47 along with Section
8(a)(1) by interfering, restraining, or coercing an employee in the exercise
of his Section 7 rights.48 The Board referenced the unique culture of
industrial life,49 reasoning that for the process of collective bargaining to be
successful, a candid exchange between employers and employees is
required.50 In its decision the NLRB stated, “[t]he negotiators must be free
not only to put forth demands and counter-demands, but also to debate and
challenge the statements of one another without censorship, even if, in the
course of debate, the veracity of one of the participants occasionally is
brought into question.”51 The Board, however, clarified that these broad
protections do not give an employee ultimate freedom to say or do anything
while engaged in the bargaining process without fear of repercussions.52
Specifically, the Board drew a distinction between employees engaged in
concerted activity who spontaneously exceed the bounds of lawful conduct
and those flagrant cases in which the misconduct is so violent or of such
stood by his previous comments stating “that books could be manipulated to show
loss.”
44
Id.
45
Id. (testifying that “[the petitioner’s] employment was terminated purely and
simply because he intimated that I was a liar and that I manipulated my books and for
no other reason.”).
46
Id. at 530.
47
Id. at 528.
48
Id.
49
Id. at 527.
50
Id. (stating “a frank, and not always complimentary, exchange of views must be
expected and permitted . . . if collective bargaining is to be natural rather than stilted.”);
See also Alexander R. Heron, “Collective Bargaining in Action: An Employer’s View,”
Bureau of National Affairs Inc., Collective Bargaining Negotiations and Contracts,
10:101 (referring to the process of negotiation as a way to establish employer-employee
relationships).
51
Id. at 537.
52
Id. at 527.
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serious nature as to render the employee unfit for further service.53
There were two underlying policy rationales that led the Board to its
decision in Bettcher Manufacturing. First, if an employer were free to
discharge employees whenever they found a comment or action to be
offensive, employers would have a disproportional influence in the
bargaining process.54 Second, there is the potential for the bargaining
process as a whole to breakdown because employees would fear that, if
they get directly involved in negotiations, they might be terminated because
of what they say during the bargaining process.55 This decision was a
turning point for employee rights in the collective bargaining process.56
Bettcher Manufacturing in essence, prevented employers from using the
threat of termination for an employee’s use of accusatory language as a
mechanism to thwart the collective bargaining process.57 Only “flagrant
cases,” in which the misconduct is “so violent and of such a serious nature
as to render the employee unfit for further service,”58 fall outside Bettcher
Manufacturing’s broad protections.
C. The Thirty-Year Protection of Profanity
After Bettcher Manufacturing the applicability of NLRA protections was
determined almost exclusively by inquiring into whether the employee’s
questionable conduct took place in the context of concerted activity related
to collective bargaining.59 If employees were engaged in such concerted
activity, they were protected by the Act as long as their conduct did not
reach the violent, flagrant nature articulated in Bettcher Manufacturing.60
53
Id. at 527 (quoting N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 815 (C. C. A. 7
1946)); see Gross, supra note 7 at 355 (stating that “[t]he Act promised a protected
opportunity for workers to challenge the unilateral power of their employers and,
through power-sharing, to participate in making the decisions that affect their
workplace lives.”).
54
Id. at 527 (finding that employees would be left with no equivalent “method of
retaliation”).
55
Id.
56
See discussion infra notes 69 & 70 and accompanying text.
57
Id.
58
Bettcher Mfg., 76 N.L.R.B. at 527.
59
See Thor Power Tool Co., 148 N.L.R.B. at 1380, enf’d. 351 F.2d 584 (7th Cir.
1965) (finding that a union committeeman was protected by the Act when he called the
plant superintendent a “horses’s ass” during the discussion of an employee’s grievance,
because the activity was “part of the res gestae of the grievance discussion”); but see
Calmos Combining Co., 184 N.L.R.B. 914 (1970) (holding that a shop steward who
shouted “I don’t give a damn what you say, ill shout all I want to” after a grievance
discussion had been completed, was not protected because his “continued intransigence
[sic] was not a part of the res gestae of the grievance discussion”) (citing Thor, supra).
60
See Allied Aviation Fueling of Dallas, 347 N.L.R.B. 248, 253 (2006) (stating that
“for an employee to forfeit the protection of the Act while processing a grievance, ‘the
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The NLRB and the courts seldom found the disputed conduct was so
“flagrant.”61
The NLRB articulated the distinction between actual concerted activity
and the mere assertion of protected conduct.62 Bettcher-type protection
requires a close nexus between the employee’s unflattering conduct and
union activities, such as the bargaining and grievance handling process.63
In Golden Nugget, Inc., the NLRB rejected the notion that the simple
“assertion of protected activity”64 guarantees an employee protection.65
There, the NLRB found that an employee was lawfully discharged after
four incidents of “flagrant insubordination.”66 The employee argued that
he was discharged based on his activity in the union, claiming it stemmed
from a letter he posted attacking new work rules,67 and referring to the
director as being a “bullshitter and treacherous.”68 The NLRB reasoned that
in order to preserve discipline and order in the workplace, employee
protection must be based on more than “scant evidence and repeated
inference[s]” as to a connection with concerted activity related to collective
bargaining or grievance handling.69
Despite the evidentiary burden employees must overcome, once
employee's behavior must be so violent, or of such an obnoxious character, as to render
him wholly unfit for further service.’”) (quoting Clara Barton Terrace Convalescent
Center, 225 N.L.R.B. 1020, 1034 (1976)).
61
See Am. Tel. Co,, 211 N.L.R.B. 782, 783 (1974) (stating “we have long
recognized that the disagreements which arise in the collective-bargaining setting
sometimes tend to provoke commentary which may be less than mannerly, and that the
use of strong language in the course of protected activities supplies no legal
justification for disciplining or threatening to discipline an employee acting in a
representative capacity, except in the most flagrant or egregious of cases.”); see also S.
Bell Tel. Co., 260 N.L.R.B. 237, 240 (1982) (recognizing that employees who have
been elected or selected by the union to represent the resolution of grievances are
protected for “conduct, attitudes, and statements which might not otherwise be
protected” unless so flagrant as to interfere with an employer’s ability to maintain
order).
62
See Golden Nugget, Inc., 215 N.L.R.B. 50, 53 (1974) (finding that extended
organizing activities by an employee does not shield him from all discharge).
63
See Marico Enterprises, 283 N.L.R.B. at 731-32.
64
Golden Nugget, Inc., 215 N.L.R.B. at 52.
65
Id. at 52. (stating that just because an employee is pro-union does not
automatically mean their discharge is unlawfully discriminatory).
66
Id. at 51 (including refusing to properly deal cards, and not completing what was
required of him as a “stick man” on a dice table).
67
Id.
68
Id. However, it is undisputed that the President of the Company was unaware of
the letter at the time of the employee’s discharge. Id.
69
Id. at 53 (quoting N.L.R.B. v. Blue Bell, Inc., 219 F.2d 796, 798 (C.A. 5, 1955);
see also N.L.R.B. v. Fibers Int’l Corp., 439 F. 2d 1311 (1971), denying enforcement in
part 181 N.L.R.B. 731.
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employees were successful in demonstrating that they were engaged in
concerted activity closely related to collective bargaining, a court applying
Bettcher Manufacturing invariably found any accusatory or offensive
statements not to be “flagrant” and, thus, protected.70 For example, in
Ryder Truck Lines Inc., the NLRB stated “while employees are engaged in
collective bargaining, including the presentation of grievances, they are
essentially insulated from discipline for statements made to management
representatives which, if made in other contexts, would constitute
insubordination.”71 The Board’s continued to stress that this highlyprotective standard is necessary to preserve an equal balance of power
during the entire collective bargaining process, even in informal grievance
resolutions.72
D. Atlantic Steel Co.: A Line is Drawn
After thirty years of a unitary, highly-protective rule, the NLRB drew a
distinction between the protection afforded to employee speech based on
the context of the employee’s concerted activity.73 In Atlantic Steel the
Board distinguished between two types of concerted activity: (1) offensive
employee speech said during or having a close nexus to union activity and
(2) general concerted activity outside the realm of union business.74 This
distinction narrowed the protection afforded to employee speech not
closely related to the bargaining or grievance handling process.
Specifically, the Board articulated a new balancing test75 for determining
when employee speech – not closely related to bargaining or grievance
70
See Hawaiian Hauling Service, 219 N.L.R.B. at 766 (stating that the standard set
forth in Bettcher Manufacturing has “since been uniformly followed by the Board.”).
71
Ryder Truck Lines, Inc., 239 N.L.R.B. 1009, 1011 (1978).
72
Id. (emphasizing the importance of extending protection in informal grievance
settings, stating “[u]nless employees are assured that they will be treated as equals
when engaged in the informal resolution stage and that they will be free from discipline
for freely speaking their minds, they will be discouraged from seeking informal
resolutions”); see Crown Cent. Petroleum Corp., 177 N.L.R.B. at 323, fn 6 (1976)
(enf’d, 430 F.2d 724 (1970)) (holding “[t]he relationship at a grievance meeting is not a
"master-servant" relationship but a relationship between company advocates on one
side and union advocates on the other side, engaged as equal opposing parties in
litigation. To permit an employer to exercise the power of discharge, where the union
has no parallel method of retaliation, solely on the basis that a steward in the
employer's view is not telling the truth, would destroy that essential relationship.”).
73
See Sam’s Club, A Division of Wal-Mart Stores, Inc., 349 N.L.R.B. 1007, 1009
(2007) (distinguishing the protective standard used when employee remarks are made
during or immediately proceeding a grievance meeting, from that used when comments
are not directly related to the grievance itself).
74
Id.
75
Atlantic Steel, 245 N.L.R.B. at 816.
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handling – is so egregious that it no longer is protected by the NLRA.76
In Atlantic Steel an employee was discharged for “unwarranted
insubordination.”77 While on the production floor during normal business
hours, the employee asked his supervisor about the assignment of overtime
hours to a probationary employee.78 The supervisor answered the
employee’s question.79 While the supervisor was walking away, the
employee referred to the supervisor as a “lying son of a bitch”80 to a fellow
employee.81
Overhearing this statement, the supervisor called the
employee into his office and suspended him pending discharge.82 After the
employee was discharged, he filed an unfair labor practice charge with the
Board, and the Regional director issued a complaint.83
In its decision, the NLRB agreed with the Administrative Law Judge’s
(“ALJ”)84 finding that the employee’s comments were made in relationship
to overtime hours - a condition of employment – and, as such, constituted
general concerted activity.85 Although the Board conceded that the subject
matter of discussion could be sufficient to establish the employee was
engaged in concerted activity,86 it found that the place in which the
comments were made were particularly disruptive to the workplace.87
Specifically, the Board held that employee comments made on the
production floor88 would not be per se protected as would be an impulsive
outburst during the heat of a grievance proceeding or contract
negotiations.89 The NLRB went on to caution, “even an employee who is
76
See Marco Enterprises, 283 N.L.R.B. at 731-32.
Atlantic Steel, 245 N.L.R.B. at 814.
78
Id. at 818. The employee was concerned that a probationary employee was given
overtime hours before he was, even though he had seniority status. Id. at 814.
79
Id. at 818.
80
Id. at 814. There is a question about whether the employee called the supervisor a
“lying son of a bitch” or a “lying mother-fucker”. Id.
81
Id.
82
Id. The employee argued that the supervisor was consistently harassing him for
passing out information about benefits and taking too much time in the restroom. Id.
83
Id. at 818.
84
After an unfair labor practice complaint is filed, the case is heard by and ALJ who
issues an opinion. If a party does not agree with the decision, it may appeal to the
Board by filing exceptions to the ALJ’s award. Higgins, supra note 9 at 2655.
85
Atlantic Steel, 245 N.L.R.B. at 816.
86
Id.
87
Id.
88
Id. (observing that it had never before encountered a case where the employee’s
comments were made on the production floor).
89
Id; but see Huttig Sash & Door Co., Inc., 154 N.L.R.B. 1567, 1571 (1965)
(finding an employer’s discharge of an employee who told a supervisor that he wasn’t
“worth a shit” was unlawful, when the remarks were made on the manufacturing floor
because they were with regards to a grievance of the Company’s unfair labor practice).
77
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engaged in concerted protected activity can, by opprobrious conduct, lose
the protection of the Act.”90 The Board then established a four-factor
balancing test to determine when an employee loses protection of the
NLRA due to offensive speech: (1) the place of discussion; (2) the subject
matter of discussion; (3) the nature of the outburst; and (4) whether the
outburst was provoked by an employer’s unfair labor practice.91 Balancing
these four factors, the NLRB found that the employee in Atlantic Steel lost
the protection of the Act when he “reacted in an obscene fashion without
provocation and in a work setting where such conduct was not normally
tolerated.”92
An analysis of the Atlantic Steel case would be incomplete without
noting that it did not involve collective bargaining or a union
representative’s effort to resolve a represented employee’s grievance.93 In
other words, it was not a Bettcher-type case.94 However, the Board did not
explicitly limit the four-part Atlantic Steel test to non-Bettcher cases.95
Indeed, by adding factor two—the subject matter of discussion—Atlantic
Steel seemed to anticipate that the test would apply to Bettcher-type cases,
providing an opportunity for the NLRB and courts to find Bettcher-type
speech unprotected.96
E.
The Balancing Act: When NLRA Protection is Lost
After the creation of the Atlantic Steel balancing test, there has been little
consistency concerning what constitutes behavior so egregious as to forfeit
the protection of the Act.97 The ultimate decision turns on how the courts
choose to weigh each of the four factors.98 This inconsistency leaves
employees uncertain as to what activities will be afforded the Act’s
protection, and what activities will leave them vulnerable to retribution by
their employer.99 Following Atlantic Steel, courts seem increasingly less
willing to permit profanity, in the context of general concerted activity,
even when it takes place in the privacy of an office, away from the
90
Atlantic Steel, 245 N.L.R.B. at 816.
Id.
92
Id. at 817.
93
Id. at 816.
94
Bettcher Mfg, 76 N.L.R.B. at 526.
95
Atlantic Steel, 245 N.L.R.B. at 816.
96
See U.S. Postal Service, 251 N.L.R.B. 252, 259 (1980), enf’d 652 F.2d 409 (5th
Cir. 1981) (stating that “in a recent decision, the Board held that it would examine four
factors in determining whether an employee’s conduct at a grievance meeting would
result in the loss of protection of the Act.”) (citing Atlantic Steel, 245 N.L.R.B. 814
(1979)).
97
See supra note 15 and accompany text.
98
Id.
99
Id.
91
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production floor, or when provoked by and employer’s own unfair labor
practice.100
For example, in Trus Joist MacMillan,101 the Board found that the
respondent did not violate Section 8(a)(3) and (1) of the Act by discharging
employee, Roger Harris, in response to his “offensive outburst” during a
meeting with his plant manager.102 Harris worked as a “quality assurance
technician” under the supervision of Dane Moore.103 Preceding the
meeting in which Harris’s “offensive outburst” took place, he learned that
Moore had been discharged for refusing to give Harris an unwarranted
evaluation downgrade because of Harris’s prominent union activities.104
Upset by this, Harris requested a meeting with the plant manager to ask
for an explanation about Moore’s discharge,105 planning on calling him a
“liar” if he declined to give Harris a reason.106 During the meeting the
plant manager refused to give an explanation because of “confidentiality
concerns.”107 Harris called the plant manager a “a liar, a lying bastard, and
a prostitute.”108 Shortly after, Harris was terminated for insubordination.109
The Board held that, although Trus Joist MacMillan violated Section
8(a)(1) of the Act for discharging Moore under the in ordinary
circumstance, Harris forfeited the protection of the Act through his
egregious conduct.110 Using the Atlantic Steel balancing test, the Board
subjectively weighed the four factors and found that Harris’s behavior lost
protection of the Act.111
With respect to the first Atlantic Steel factor - the place of discussion the Board generally finds remarks made in private settings are less
disruptive to workplace discipline than those made in the presence of other
employees and are, therefore, more likely to be protected.112 Even though
100
See discussion infra notes 126-28 and accompanying text.
341 N.L.R.B. 369 (2004).
102
Id.. at 369 (2004).
103
Id.
104
Id.
105
Id. at 370.
106
Id.
107
Id.
108
Id. Although Harris denies it, there was testimony that during the meeting Harris
also purposely grabbed his crotch saying “something to the effect of, I have your
manhood hanging right here.” Id.
109
Id.
110
Id. at 369.
111
Id. at 370.
112
Compare Nobel Metal Processing, 346 N.L.R.B. 795, 800 (2006) (finding place
of discussion weighs in favor of protection where the outburst occurred away from
employees’ work area and did not disrupt the work process) with Waste Management
of Arizona, Inc., 345 N.L.R.B. 1339, 1340 (2005)(finding no protection when an
101
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the incident in Trus Joist MacMillan took place in the human resource
manager’s office away from the plant floor, the Board found that this factor
neither weighed in favor of nor against Harris.113 The NLRB reasoned that
the fact that the incident had occurred in front of multiple managers
“exacerbate[d] the disruptive effect of Harris’ outburst.”114
The Board went on to analyze the other three factors.115 Reasoning that
the official purpose of the meeting was to complain about Moore’s
discharge, the Board determined that the subject matter “involved a the
matter of the right of employees to engage in protected union activity and
the unlawful removal of a supervisor who refused to violate this right.”116
It found, therefore, and that the second Atlantic Steel factor weighed in
favor of affording NLRA protection to Harris’ statements.117
On the other hand, the Board found that third Atlantic Steel factor - the
nature of the outburst - weighed heavily against affording Harris’s
statements the NLRA’s protection.118 Although, Harris’s remarks were not
threatening and were contained to a single spontaneous outburst119 , the
Board held that Harris’s “vituperative personal attack, with foul language
and obscene gestures”120 was outside of what an employer can be expected
to tolerate.121
Finally, the Board held that the fourth factor - provocation by an
employee cursed repeatedly before other employees, refusing his supervisor’s request
to move the conversation into his private office).
113
Trus Joist MacMillan, 341 N.L.R.B. at 370 (stating “[i]n one respect the locus of
Harris’ outburst was one that would have a less disruptive effect than it would have if it
had occurred on the plant floor, in the presence of employees. However, in another
respect, the locus accentuated and exacerbated the insubordinate nature of Harris’
offensive outbursts.”).
114
Id. (noting that it was Harris’s intent to embarrass the plant manager).
115
Id. at 370-71.
116
Id.
117
Id.
118
Id. at 371.
119
See Diamler-Chrysler Corp., 344 N.L.R.B. at 1640, 1642-43 (2000)(asserting
protection was lost when the profanity involved more than a spontaneous outburst, and
the employee approached his supervisor in an aggressive manner calling him a “stupid
mother fucker”). Generally, precedent indicates that employees should only lose
protection of the Act in serious situations, such as in-your-face confrontation, or
prolonged displays of inappropriate conduct. See Id.
120
Id.
121
Id. (noting that “[e]mployers and employees have a shared interest in maintaining
order in the workplace, an order that is made possible by maintaining a certain level of
decorum. Disorder can have a detrimental impact on morale, productivity, and
discipline.”); But see Stanford N.Y., LLC, 344 N.L.R.B. 558, 558 (2005)(finding that
“[t]he relatively secluded room” where the unfavorable conduct happened weighs in
favor of the Act’s protection).
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employer’s unfair labor practice - to be neutral.122 Usually, if the
employee’s offensive comments are made in response to an employer’s
unlawful behavior, the employee retains the protection of the Act.123
However, the Board held that Harris’s conduct was was “not a spontaneous
or reflexive reaction to the news,”124 regardless of the fact that it was in
response to the Respondent’s unlawful discharge of his supervisor. After
weighing the Atlantic Steel factors, the Board determined Harris’s actions
to be outside the scope of the NLRA’s protection.125
The Board has acknowledged that some leeway must be given to
impulsive behavior by employees engaged in concerted activity, but still
maintained that this leeway must be balanced with an employer’s right to
maintain discipline in the workplace.126 Applying the four-part Atlantic
Steel test has allowed the Board and courts to subjectively give weight to
one factor over another, tipping the scales against the protection of
employee speech said while engaged in general concerted activity.127 Trus
Joist MacMillan is a classic Atlantic Steel-type case, which demonstrates
the courts seemingly increasing impatience with profanity.128
II.THE FOURTH CIRCUIT’S ROLE IN THE EROSION OF
EMPLOYEE PROTECTION
In 2009, the Fourth Circuit applied the Atlantic Steel balancing test to
overturn the NLRB decision in Media General Operations v. N.L.R.B..129
The court found that the NLRB erred as a matter of law,130 and held that an
employer did not violate the Act by discharging an employee who, while
122
Trus Joist MacMillan, 341 N.L.R.B. at 371.
See Care Initiatives, 321 N.L.R.B. 144, 152 (1996)(stating “an employer may not
rely on employee conduct that it has unlawfully provoked as a basis for disciplining an
employee”)(quoting N.L.R.B. v. South West Bell Telephone Co., 694 F.2d 974, 978
(5th Cir. 1982)); see also Stanford New York, 344 N.L.R.B. at 559 (holding profanity
was protected when it was in direct response to unlawful threats by a supervisor).
124
Trus Joist MacMillan, 341 N.L.R.B. at 371.
125
Id. at 372.
126
See discussion supra note 73 and accompanying text.
127
Trus Joist MacMillan, 341 N.L.R.B. at 370.
128
Atlantic Steel, 245 N.L.R.B. at 816. Although calling a plant manager “a liar, a
lying bastard, and a prostitute” is not flattering behavior, Harris used this profane and
offensive language during a closed-door meeting, where his intention was to express a
grievance about the Respondent’s unlawful firing of his direct supervisor. Trus Joist
MacMillan, 341 N.L.R.B. at 371.
129
Media General, 560 F.3d at 182.
130
Id.
123
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engaged in concerted activity related to collective bargaining,131 used
obscene language when talking to two of his supervisors in the privacy of
their office.132
Media General involved an employee who filed a grievance challenging
his dismissal as a violation of his rights under 8(a)(1) and (3) of the
NLRA.133 At the time of the employee’s termination, the collective
bargaining agreement between the company, The Tampa Tribune, and the
Graphic Communications Conference of the International Brotherhood of
Teamsters, Local 180 (“the Union”) had recently expired.134 The Company
and Union were going through the rigorous process of renegotiating their
contract.135 While the negotiations were in progress, the Vice President of
the Company circulated a series of six letters to the employees describing
the progress of the negotiations from his perspective.136 In the letters, the
Vice President blamed the Union for the delay in negotiating the new
contract.137
Gregg McMillen, the employee who was later discharged, was one of
many employees who voiced his frustration about the content of the Vice
President’s letters.138 A day after the sixth letter was sent, a visibly upset
McMillen went to the office of two of his supervisors and expressed his
concerns about the letters the Vice President had sent.139
After
complaining about the progress of the negotiations, he stated, “I hope that
[stupid] fucking [moron] doesn’t send me another letter. I’m pretty
stressed, and if there is another letter you might not see me. I might be out
131
Id. at 182-83 Deciding whether an employee’s actions are concerted is always
the first step of determining if they are protected under the act. Id. at 183. Since the
employee’s comments in Media General were “part of an ongoing collective dialogue
between [the Vice President] and the unit employees about the substance and the
process of contract negotiations,” they considered concerted by the ALJ, the Board, and
the Fourth Circuit. Media General Operations, Inc., No.12-CA-24770, at *395, 2007
WL 601571 (N.L.R.B. Feb. 22, 2007).
132
Media General 560 F.3d at 182 (4th Cir. 2009).
133
Id. at 183.
134
Id.
135
Id.
136
Id. There was no dispute about the legality of the letters, Section 8(a)(2) protects
employer speech. Id. at 184.
137
Id. at 184. The first letter stated that the negotiations would could have gone
quickly if it was not for the Union representative. Id. at 190 (King, J., dissenting). The
second and third letter asserted that the Union Representative was acting in an
unprofessional manner and that there could be negative consequences to his actions.
Id. The fourth and fifth letter complained about the slow bargaining process, and the
alleged unavailability of the Representatives. Id. Finally, the sixth letter was a
response to a letter sent by union employees. Id. at 191.
138
Id. at 191 (King, J., dissenting).
139
Id. at 183.
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on stress.”140 Despite McMillen’s apologies,141 the Employer fired
McMillen for “a violation of Pressroom Office Rule 9” a few days later.142
Shortly thereafter, McMillen filed charges with the General Counsel of
the NLRB.143 The General Counsel issued a complaint alleging that the
Company violated Sections 8(a)(1) and 8(a)(3) of the NLRA by
“terminating McMillen as a result of protected concerted activities.”144
This case originally came before the NLRB division of judges, and
Administrative Law Judge (“ALJ”), Joel P. Biblowitz, heard the case.145 In
his opinion, ALJ Biblowitz, balanced the Atlantic Steel factors, holding that
“McMillen’s dismissal was lawful because his statement was so profane
and offensive that it was not protected by the Act.”146
The General Counsel filed exceptions and the Respondent filed crossexceptions with the NLRB to enforce the decision of the ALJ.147 The
NLRB unanimously reversed the decision of the ALJ,148 holding that the
Company’s dismissal of McMillen violated the NLRA.149 The Board
explained that, although McMillen’s comments were regrettable, they were
not so opprobrious as to lose the Act’s protection.150 Agreeing with the
ALJ, the NLRB concluded that the first two factors of Atlantic Steel - place
and subject matter - weighed in favor of affording McMillen NLRA
protections.151 However, the fourth factor - employer provocation - went
against McMillen, as there was insufficient evidence that Media General
unlawfully provoked him.152 Disagreeing with the ALJ, the Board held that
the third factor - egregiousness of the language used - “only weighed
moderately against McMillen retaining the Act’s protection”153 because the
remarks were not made directly to the Vice President and were not
confrontational in nature.154
140
Id. at 192. (King, J., dissenting).
Id. at 184.
142
Id. Pressroom rule 9 makes it a violation to use “‘[t]hreatening, abusive, or
harassing language… disorderly conduct… and all disturbances interfering with
employees at work anywhere in the building.’” Id. at 199.
143
Id. at 183.
144
Id. at 182.
145
Id.
146
Id.
147
Media General, 351 N.L.R.B. 1324, 1324 (2007).
148
Id.
149
Id.
150
Id. at 1325.
151
Id.
152
Id. at 1326.
153
Id. (noting his remarks were not made directly to the Vice President and were not
confrontational in nature).
154
Id.
141
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The Company petitioned the United States Court of Appeals to review of
the NLRB decision,155 and McMillen filed a cross-petition to enforce the
order.156 In a two-one decision, the Fourth Circuit, refused to enforce the
NLRB’s decision.157 The Court found that the Board “erred as a matter of
law [by] concluding that the law protects McMillen’s use of profanity
regarding his employer.”158 When addressing the Atlantic Steel factors, the
court found that the first factor — the place of discussion — weighed in
favor of McMillen, because derogatory remarks were made in a private
office away from other pressroom employees.159 Likewise, the Court found
that the second factor — the subject matter of discussion — weighed in
favor of protection since the obscene language was said in the context the
ongoing contract negotiations.160 Next, the court affirmed the finding of
the ALJ on the third factor — nature of the outburst — stating that the
“lack of concurrence between [] the letter and McMillen’s comment
particularly disfavors protection.”161 Finally, the Fourth Circuit held that
the fourth factor — provocation by an employer’s unfair labor practice —
weighed more than slightly against McMillen.162 The court observed the
significance of the fact that the employer’s distribution of the letter was a
lawful act, distinguishing it from other cases where employee outbursts
were in response to unlawful employer actions.163
Essentially the Fourth Circuit states that if it were to uphold the NLRB’s
decision, it would be expanding the Atlantic Steel test, “creat[ing] a buffer
around employee conduct that would travel with the employee wherever he
goes and for as long as some form of collective bargaining can be said to be
taking place.”164 The court concluded that such a finding would expand the
protection past what the law previously provided and what the Act
intended.165
Judge King dissented,166 arguing that the Court should have affirmed the
NLRB’s decision167 and afforded it the deference required under the law.168
155
Media General, 560 F.3d at 181.
Id.
157
Id.
158
Id. at 182.
159
Id. at 187.
160
Id.
161
Id. (noting the fact that McMillen had not actually read the last letter although he
had been told about its contents).
162
Media General Operations, 560 F.3d. at 181, 188 (distinguishing its decision
from that of the ALJ and the board).
163
Id. at 188. See also discussion supra note 123 and accompanying text.
164
Media General Operations, 560 F.3d. at 189.
165
Id.
166
Id. at 189 (King, J., dissenting).
167
Id. at 189-190.
168
Id.
156
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Judge King agreed with the NLRB’s application of the Atlantic Steel
balancing test, stating that the NLRB’s conclusions were supported by
“‘substantial evidence on the record considered as a whole.’”169 Judge
King further criticizes the weight the court gave to the fact that the
employer’s actions were lawful, stating that the court offers no authority to
support their assertion that this factor should weigh “more than slightly
against the Act’s protection.”170 More importantly, Judge Kings states,
“the majority ignores precedent reflecting that, even where the employee
responded to legal employer activity, the Board can indeed account for the
nature of the employer activity in assessing factor four.”171 Judge King
concludes that the Board’s decision did not expand the protection afforded
under Atlantic Steel, but followed current law.172
III. EMPLOYEE
ELIMINATION
FREE
SPEECH:
DENIGRATION
OR
For the past 30 years, since the Atlantic Steel decision, Bettcher-type
cases remained highly protected.173 On the other hand, courts have been
increasingly less willing to protect speech related to general concerted
activity.174 The Fourth Circuit’s Media General decision represents a
blurring of the line drawn in Atlantic Steel, bringing non-Bettcher
impatience into a true Bettcher context.175 Although one case does not
demonstrate a trend, if courts choose to follow Media General, the
employee protections guaranteed by Bettcher Manufacturing will be
eroded. As a result, employees will have diminished power in the
bargaining process because they will not be able to express their grievances
169
Id. at 190 (stating “put simply, the panel majority today has embarked on an
unjustifiable reach-making de novo findings and conclusions in this case-and
substituted its judgment for a decision reserved by law to the Board. I strongly
disagree and therefore dissent”).
170
Id. at 188.
171
Id. at 195.
172
Id. at 198.
173
See Postal Service, 250 N.L.R.B. 4, 4 (1980) (finding while discussing a possible
grievance, an employee acting as union steward who called a supervisor a “stupid ass”
was protected because the remark occurred during the course of protected activity, and
was part of the res gestae of that activity); see also Success Village Apartments, 347
N.L.R.B. 1065, 1069 (2006) (holding a union shop chairperson's use of crude language
toward management during a meeting to discuss an employee warning was not
“uncharacteristic of the occasionally intemperate conduct engaged in by both
management and union representatives” during such discussions and was thus
protected).
174
See discussion supra notes 126-28 and accompanying text.
175
See discussion infra notes 176-78 and accompanying text.
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without fear of retaliation.176
A.Tipping the Scales of Power Between Labor and Management
Equal bargaining power is essential during the collective bargaining
process.177 The Media General decision seriously erodes that equality in
favor of management by giving employers a potent leverage over
employees during negotiations.178 The company in Media General was
permitted to discharge McMillen for a one-time use of profanity in the
privacy of his supervisor’s office while engaged in concerted activity
related to ongoing collective bargaining.179 There was no threat to
production or discipline,180 the Vice-President referred to was not even
present,181 and no employees overheard McMillen.182 The bargaining
176
See Aladdin Hotel & Casino, 273 N.L.R.B. 270, 273 (1984) (demonstrating an
example of employer retaliation); see also Terry A. Bethel, Constructive Concerted
Activity Under the NLRA: Conflicting Signals from the Court and Board, 59 Ind. L.J.
583, 613 (1984) (emphasizing that in the context of activity related to concerted
activity “[t]he Board’s primary concern should be protecting employee activity from
employer retaliation, not safeguarding employers from embarrassment or protecting
other nonexistent management interests”).
177
See Carol A. Glick, Labor-Management Cooperative Programs: Do they Foster
or Frustrate National Labor Policy? 7 Hof. L.L. J. 219, 224 (1989) (stating that
“collective bargaining, the keystone of the NLRA is premised on an equilibrium
between labor and management”); see also Wagner Act, Pub.L. No. 198, 49 Stat. 449
(1935) (codified as amended at 29 U.S.C. §§ 151-169 (1983)) (envisioning a balance of
bargaining power to ensure industrial peace stating: “[t]he inequality of bargaining
power between employees who do not possess full freedom of association or actual
liberty of contract and employers who are organized in the corporate or other forms of
ownership association substantially burdens and affects the flow of commerce, and
tends to aggravate recurrent business depressions, by depressing wage rates and the
purchasing power of wage earners in industry and by preventing the stabilization of
competitive wage rates and working conditions within and between industries”).
178
See discussion infra notes 199-201 and accompanying text; see also Clyde W.
Summers, Industrial Democracy: America’s Unfulfilled Promise, 28 Clev. St. L. Rev.
29, 29 (1979) (arguing that “democratic principles demand that workers have a voice in
the decisions that control their lives; human dignity requires that workers not be subject
to oppressive conditions or arbitrary actions”).
179
Media General, 560 F.3d at 189 (holding that the board erred as a matter of law
when it found McMillen’s conduct to be protected by the Act); See also discussion
supra notes 157-58 and accompanying text.
180
See Noble Metal Processing, 346 N.L.R.B. at 800 (finding that profanity used in
private settings are not disruptive to the work process); See also Plaza Auto Center,
Inc., No. 28-CA-22256, 2009 WL 2191957, at *1 (N.L.R.B. Division of Judges, July
21, 2009) (holding that an employee who made offensive remarks in the presence of
only management, secluded from other workers, did not have an impact on workplace
discipline).
181
Media General, 560 F. 3d at 184.
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process in Media General ceased to be between equals when the employer
was permitted to discharge McMillen.183 Employees have no “parallel
method of retaliation,”184 and are therefore at a marked disadvantage to
their employers.185
1. Media General: Limiting Employee Speech Directly Related
to Collective Bargaining
The court in Media General argues that if it protects statements like
those made by McMillen, the Atlantic Steel factors would be expanded,
effectively creating a buffer around employee conduct so long as it can be
said that there is any connection to collective bargaining.186 However this
argument is contrary to the facts of Media General and case precedent.
Bettcher Manufacturing established a “buffer” for employee speech that is
protected by the Act.187 This employee protection does not “travel with the
employee wherever he goes (emphasis added),”188 but rather only follows
an employee to places considered less disruptive to the workplace189 and
182
Id. Indeed, it is unclear how this outburst even violated the plant rule, which was
limited to speech that “interfer[ed] with employees at work.” Id. at fn. 2; see also Plaza
Auto Center, No. 28-CA-22256, 2009 WL 219157 at fn. 26 (noting that outbursts
secluded from other employees as a mitigating factor); Nobel Metal Processing, 346
N.L.R.B. at 800 (2006) (recognizing place of discussion as weighing in favor of
affording an employee the Act’s protection when his conduct took place away from
other employees); Waste Management of Arizona, 345 N.L.R.B. at 1340 (finding no
protection when an employee cursed repeatedly before other employees).
183
See discussion infra notes 199-201 and accompanying text; see also Glick, supra
note 177 at 224 (emphasizing the importance of maintaining equality between labor
and management during collective bargaining negotiations).
184
Bettcher Manufacturing Corp., 76 N.L.R.B. at 527.
185
Id.; see John Nivala, The Steward’s Legislative Role in Workplace Government:
A Proposal for Immunity from Employer Discipline 8 Indus. Rel. L.J. 186, 205 (1986)
(quoting Bettcher Manufacturing, reiterating that when employers have the advantage
of freely discharging employees there are two consequences: (1) inequality in
bargaining and (2) that employees will be reluctant to participate directly in
negotiations); see also Glick, supra note 177 at 224 (addressing equality at the
bargaining table).
186
Media General, 560 F. 3d at 189.
187
Bettcher Manufacturing, 76 N.L.R.B. at 526-27; see Hawaiian Hauling Service,
219 N.L.R.B. at 766 (stating that the standard set forth in Bettcher Manufacturing has
been uniformly followed); see also 2 Guide to Employment Law and Regulations §
17:172 (2010) (stating “Employee opposition to an employer’s policies is protected
when policies are related to labor relations”).
188
Media General, 560 F.3d at 189.
189
see supra note 112 and accompanying text; see also U.S. Postal Service v.
N.L.R.B. 652 F.2d 409, 411 (5th Cir. 1981) (characterizing the employee’s behavior as
not disruptive among other employees stating: (T)his is not a case where employees
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only speech having a fair nexus to an ongoing collective bargaining
controversy.190
In the case of Media General, McMillen’s statements were made behind
closed doors and away from other employees.191 Plus, the protection
McMillen deserves did not arise simply from the fact that “some form of
collective bargaining can be said to be taking place,”192 but rather because
McMillen was provoked during ongoing contract negotiations.193 The facts
demonstrate a close nexus between the Vice-President’s circulation of
letters accusing the Union of delaying contract negotiations and
McMillen’s criticism of the Vice-President.194 Such an accusation might
adamantly refused to leave the meeting room when asked to pursue their grievance
later and to return to work. Nor is this a case in which the employees tried to impede
others who sought to leave. Here, the two employees followed the two supervisors back
to the workroom floor. At least to this point their only “insubordination,” if it can be
called such, was in continuing to talk about their grievance as they walked along. When
the employees and the supervisors reached the timeclock, Supervisor Love turned and
said, “I am giving you a direct order. I want you to go back to work now.” After what
was by all accounts a momentary hesitation, and apparently before Love had to repeat
the order, the two employees complied with it).
190
See U.S. Postal Service at 411 (noting that the Bettcher Manufacturing standard
applies to “conflict typically aris[ing] in cases where an employee has been disciplined
for conduct that occurred during the course of the grievance meeting.”); Kysor
Industrial Corp., 309 N.L.R.B. 237, 238, fn. 3 (1992) (holding that the extent to which
employee activity is protected depends on its nexus to legitimate employee concerns);
See also Allied Aviation Service, 248 N.L.R.B. 229, 230-31 (1980) (finding “employee
communications to third parties seeking assistance in an ongoing labor dispute to be
protected where the communications emphasized and focused upon issues cognate to
the ongoing labor dispute”).
191
Media General, 560 F.3d at 184; see also supra note 190 and accompanying text.
192
Id. at 189.
193
Id. at 196 (King, J., dissenting); see Julius G. Getman, The Protection of
Economic Pressure by Section 7 of the National Labor Relations Act 115 U. Pa. L.
Rev. 1195, 1231 fn. 150 (1967) (noting “[e]ven where the employer’s conduct is
blameless, the Board may conclude that minor non-violent misconduct which occurred
as a part of a general course of protected activity did not make an employee liable to
discharge.”); cf Melinda J. Branscomb, Labor, Loyalty, and the Corporate Campaign
73 B.U. L. Rev. 291, 329 fn 181 (1993) (recognizing that section 7 “must allow for
some minor excesses” when an employee exercises their rights especially “when an
employer’s violation of the law provoked an employee’s conduct.”); Bettcher
Manufacturing, 76 N.L.R.B. at 526-27 (concluding that collective bargaining is plainly
a Section 7 right, and to preserve the bargaining process there must be an open
exchange between employers and employees); see also Crown Central Petroleum, 430
F.2d at 729 (stating that “the filing and prosecution of employee grievances is a
fundamental, day-to-day part of collective bargaining and is protected by Section 7”).
194
Id; see Allied Aviation Service, 248 N.L.R.B. at 230-31 (emphasizing the close
relationship between the employee’s outburst and the ongoing dispute); Kysor
Industrial Corp., 309 N.L.R.B. at 237, fn. 3 (recognizing the importance of the nexus
between the Act’s protection and legitimate employee concerns).
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reasonably be understood as alleging that the Union was not bargaining in
good faith.195 Even though it is lawful to make such an accusation, it was
the accusation that provoked McMillen’s response.196 That is a far cry
from just “some form of collective bargaining . . . taking place.”197 This is
in fact exactly the kind of speech Congress intended to protect when it
enacted the NLRA,198 and refusing to recognize it as such demonstrates a
failure to fully appreciate the facts and circumstances of this case.
Conversely, the Fourth Circuit’s decision to uphold McMillin’s
discharge narrows employee rights by essentially providing a “buffer” of
power around management. Reduced to its essentials, Media General
holds that whenever an employer acts in an objectively lawful manner,
regardless of whether its actions would provoke an employee, weight is
placed on employer’s side of the scale and a virtually insurmountable
burden shifts to the employee to overcome in order to benefit from the
NLRA’s protections.199
This is not the protection that Bettcher
195
See 29 U.S.C. § 158 (d) (requiring that the parties in collective bargaining “meet
at reasonable times and confer in good faith”). An essential element of bargaining in
good faith is “the serious intent to adjust differences and to reach an acceptable
common ground.” White Cap, Inc., 325 N.L.R.B. 1166, 1169 (1998). Therefore when
the Vice-President accuses the Union of conduct inconsistent with the desire to reach
an agreement they are accusing them of violating the Act. Id.
196
Media General, 560 F.3d at 196 (King, J., dissenting); see eg Getman, supra note
193 at 1251 fn. 150 (stating that an employee may not be liable to discharge even when
an employer is blameless); Branscomb, supra note 193 at 291 fn. 181 (finding that
section 7 is particularly protective of employee speech when provoked by an
employer’s unlawful acts).
197
Media General, 560 F.3d at 189.
198
Bettcher Manufacturing, 76 N.L.R.B. at 526-27 (concluding that collective
bargaining is plainly a Section 7 right, and to preserve the bargaining process there
must be an open exchange between employers and employees); see also Teamsters v.
Lucas Floor Co., 369 U.S. 95, 103-04 (1962) (finding that “[t]he ordering and adjusting
of competing interests through a process of free and voluntary collective bargaining is
the keystone of the federal scheme to promote industrial peace”); NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 45 (1937) (holding intended “that free opportunity
for negotiation with accredited representatives of employees is likely to promote
industrial peace and may bring about the adjustments and agreements which the act in
itself does not attempt to compel”); Crown Central Petroleum, 430 F.2d at 729 (stating
that “the filing and prosecution of employee grievances is a fundamental, day-to-day
part of collective bargaining and is protected by Section 7”); Schlossberg & Fetter,
U.S. Labor Law and the Future of Labor-Management Cooperation, 3 LAB. L. 11, 1819 and n.25 (1987) (quoting address by T. Schneider, “Quality of Working Life and the
Law,” Harmen Lecture Series, Kennedy School of Government and Public Policy,
Cambridge, Mass.) (Nov. 19, 1981) (stating that NLRA was intended to promote
industrial peace by promoting equal bargaining power between labor and
management).
199
Media General, 560 F.3d at 188.
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Manufacturing, or the NLRA, guarantees.200 In Bettcher Manufacturing
the employer’s provocation was a lawful act201 , yet the Board held that
employee speech is protected unless so “flagrant that it can be said that the
employee no longer is ‘fit’ to continue”202 in the employer’s
employment.203
2. Media General Runs Afoul to Congressional Intent
The Media General majority asserts that affording McMillen NLRA
protection would conflict with Congressional intent.204 In particular, the
Fourth Circuit states that this ruling would expand the current law beyond
the language of the Act.205 However, the NLRA was enacted with the
intention of “restoring equality of bargaining power between employers
and employees.”206 The majority’s decision is contrary to the purpose of
the NLRA because it provides employers with an advantage in bargaining
not given to employees.207 Management has almost carte blanche to say
200
See supra note 198 and accompanying text.
cf. Care Initiatives, 321 N.L.R.B. at 152 (stating “an employer may not rely on
employee conduct that is unlawfully provoked as a basis for disciplining an employee.”
(quoting S.W. Bell Tel. Co., 694 F.2d 974, 978 (5th Cir. 1982)); Stanford N.Y., 344
N.L.R.B. at 559 (finding that profanity was protected where it was a “direct and
temporally immediate response” to unlawful threats by a supervisor).
202
Bettcher Manufacturing, 76 N.L.R.B. at 527.
203
Id.
204
Media General, 560 F.3d at 189; see Office and Professional Employees Intern.
Union, AFL-CIO, CLC v. N.L.R.B., 981 F.2d 76, 81 (2nd Cir. 1992) (stating that the
court “will decline to enforce an interpretation which is ‘fundamentally inconsistent
with the structure of the Act’ and which usurps ‘major policy decisions properly made
by Congress.’(quoting American Ship Bldg. Co. v. N.L.R.B., 380 U.S. 300, 318
(1965)).
205
Id.
206
29 USC § 151; Section 1 in relevant part proclaims: The inequality of bargaining
power between employees who do not possess full freedom of association or actual
liberty of contract, and employers who are organized in the corporate or other forms of
ownership association substantially burdens and affects the flow of commerce, and
tends to aggravate recurrent business depressions, by depressing wage rates and the
purchasing power of wage earners in industry and by preventing the stabilization of
competitive wage rates and working conditions within and between industries. See
also supra note 198 and accompanying text.
207
See Jones & Laughlin, 301 U.S. at 24 (emphasizing the purpose of the NLRA
was to insure equality at in the bargaining process); see also Remarks of Rep. Hartley,
reprinted in 1 N.L.R.B. Legislative History of the Labor Management Relations Act,
1947, at 617 (1948) (remarking that the purpose of Section 7 of the act is primarily to
“write equity into the law, to make the relationship between labor and management
equitable, to place them on an equal basis.”); Subcommittee on Labor-Management
Relations of the Committee on Education and Labor, Failure of Labor Law – A
Betrayal of American Workers, H.R. Rep. No. 98 98th Cong., 2d Sess. 4-11 (1984); see
201
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whatever it wants during negotiations because employees do not possess
the equivalent power to discharge.208 This is inherently against the policy
of the NLRA.209 After Media General, in Bettcher-type cases, the
employer earns “points” in the balancing test by its provocative acts being
legal and the employee is left to wonder how sensitive a reviewing Judge
will be to a private use of the “F” word, “SOB,” or one of several other
words not used in polite society but not uncommonly deployed. Media
General might not stand for the proposition that collective bargaining must
now be conducted by employees pursuant to the “Marquess of Queensbury
rules” but it certainly leaves in great doubt what protection of offensive
speech is left when it is provoked by lawful employer behavior - which is
the typical case.
IV. CONCLUSION
The continued trend away from employee protection is a slippery slope
for the bargaining process as a whole. If the law continues to move in this
direction the bargaining process will reflect exactly the flawed system
Bettcher Manufacturing warned against 60 years ago, namely bargaining
will cease to be between equals and employees will be discouraged from
directly participating in the process.
also Susan L. Dolin, Lockouts in Evolutionary Perspective: The Changing Balance of
Power in American Industrial Relations, 12 Vt. L. Rev. at 350 (1987) (noting that the
Board through its decisions “sought to redress what it perceived as an imbalance in the
parties’ bargaining power by keeping a tight rein on the employer’s ability to resort to
economic self-help”).
208
Bettcher Manufacturing, 76 N.L.R.B. at 527; 29 U.S.C. § 151; see also Getman
& Kohler, The Common Law, Labor Law, and Reality: A Response to Professor
Epstein, 92 Yale L.J. 1415, 1422 (1983) (noting that “the goal of unions was to redress
an imbalance of power; here, the imbalance that exists [is] between an individual
employee and the entity for which he or she works.”); Gross, supra note 7 at 351
(arguing the Wagner Act sought for “industrial democracy [] to replace employers’
unilateral determination of matters affecting wages, hours, and working conditions.”)
209
29 U.S.C. § 151; see Gross, supra note 1 at 351 (stating that the Act “enabled a
major redistribution of power from the powerful to the powerless at U.S. workplaces
covered by the statute”).
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