v. NATIONAL LABOR RELATIONS BOARD v.  MEDIA GENERAL OPERATIONS, INCORPORATED, d/b/a Winston-Salem Journal

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MEDIA GENERAL OPERATIONS,
INCORPORATED, d/b/a Winston-Salem
Journal,
Petitioner, No. 04-1222 
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent. 
 NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 04-1339  MEDIA GENERAL OPERATIONS,
INCORPORATED, d/b/a Winston-Salem
Journal,
Respondent. 
On Petition for Review and Cross-petition
for Enforcement of an Order
of the National Labor Relations Board.
(11-CA-19339)
Argued: October 1, 2004
Decided: January 10, 2005
Before WILLIAMS and SHEDD, Circuit Judges, and
Henry E. HUDSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Petition for review is granted and cross-petition for enforcement of
the NLRB Order is denied by published opinion. Judge Hudson wrote
the opinion, in which Judge Williams and Judge Shedd joined.
COUNSEL
ARGUED: Glenn E. Plosa, ZINSER LAW FIRM, P.C., Nashville,
Tennessee, for Media General Operations, Incorporated, d/b/a
Winston-Salem Journal. Jason Walta, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for the Board. ON BRIEF: L.
Michael Zinser, ZINSER LAW FIRM, P.C., Nashville, Tennessee,
for Media General Operations, Incorporated, d/b/a Winston-Salem
Journal. Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr.,
Deputy General Counsel, John H. Ferguson, Associate General Coun-
sel, Aileen A. Armstrong, Deputy Associate General Counsel, David
Habenstreit, Supervisory Attorney, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for the Board.
OPINION
HUDSON, District Judge:
Media General Operations ("the Company") petitions this Court to
review a decision and Order of the National Labor Relations Board
("the Board"), and the Board cross-petitions for enforcement of its
Order. The Board’s decision overturned the administrative law
judge’s ruling and held that the Company had suspended, and then
discharged, an employee in retaliation for engaging in protected
Union activities. For the following reasons, the petition for review is
granted, and the cross-petition for enforcement of the NLRB Order is
denied.
I.
The Company operates the Winston-Salem Journal ("the Journal"),
a daily newspaper whose press employees were represented by the
Graphic Communications International Union ("the Union"). The dis-
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charged employee, John Mankins ("Mankins"), had worked for the
Company for sixteen years and served as the Union’s Vice-President
and Assistant Chairman on his shift.
In or about July 2001, Mankins raised concerns with his supervisor,
Danny Leonard ("Leonard"), that his fellow employee, Ricky Smith
("Smith"), was neglecting his duties due to his excessive socializing
with Leonard. According to the Union, Mankins was not the only
employee complaining about Leonard and Smith’s interactions on
company time. The Union had also echoed these concerns to the com-
pany president, but not directly to Leonard.
On or about December 14, 2001, Leonard called the press employ-
ees together to discuss deficiencies in their work performance, which
he had observed the previous evening. His comments were loudly
interrupted by Mankins, who vocalized his belief that Leonard did not
treat everyone equally. He called Leonard a "racist" and stated that
the newspaper was a "racist" place to work. In response, Leonard told
Mankins to raise these issues with the production director, Sam High-
tower ("Hightower").
About an hour after the meeting, Leonard asked Mankins to come
to his office. Mankins did not request Union representation at this
meeting. There, Leonard instructed Mankins that "his behavior on the
floor was very unacceptable," that it would "not be tolerated," and
that "if he ever displayed it again," he would be "sent home." Leonard
then told Mankins to go back to work. Mankins objected to Leonard’s
instructions and once again called him a "racist" and reiterated his
belief that the Journal was a "racist" place to work. Leonard then sus-
pended Mankins and instructed him to go home.
Mankins walked out of the office and through the "Quiet Room,"
which is a short-cut to the locker room.1 Leonard followed him. As
Mankins was leaving the "Quiet Room," he called Leonard a
"b_ _ _ _ _ d" and a "redneck son-of-a-b_ _ _h." At no time during
which these comments were made by Mankins did he represent that
he was speaking in his capacity as a Union member.
1The "Quiet Room" contains equipment used to set the presses.
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On December 17, 2001, Mankins telephoned Hightower and
requested a meeting. Mankins, Hightower and the Journal’s Director
of Human Relations, Randall Noftle ("Noftle"), attended the meeting.
Mankins was not accompanied by Union representation. At this meet-
ing, Mankins initially denied that he had cursed at Leonard or that his
behavior was disruptive, even though several employees present at the
December 14, 2001 meeting had signed statements attesting to
Mankins’s comments and behavior. By the end of the meeting,
Mankins admitted that his behavior may have gotten a little out of
hand.
The Journal investigated the incident, and then met with Mankins
and his Union representative on December 19, 2001. At that meeting,
Mankins was terminated for having called Leonard a "b_ _ _ _ _d"
and a "redneck son-of-a-b_ _ _h." The termination letter stated that
Mankins’s conduct had been "disrespectful of Mr. Leonard’s position
and authority and represent[ed] serious insubordination that cannot be
tolerated."
On December 27, 2001, the Union filed a grievance protesting the
termination. Shortly thereafter, Mankins filed his own complaint with
the Board and with the Equal Opportunity Employment Commission.
The NLRB General Counsel ("General Counsel") issued a Complaint
in the case on March 28, 2002. The Complaint, which had been
amended twice prior to a two-day hearing before an administrative
judge, alleged that the Company had violated 29 U.S.C. § 158(a)(1)
and (3) ("the National Labor Relations Act" or "the Act") by suspend-
ing Mankins in retaliation for his alleged protected Union activity and
by firing Mankins in retaliation for continuing his alleged protected
activity.
Following a hearing, the General Counsel moved in a post-hearing
brief to amend its Complaint to add an additional unfair labor practice
charge. Specifically, the General Counsel alleged that the Company
had violated 29 U.S.C. § 158(a)(1) by threatening to discipline
Mankins in retaliation for his alleged protected Union activity. The
Company opposed the motion in a separate filing and moved to re-
open the record to admit information that had not previously been
admitted into evidence.
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On October 9, 2002, Administrative Law Judge George Carson, II
("ALJ") held that there was no evidence that any action taken towards
Mankins had been retaliatory in nature, rather it was in response to
his disruptive behavior. The ALJ found that there was no evidence
that Mankins had been engaged in Union activities. Mankins’s out-
burst at the meeting was not orchestrated, rather it was spontaneous.
Further, it was the manner in which Mankins spoke, and not the con-
tent of his speech, that led Leonard to request Mankins’s presence in
his office.
Moreover, the ALJ did not find that any threats were made by
Leonard relating to "protected" activity when he warned Mankins that
if he did not "calm down" that he would be "sent home." Based on
these findings, the ALJ denied the General Counsel’s Motion to
Amend the Complaint and recommended that the Board dismiss the
entire case. The General Counsel filed an exception to this recom-
mendation. The Company, however, failed to timely file a response.
On January 30, 2004, the Board overturned the ALJ’s decision.
The Board held that Mankins, despite the manner in which he
addressed his supervisor, had engaged in protected activity when he
initially spoke up at the crew meeting due to his position as an officer
of the Union. The Board found that it was obvious to most of the indi-
viduals present at the crew meeting that Mankins’s remarks referred
to Leonard’s favoritism of certain employees. Further, it was deter-
mined that Mankins never lost the protection of the Act during his
subsequent statements to Leonard because his comments were a con-
tinuation of their previous discussion and were provoked by Leon-
ard’s threats of suspension. Additionally, the Board allowed the post-
hearing amendment of the Complaint. Based on its findings, the
Board held that the Company had violated the Act when it threatened,
suspended, and ultimately discharged Mankins for engaging in pro-
tected activity. It ordered the Company to reinstate Mankins, award
him back-pay, and refrain from continuing its unlawful labor prac-
tices. From the Board’s Order, the Company has filed the present
appeal, and the General Counsel has cross-petitioned for enforcement.
II.
The scope of review of the Board’s decision is limited. "If the
Board’s legal interpretations are rational and consistent with the Act,
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they will be upheld by reviewing courts." Sam’s Club, a Div. of Wal-
Mart Stores, Inc. v. NLRB, 173 F.3d 233, 239 (4th Cir. 1999). A
reviewing court, however, is "obligated to correct errors of law made
by the Board." Va. Concrete Co. v. NLRB, 75 F.3d 974, 980 (4th Cir.
1996). "The findings of the [Board] with respect to questions of fact
if supported by substantial evidence on the record considered as a
whole shall be conclusive." 29 U.S.C. § 160(e) (2004). However, this
Court "is empowered to set aside a Board’s decision when the Court
cannot conscientiously find substantial evidence to support the
Board’s decision, when reviewing the record as a whole including the
body of evidence opposed to the Board’s view." NLRB v. Transper-
sonnel, Inc., 349 F.3d 175, 180 (4th Cir. 2003) (citing Weirton Steel
v. NLRB, 689 F.2d 504, 507 (4th Cir. 1982)).
III.
The issue to be decided in this case is whether Mankins’s outra-
geous comments and behavior are considered "protected activity"
under Section 7 of the Act, and if so, whether his behavior was so
offensive as to take it outside of the protection of the law. Section 7
provides that, "Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their choosing, and to engage in other con-
certed activities for the purpose of collectively bargaining or other
mutual aid or protection . . . ." "The term ‘concerted activity’ is not
defined in the Act but it clearly enough embraces the activities of
employees who have joined together in order to achieve common
goals." NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 830
(1984) (citing Meyers Industries, Inc., 268 N.L.R.B. 493, 494-495
(1984)). An individual employee may be engaged in concerted activ-
ity when he acts alone if the purpose of his acts are to enforce a col-
lective bargaining agreement, seeking to induce group action, or
acting on behalf of a group. See Blaw-Knox Foundary & Mill
Machinery, Inc. v. NLRB, 646 F.2d 113, 116 (4th Cir. 1981). After
examining Mankins’s words and actions, and the context in which
they were used, we find that there was no tenable excuse for his
behavior that would justify terming it protected "concerted activity."
Words such as "b_ _ _ _ _d," a "redneck son-of-a-b_ _ _h," and
other words of similar import, are devoid of substantive content and
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of meaningful value that could convey a message of grievance or con-
cern. They are simply words of offense. Mankins did not use these
derogatory statements in a manner to emphasize a message, or in
response to a question soliciting the Union’s opinion on a matter.
Mankins threw out these offensive phrases in his supervisor’s office
after being told that his disruptive behavior was unacceptable. After
receiving this counseling, Mankins chose to repeat his coarse behav-
ior in the "Quiet Room," where he was no longer involved in a con-
versation with his supervisor. His comments there were completely
unprovoked. Mankins may have been an officer in the Union, but that
alone did not warrant invocation of protection under Section 7. In
order to invoke the mantel of his Union office, he must demonstrate
some nexus between the words he uttered and protected activity.
The determination of whether an action is "protected" is based on
its purpose. See Joanna Cotton Mills Co. v. NLRB, 176 F.2d 749, 753
(4th Cir. 1949) ("Where there is a bona fide concerted activity for any
of the purposes named in the statute, its protection will not be denied
because of the motives of those engaging in the activity; but it is not
the motive of the participants that we are concerned with here but the
‘purpose’ of the activity."). A person must act for the purpose of
inducing or furthering group action. See Blaw-Knox Foundary & Mill
Machinery, Inc., 646 F.2d at 116. In speaking one-on-one with his
supervisor and as he walked out of the "Quiet Room," there were no
other fellow Union members present that could have been moved by
Mankins to join in his cursing crusade. Moreover, his words had no
substantive content or value that could have assisted even one mem-
ber of the Union in furthering a cause. A reflection of Mankins’s
words and actions could only lead to one conclusion: his derogatory
attacks were merely a manifestation of his personal sentiments
towards his supervisor, not an expression of Union opinion. Such per-
sonal missions are not the sort of concerted activity which the statute
protects. See Joanna Cotton Mills Co., 176 F.2d at 753.
Moreover, the act that precipitated Mankins’s behavior in the office
and "Quiet Room," specifically his conduct in the employee meeting,
also did not fall within the protection of the Act. In a meeting called
for the purpose of discussing deficiencies in the employees’ work
product, Mankins shouted out that his employers were "racists." In
some situations the word "racist" may be used in a manner to commu-
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nicate a legitimate concern of prejudice in the workplace. This was
not the case here. Without any underlying facts justifying Mankins’s
repetitive use of the word, this Court cannot find that his acts were
"protected."2 The offensive manner in which Mankins used the word
to describe his employers was purely pejorative, and was intended to
convey his personal sentiments. The use of the word "racist" in this
setting and context merely served to stoke the intensity of his disrup-
tive behavior. Mankins’s intolerable actions warranted a firm admoni-
tion and his subsequent suspension for continued disruptive behavior.
This Court finds that the NLRB’s findings to the contrary are unsup-
ported by substantial evidence.
For engaging in such unprotected insolent behavior, the Journal
was justified in suspending and then terminating Mankins’s employ-
ment. "It has often been stated that insubordination and refusal to
obey instructions constitute reasonable grounds for disciplining an
employee, and discharge for insubordination or refusal to obey
instructions is perfectly lawful." NLRB v. Consolidated Diesel Elec-
tric Co., 469 F.2d 1016, 1025 (1972) (citing Visador Co. v. NLRB,
386 F.2d 276, 281 (4th Cir. 1966)). Membership in the Union did not
immunize Mankins against discipline for his personal misbehavior.
Nor does the Act shield against the consequences of insubordinate
behavior if the disciplinary act was not motivated by anti-union ani-
mus. See NLRB v. Brown, 380 U.S. 278, 286 (1965). "Discipline of
an employee is a matter left to the discretion of the employer." Con-
solidated Diesel Electric Co. 469 F.2d at 1025 (quoting NLRB v. Ogle
Protection Service, Inc., 375 F.2d 497, 505-506 (6th Cir. 1967). And,
"it is not an unfair labor practice to discharge an employee for exhib-
iting a defiant and insulting attitude towards his [supervisor]." Mary-
land Drydock Co. v. NLRB, 183 F.2d 538, 540 (4th Cir. 1950). Thus,
it was the Journal’s prerogative to suspend and then terminate
Mankins for his egregious behavior.3
2The ALJ, whose findings were not overturned by the Board, found
that there was no evidence of anti-union animus by the Journal towards
its employees.
3In light of the above decision, the Court need not reach the issue
raised in the post-hearing amendment to the Complaint or whether the
amendment was acceptable.
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Even if this Court accepted the Board’s tenuous finding that
Mankins’s conduct on December 14, 2004 was attributable to a com-
ment that he had made six months earlier to his supervisor regarding
favoritism in the workplace, his offensive behavior still fell outside
of the protection of the Act. "Not all conduct that can, in some general
sense, be characterized as an exercise of a right enumerated in section
7 is afforded the protection of the Act." Texas Instruments, Inc. v.
NLRB, 637 F.2d 822, 830 (1981) (citing NLRB v. Local 1229 IBEW,
346 U.S. 464 (1953)). "Concerted activity that . . . constitutes insubor-
dination or disloyalty may be found to fall outside the scope of the
NLRA even if undertaken in the interest of self-organization or col-
lective bargaining." Id. The Court cannot fathom more offensive
derogatory terms than the ones Mankins recited in the workplace. The
Journal’s intolerance of his behavior is certainly understandable.
Thus, the crude and socially unacceptable nature of Mankins’s
remarks placed him outside of the broad boundaries of the Act.
If Mankins’s actions had been considered "protected," then this
case would be analogous to Sulliar P.T.O., Inc. v. NLRB where an
employee’s actions, although protected, exceeded the tolerance of the
Act. 641 F.2d 500 (7th Cir. 1981). In Sulliar, a disgruntled employee
used a number of similar expletives when he complained to his super-
visor about a change in company policy that financially impacted its
employees. As in this case, the supervisor warned the employee not
to engage in offensive behavior, to which the employee replied using
further profanity. The court held that it could not condone the use of
such vulgarity directed at management. "Communications occurring
during the course of otherwise protected activity remain likewise pro-
tected unless . . . ‘so violent or of such serious character as to render
the employee unfit for further service.’" Id. at 502 (quoting Dreis &
Krump Mfg. Co., Inc. v. NLRB, 544 F.2d 320, 329 (7th Cir. 1976)).
The court denied enforcement of the NLRB Order, finding that the
employee’s foul and abusive conduct was the overriding reason for
the proper discharge.
In reviewing the record below as a whole, we find an absence of
sufficient evidence to support the Board’s finding that Mankins’s con-
duct was protected by the Act. We believe that Mankins’s comments
were beyond the pale, and the Journal acted properly in discharging
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him for insubordination. Accordingly, the Order of the Board is set
aside and enforcement is denied.
PETITION FOR REVIEW IS GRANTED AND
CROSS-PETITION FOR ENFORCEMENT OF
THE NLRB ORDER IS DENIED
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