A newspaper pressman made a very nasty comment about his company’s vice president. He was fired for it. But an administrative law judge, the National Labor Relations Board (NLRB), and the 4th Circuit have been wrangling since about whether his termination violated federal labor law.

What happened. Media General, owner of the Tampa Tribune, had been negotiating with pressmen for the newspaper for more than a year, attempting to reach consensus on a new collective bargaining agreement. The prior contract expired in October 2004, and the events in question took place in November 2005. Bargaining had been very contentious, and a company vice president had written a series of letters to the pressmen in which he blamed the union for the slow pace of negotiations and promoted management’s views of the agreement he wanted them to accept.

Many pressmen were angry about the letters, which they saw as antiunion, and 25 of them signed a counter letter to the VP on November 4, among them journeyman pressman “McCann.” During his evening shift 6 days later, McCann learned that the VP had sent them yet another letter. Although he hadn’t seen it, during a break, he went to a press office and told two foremen what he thought of the VP, calling him by a profane name. One of the foremen reported the incident; McCann was suspended without pay for two shifts and then fired.

An administrative law judge (ALJ) for NLRB ruled that because McCann’s statement was both profane and offensive, labor law did not protect him from termination for it. But the board overturned the judge’s decision, finding that McCann was engaging in concerted activity related to negotiations when he made the comment, that it was made in private, and that he later apologized for it. So he should not have been fired. Media General, which does business in Virginia, appealed to the 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

What the court said. Judges were divided on this controversial case. But the majority ruled for the ALJ’s opinion—that the comment had been egregious enough that McCann had lost his concerted activity protection. So Media General had the right to fire him. Two judges agreed with both the ALJ and NLRB that McCann had been engaged in concerted activity, but they felt NLRB had overbroadly interpreted the leeway workers have in such situations. Media General v. NLRB, U.S. Court of Appeals for the 4th Circuit, No. 08-1197 (2009).

Point to remember: NLRB had argued the comment was made in private during intense and protracted negotiations and its ruling aligned with its precedents. This was anything but a clear-cut case.