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MEDIA GENERAL OPERATIONS, INC. v. N.L.R.B.

Nos. 08-1153, 08-1197.

560 F.3d 181 (2009)

MEDIA GENERAL OPERATIONS, INCORPORATED, d/b/a The Tampa Tribune, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. National Labor Relations Board, Petitioner, v. Media General Operations, Incorporated, d/b/a The Tampa Tribune, Respondent.

United States Court of Appeals, Fourth Circuit.

Decided: March 13, 2009.

Attorney(s) appearing for the Case

ARGUED: Glenn Edward Plosa, Zinser Law Firm, P.C., Nashville, Tennessee, for Media General Operations, Incorporated, d/b/a The Tampa Tribune. Fred B. Jacob, National Labor Relations Board, Washington, DC, for the National Labor Relations Board. ON BRIEF: L. Michael Zinser, Zinser Law Firm, P.C., Nashville, Tennessee, for Media General Operations, Incorporated, d/b/a The Tampa Tribune. Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Jill A. Griffin, Supervisory Attorney, William M. Bernstein, Senior Attorney, National Labor Relations Board, Washington, DC, for the National Labor Relations Board.

Petition for review granted; cross-petition for enforcement denied by published opinion. Judge DUNCAN wrote the majority opinion, in which Judge SMITH concurred. Judge KING wrote a dissenting opinion.

DUNCAN, Circuit Judge:

The Tampa Tribune ("the Tribune") appeals from a judgment of the National Labor Relations Board ("the Board") that it violated the National Labor Relations Act ("the Act") when it fired employee Gregg McMillen for making derogatory remarks about the Tribune's Company Vice President. The administrative law judge ("ALJ") found that McMillen's dismissal was lawful because his statement was so profane and offensive that it was not protected by the...

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