How Can That Be? NLRB Overturns Arbitrator’s Decision and Finds that Racist Comments are Protected Activity Under the NLRA

In recent years the National Labor Relations Board (NLRB) has issued numerous opinions that decidedly favor employee rights to engage protected activity under the National Labor Relations Act (NLRA) over employer rights to manage conduct in the workplace. However, a recent decision by a NLRB administrative law judge that Cooper Tire & Rubber violated the NLRA by unlawfully terminating an employee who made overtly racist statements on a picket line has many employers deeply troubled about how far the Board is willing to subordinate employer rights in the workplace.

The Facts: Following the expiration of Cooper Tire’s Collective bargaining agreement with the United Steelworkers, Cooper hired temporary replacement workers at its Findlay, Ohio plant until a new agreement was reached.   In response, the Union set up numerous picket lines at the facility and chanted various “scab” comments to the replacement workers, many of whom were African-American, as they crossed the picket line.   However, union member Anthony Runion was caught on camera yelling racist comments to the replacement workers, including the following: “Hey, did you bring enough KFC for everyone?”, “Hey, anybody smell that? I smell fried chicken and watermelon.”   The company terminated Runion for making racist comments in violation of its anti-harassment policy, and the union’s grievance of the termination was denied at arbitration.

The NLRB’s Ruling: On appeal to the NLRB, the Administrative Law Judge ruled that the Cooper’s anti-harassment policy was not controlling. Rather, the Judge reasoned that Runion was discharged for a reason prohibited under the under the National Labor Relations Act – the protected activity of engaging in picketing. In so doing, the Judge observed that while Runion’s comments were indeed racist and reprehensible, his conduct “did not tent do coerce or intimidate employees [crossing the line], nor did they raise a reasonable likelihood of an imminent confrontation . . . they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The Judge noted that serious acts of misconduct during union activities can negate the protections otherwise available under the NLRA, this was not the case here, and thus the statute’s protections trumped the company’s anti-harassment policy.

To add insult to injury, the Judge directed Cooper Tire to reinstate Runion with back pay and benefits.

Stuck Between a Rock and a Hard Place: For years, the Equal Opportunity Commission (EEOC) has been holding employers accountable for tolerating racist conduct in the workplace. Companies are increasingly cognizant of their obligation to rid the workplace of such behaviors by imposing appropriate discipline against employees who engage in racist behaviors.

This decision clearly appears to be at odds with the EEOC’s position, as well as basic principles of common decency in today’s culture.