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.<\/p>\n
The Facts:<\/u><\/strong> Following the expiration of Cooper Tire\u2019s Collective bargaining agreement with the United Steelworkers, Cooper hired temporary replacement workers at its Findlay, Ohio plant until a new agreement was reached. \u00a0 In response, the Union set up numerous picket lines at the facility and chanted various \u201cscab\u201d comments to the replacement workers, many of whom were African-American, as they crossed the picket line. \u00a0 However, union member Anthony Runion was caught on camera yelling racist comments to the replacement workers, including the following: \u201cHey, did you bring enough KFC for everyone?\u201d, \u201cHey, anybody smell that? I smell fried chicken and watermelon.\u201d \u00a0 The company terminated Runion for making racist comments in violation of its anti-harassment policy, and the union\u2019s grievance of the termination was denied at arbitration.<\/p>\n The NLRB\u2019s Ruling:<\/u><\/strong> On appeal to the NLRB, the Administrative Law Judge ruled that the Cooper\u2019s 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 \u2013 the protected activity of engaging in picketing. In so doing, the Judge observed that while Runion\u2019s comments were indeed racist and reprehensible, his conduct \u201cdid 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\u2019s protections trumped the company\u2019s anti-harassment policy.<\/p>\n