The NLRB has stretched the bounds of the law as thin as possible with its latest ruling aimed at protecting racist comments hurled at replacement workers by strikers.
Cooper Tire employee Anthony Runion was picketing during a strike. He shouted admittedly offensive an racist taunts at black replacement workers, referencing fried chicken and watermelons, among other insults. He was fired. An Arbitrator upheld his termination. But, an NLRB administrative law judge cited that there were no express threats and that the firing was “clearly repugnant” to the National Labor Relations Act. The NLRB agreed and ordered Cooper Tire to reinstate Runion with full back page. Cooper Tire appealed the decision to the Eighth Circuit Court of Appeals.
Several business groups have also filed brief with the court arguing that the NLRB’s position is inconsistent with federal discrimination laws, protects racist comments, and essentially requires employers to condone racism in the workplace. In retort, the NLRB argued that the act of picketing involves “an element of confrontation” and some “impulsive behavior is to be expected” Further, per the NLRB, no cases have found employers liable under the discrimination laws for only two racially offensive remarks.
The Board’s position here reminds me of the way in which the Board allows employees to yell, curse, and intimidate their supervisors rendering their supervisors powerless to discipline such disruptive employee antics. I am also reminded of a phrase I read somewhere of how the NLRB permits employees to do at work what is illegal if done outside of work. The Eighth Circuit’s decision will be very interesting.
Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.