NLRA Protects Striker’s Racists Insults

By Timothy Garrett

The Eighth Circuit Court of Appeals recently ruled that a picketer who hurled admittedly racist insults at a busload of African-American replacement workers should not have been fired and must be reinstated with full back pay. The majority, in a 2-1 decision, ruled the racist insults occurred during picketing, were not directed at any particular individual employee, and were not on “display” for an extended period of time. Thus, this mere “package of verbal barbs thrown out during a picket line exchange” did not cause the picketing employee to lose his protected status under the National Labor Relations Act (NLRA). The Court majority affirmed the National Labor Relations Board (NLRB) decision that the company, Cooper Tire & Rubber Company, violated the law when it refused to reinstate the worker after the strike ended.

There was a blistering dissent. Circuit Judge Beam launched his tirade by first noting: “No employer in America is or can be required to employ a racial bigot.”

The case is Cooper Tire & Rubber Company v. NLRB. The facts show a surprisingly cavalier attitude by the NLRB in protecting a striking worker who admittedly shouted offensive and racist comments at the replacement workers. In what some might conclude as “tone deaf” reasoning, the NLRB and the Eighth Circuit majority excused the behavior as “impulsive,” which is to be expected in the emotional climate of a strike.

Background

Cooper Tire was in the midst of a labor dispute. After expiration of a union contract, the Company locked out the employees and prohibited them from working until the parties reached agreement on a new contract. During the lockout, the Company continued to operate with replacement workers. The Union began picketing.

On a particular evening, vans with replacement workers drove past a union event on their way into the plant. As one van of replacement workers passed by, one of the picketing workers, Anthony Runion, noticed that many replacement workers were African-American, and he shouted racist taunts based on stereotypical assumptions. Runion engaged in this conduct even though union representatives had instructed picketing employees to refrain from racist, sexist, or sexually explicit language.

After the lockout ended, the Company refused to reinstate Runion and terminated his employment for gross misconduct during the picketing.

Round 1: Company Wins Before Arbitrator

The Union and Runion filed a grievance, which was taken to arbitration. The Arbitrator denied the grievance. The Arbitrator ruled that Runion’s conduct was inappropriate and that there was absolutely no reason to “inject race” into picket line exchanges or to express “animosity toward African-American replacement workers by using racial slurs or demeaning racial comments.” Because the conduct was a “clear violation” of the Company’s anti-harassment policies and “so intolerable” as to be gross misconduct, the Arbitrator found the termination lawful.

Round 2: Union Wins Before NLRB

At the Union’s request, the NLRB Regional Director refused to defer to the Arbitrator’s decision. The NLRB pursued unfair labor practice (ULP) charges against the Company, claiming that the racist conduct was not sufficiently severe as to cause the employee to lose his protected status. The Regional Director issued a complaint, saying that the Company had terminated Runion for engaging in union activities and thus making the firing a violation of the NLRA.

In what some (including this author) consider a shocking ruling, an NLRB Administrative Law Judge (ALJ) found that the racist comments were protected under the NLRA. The ALJ explained that, while offensive, the racist insults did not reasonably tend to coerce or intimidate employees in exercising their rights, and that the comments did not raise a reasonable likelihood of imminent physical confrontation. Since there were no express threats, the firing was “clearly repugnant” to the NLRA. The ALJ ordered the Company to reinstate the picketing worker with full back pay.

In a three-paragraph decision, the NLRB affirmed the ALJ’s decision.

Round 3: Case Before Eighth Circuit

Cooper Tire appealed to the Eighth Circuit. Several business groups filed briefs in support of the Company’s position. Those groups argued that the NLRB’s position is inconsistent with federal discrimination law, protects racist comments, and essentially requires employers to condone racism in the workplace. Even the NLRB admitted that the striker’s comments were “offensive to the dignity of the African-American replacement workers.” Yet, explained the NLRB, picketing involves “an element of confrontation” and some “impulsive behavior is to be expected.” The NLRB further noted that courts have not found employers liable for discrimination based on only two racially offensive remarks.

Please allow a brief tangent:

  1. This author strongly disagrees with the reasoning underlying the argument that racist comments should be excused because picketing involves some confrontation and impulsive behavior. True, picketing involves confrontation. Picketing employees are voicing disagreement with a company’s positions in negotiations and trying to gather support for the union’s views. But, on what basis should racist insults be allowed as a means to these ends? Mere disagreement does not justify racist verbal attacks. If the NLRB continues to allow such behavior, we should not be surprised that such behavior continues.
  1. One or two offensive comments are sufficient to prove harassment. In the same month as the Eighth Circuit ruling, another Circuit found that a single racial slur could establish racial harassment. Castleberry v. STI Group (3rd Circuit August 2017).

A concurring opinion in another recent case regarding sexually offensive picket line misconduct is instructive here. In Consolidated Communications v. NLRB, D.C. Circuit Judge Patricia Millett criticized the NLRB for “the too-often cavalier and enabling approach that the NLRB’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. The sexually and racially disparaging conduct that NLRB decisions have winked away encapsulates the very types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status.”

Round 4: NLRB and Union Win Before Eighth Circuit.

In a 2-1 ruling, the Eighth Circuit panel ruled against Cooper Tire on the following rationale: The racist comments were not directed at any individual; were not on display for an extended period of time; other cases have upheld the NLRB’s position that racist and sexist comments and gestures do not automatically cause picketing to lose its protected status; and, the comments also were not sufficiently severe or pervasive to create an unlawfully harassing workplace.

Cooper Tire countered that it must apply its lawful policy prohibiting harassment, but the majority explained that, since the policy did not mandate termination, the obligations under Title VII “do not conflict with Runion’s reinstatement.”

The majority did issue a caution to the NLRB:

We have cautioned the NLRB before against assuming the use of abusive language, vulgar expletives, and racial epithets between employees is part and parcel of the vigorous exchange that often accompanies labor relations. . . . [T]he NLRB’s decisions seem in too many cases . . . oblivious to the dark history such words and actions have had in the workplace (and elsewhere) . . . To be sure, employees’ exercise of their statutory rights to oppose employer practices must be vigorously protected, and ample room must be left for powerful and passionate expressions of views in the heated context of a strike. But NLRB decisions’ repeated forbearance of . . . racially degrading conduct is service of that admirable goal goes too far.

But, the majority was not willing to overrule the NLRB. In dissent, Judge Beam was not so unwilling. Circuit Judge Beam noted two issues

(1) whether the employee exhibited racial bigotry directed toward African American employees of Cooper Tire and

(2) whether the exercise of such bigotry is protected under the NLRA.

Beam wrote: “The answer to question one is clearly yes and the answer to query two is undoubtedly no!”

Will There be Other Rounds?

It is true that conduct during a strike retains heightened protection, and it should. Ordinary misconduct generally should not cause a striking employee to lose protection. But, with all due respect, this is not “ordinary misconduct.” The decision here reads the NLRA as protecting offensive, racist slurs, which undermine the type of workplace the NLRB historically claimed to be protecting and promoting. The position is untenable. The NLRB’s position sacrifices race relations at the altar of protecting striking workers.

And, what of the Union’s continuous fight to protect the job of an employee who hurled racist insults? The Union’s taking the matter to arbitration is understandable, especially since the Union might otherwise face a lawsuit for breach of the duty of fair representation. But, what does the Union’s action in pursuing it further say to the African-American employees? And, what does it say about the Union’s views?

This writer hopes Cooper Tire continues to appeal, either to the full Eighth Circuit or to the Supreme Court. While there is authority by which a rational academic could justify the decision here, it is incredulous that the Court has held to such academic rationale when there is legally sound authority to rule otherwise. Criticisms of the NLRB noted by in the quotations above are justified, but they ring hollow without an actual reversal of the NLRB’s decision protecting racist insults.

Timothy Garrett, Attorney Bass, Berry & Sims PLC tgarrett@bassberry.com www.bassberry.com