Racist Remarks During Picketing Somehow Protected

By Allen Smith Jul 8, 2015
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Employment law attorneys are aghast at a June 5, 2015, decision by a National Labor Relations Board (NLRB) administrative law judge (ALJ) finding that a worker was engaged in protected, concerted activity when he made racist remarks on a picket line.

The remarks were on video, noted Patricia Wise, an attorney with Niehaus Wise & Kalas in Toledo, Ohio, speaking June 28 at the Society for Human Resource Management (SHRM) 2015 Annual Conference & Exposition.

Jonathan Segal, an attorney with Duane Morris in Philadelphia, said that the NLRB decision places employers at odds with policies implemented to comply with laws enforced by the Equal Employment Opportunity Commission (EEOC). He said he’d choose adhering to anti-harassment policies to be in the EEOC’s good graces rather than tolerate racial harassment. Choosing to comply with the EEOC over the NLRB in this instance is “the right thing to do,” Segal remarked at the conference on June 30.

Picket Line Remarks

Anthony Runion was on a picket line on Jan. 7, 2012, after Cooper Tire & Rubber Co. locked out bargaining unit employees at its Findlay, Ohio, facility. Many of the replacement workers were black. Cooper’s security guards recorded much of the picketing activity on video.

After fellow picketers yelled obscenities at vans carrying replacement workers into the plant, Runion yelled, “Hey, did you bring enough KFC for everyone?” He then, according to the ALJ (though Runion denied it, even though it was on video), yelled, “Hey, anybody smell that? I smell fried chicken and watermelon.”

After the lockout ended, Runion was fired for making racial comments on the picket line, consistent with the company’s no-tolerance harassment policy.

An arbitrator upheld the discharge, finding that the use of racial slurs on the picket line increased the possibility that the constant verbal exchanges between the picketers and the replacement workers would escalate into violence.

ALJ Disagrees with Arbitrator

But the ALJ did not defer to the arbitrator’s decision, noting that the arbitrator found no disparate treatment even though a black bargaining unit employee once was suspended, but not discharged, for conduct that included making a racist remark.

Cooper maintained that even if an employee is engaged in protected activity, the employee can lose the protection of the National Labor Relations Act (NLRA) if he or she also engages in unprotected offensive, vulgar and/or racist statements during the protected activity.

But the ALJ said that reasoning applied to cases in the workplace, and the board “has long recognized a distinction between employee conduct in the workplace and employee conduct on the picket line.”

No Imminent Physical Confrontation

Runion’s conduct did not coerce or intimidate employees in the exercise of their NLRA rights, nor did it raise a reasonable likelihood of an imminent physical confrontation, the ALJ said. The judge noted that the first remark was made eight seconds after the replacement workers in the vans passed by Runion and the second approximately 27 seconds after the replacement workers had passed.

The statements “most certainly were racist, offensive and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property,” the ALJ stated. “I note that my findings in this matter are consistent with well-established board precedent. The board has held that a striker’s or picketer’s use of even the most vile language and/or gestures, standing alone, does not forfeit the protection of the act, so long as those actions do not constitute a threat.”

The ALJ added, “The fact that his picketing activity included the use of two racist statements was simply insufficient under extant board law to remove the protection from his picketing activity.”

The judge rejected Cooper’s argument that “it is contrary to public policy for the board to continue to tolerate racism on the picket lines and to provide employees making racist statements the same level of protection under the act as employees uttering curse words or making other vulgar statements.”

This case is Cooper Tire & Rubber Co., Case 08-CA-087155.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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