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An employer improperly fired an employee even though the employee used racially offensive language while walking a picket line, according to the 8th U.S. Circuit Court of Appeals.
Cooper Tire locked out 1,000 employees at its Findlay, Ohio, plant. During the lockout, Cooper operated with temporary replacement workers, many of whom were black, who were transported across a picket line in company vans.
While picketing, a locked-out employee yelled the following racially charged statements: "Hey, did you bring enough KFC for everyone?" and "Hey, anybody smell that? I smell fried chicken and watermelon."
The employer discharged the employee, and his union took the case to arbitration. The arbitrator upheld the discharge finding that the employee had been fired for just cause based on his racially insensitive statements.
The union, which had also filed an unfair labor practice charge with the National Labor Relations Board (NLRB), requested that the arbitration award be reviewed by an administrative law judge (ALJ). The ALJ concluded that the arbitrator's award was repugnant to the National Labor Relations Act (NLRA) because the employer terminated the employee for engaging in behavior protected by the law. The NLRB upheld the ALJ's determination and ordered that the employee be reinstated with back pay.
[SHRM members-only HR Q&A: What is the function of the NLRA?]
In affirming the decision of the NLRB, the 8th Circuit noted that "[i]mpulsive behavior on the picket line is to be expected, especially when directed against nonstriking employees or strike-breakers." According to the court, unless the alleged misconduct "may reasonably tend to coerce or intimidate employees in the exercise of rights," the behavior is protected by the NLRA.
The court distinguished this case from a case where the NLRB upheld the discharge of a picketer who held a sign for five minutes that stated, "Who is Ronda F. sucking today?" In that case the NLRB concluded that the singled-out woman would feel coerced.
However, the court concluded that this case was like others decided by the NLRB where employees violated the NLRA by terminating employees who may have used vulgar language, obscene gestures and even racial slurs but nevertheless did not engage in actions that would cause them to lose the protection of the law. These cases include a 2006 NLRB decision where a picketer advanced toward replacement workers with both middle fingers extended and screamed "F--- you, n------." The NLRB found the picketer's conduct "did not differ from the general atmosphere on the picket line with the usual tensions between striker and replacement worker and the use of obscene gestures and vulgar language."
Cooper Tire & Rubber Co. v. NLRB, 8th Cir., No. 16-2721 (Aug. 8, 2017).
Professional Pointer: The NLRB has long protected employees engaging in union activity in settings that may be emotionally charged. These settings include picket lines, grievance meetings and contract negotiations. The NLRB requires employers to tolerate a level of emotional outburst that would have otherwise subjected the employee to discipline, up to and including discharge under company work rules and harassment policies. There are lines that can be crossed, including threats or actual violence, but short of those lines the NLRB will protect behavior that is unacceptable in virtually any other context.
Thomas W. Mackenzie is an attorney with Lindner & Marsack S.C., the Worklaw® Network member firm in Milwaukee.
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