HR Legalist

NLRB Rules that Racism is a Protected Activity

Although no one reading this article would disagree with the premise that employers cannot and should not tolerate bigotry from anyone in their workforce, the NLRB apparently thinks otherwise.  In a troubling decision handed down earlier this month, National Labor Relations Board (“NLRB”) Administrative Law Judge Thomas M. Randazzo ruled that Cooper Tire & Rubber Company (“Cooper Tire”) violated the National Labor Relations Act (the “Act”) when it terminated an employee who hurled racist epithets at African-American replacement workers while the employee was on a picket line.  (See Cooper Tire & Rubber Co., Case 08–CA–087155. June 5, 2015).  Incredulously, Judge Randazzo then fashioned a remedial order that required Cooper Tire to rehire the racist employee and pay him back pay – wages he would have earned had he not been terminated.  Considering that the employee was terminated in March of 2012, Cooper Tire may have to pay the racist employee more than three years of wages.

Background to the Controversial Decision

In late 2011, Cooper Tire and the United Steel Workers (“USW”) had reached an impasse while negotiating a successor collective bargaining agreement. Cooper Tire then presented to the USW its last, best and final offer, which the union rejected. Shortly thereafter, Cooper Tire locked out its employees and began using replacement workers, the vast majority of whom were African-American. In response, the union set up a picket line outside the employer’s main entrance.

On January 7, 2012, vans containing African-American replacement workers drove through the entrance. As they passed by the picket line, several picketers made obscene gestures directed at the vans and used profanity.  An unidentified picketer yelled, “Go back to Africa, you bunch of f—–g losers.”  Picketer Anthony Runion was captured on video yelling, “Hey, did you bring enough KFC for everyone?” and, “Hey, anybody smell that?  I smell fried chicken and watermelon!”  When the lockout ended, Cooper Tire terminated Runion’s employment under the Company’s anti-harassment policy.  The USW grieved the termination and an arbitrator denied the grievance finding that, based on Runion’s racist statements, Cooper Tire’s termination of Runion was for just cause.

The matter came before Judge Randazzo because the USW refused to abide by the arbitrator’s decision. Instead, the USW filed an unfair labor practice charge with the NLRB claiming that racist remarks in a strike situation are protected under the Act.  Judge Randazzo agreed and ordered Cooper Tire to reinstate Runion with back pay.  In support of his decision, Judge Randazzo relied on thirty year old Board precedent for the proposition that racist statements unaccompanied by threats, coercion or intimidation, imminent physical confrontation, or acts of violence during a strike are protected.   In his decision Judge Randazzo wrote that Mr. Runion was

discharged for engaging in picketing activity protected by Section 7 of the Act, and that his conduct on the picket line, while racist and offensive, was not violent in character, not accompanied by violent or threatening behavior, it did not raise a reasonable likelihood of an imminent physical confrontation, and it did not reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights.

Cooper Tire has indicated that it intends to appeal Judge Randazzo’s decision to the Board.  Employers, organized labor, and counsel alike will watch with careful attention to see whether this Board will reverse what many believe to be outdated and archaic precedent decisions relied on by Judge Randazzo, or allow federal labor law to continue to be used as a shield for workplace racism.  As always, HRLegalist will follow this matter closely and report developments for our readers.