In Cooper Tire & Rubber Co. v. NLRB, 16-2721 (Aug. 8, 2017), the Eighth Circuit upheld a decision by the NLRB that Cooper Tire violated the National Labor Relations Act by firing an employee for making racist statements while on the picket line. This case has received a lot of attention because it has been seen by some as pitting an employer's competing obligations under Title VII of the Civil Rights Act of 1964 against its obligations under the NLRA. As discussed below, even though the court upheld the Board's decision in this case, it cautioned the Board not to go too far.
Cooper Tire fired Anthony Runion for statements he allegedly made while on the picket line. On January 7, 2012, he allegedly yelled, "Hey, did you bring enough KFC for everybody?" and "Hey anybody smell that? I smell fried chicken and watermelon." He directed the comments at a van carrying replacement workers as it crossed the picket line. When he made the statements, Runion's hands were in his pockets, and he made no overt physical movements or gestures. Although other picketers heard the statements, there was no evidence that the replacement workers heard them. The next month, when Cooper Tire began recalling workers who had been on strike, it fired Runion for the picket line statements.
The court explained that firing an employee for picket line misconduct is an unfair labor practice in violation of the NLRA unless the alleged misconduct "may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." Substantial evidence supported the Board's conclusion that Runion's statements were "not violent in character, and they did not contain any overt or implied threats to replacement workers or their property." Runion also did not engage in threatening or intimidating conduct toward the replacement workers. Thus, the court deferred to the Board's determination that Cooper Tire violated the NLRA by firing Runion.
Although the court upheld the Board's determination, it "agree[d]" with a concurrence in a D.C. Circuit decision that suggested that the Board should be careful not to cross the line:
We have cautioned the Board before against assuming that 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 Board'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 Board decisions' repeated forbearance of . . . racially degrading conduct in service of that admirable goal goes too far.
For whatever reason, the court apparently concluded that the Board had not crossed the line in this case, but the court opened the door to the possibility that it might reject Board decisions protecting other forms of racist conduct.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.