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Despite his racist comments toward replacement workers, firing picketer violated NRLA

By Lorene D. Park, J.D.

Noting that “impulsive behavior on the picket line” is expected, and termination for picket line conduct violates the NLRA unless the conduct tends to “coerce or intimidate employees in the exercise of rights protected under the Act,” a divided Eighth Circuit enforced a controversial NLRB order finding that Cooper Tire unlawfully fired an employee who yelled racist remarks at a van carrying African-American replacement workers but who did not behave threateningly. Judge Beam dissented, finding this decision tantamount to requiring Cooper to violate Title VII and other discrimination laws (Cooper Tire & Rubber Co. v. NLRB, August 8, 2017, Benton, W.).

Cooper, which has about 1,000 workers at an Ohio tire-manufacturing plant in Ohio, locked out union employees after negotiations failed to renew a collective bargaining agreement (CBA). Union workers picketed the plant while Cooper relied on replacement workers. Many of the replacements who crossed the picket line, usually in Cooper’s vans, were African-American.

Fired over racist picket line comments. On January 7, 2012, one of the locked-out picketers yelled “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.” The comments were directed at a van carrying replacement workers but there is no evidence they heard him (though dozens in the crowd did). While he was yelling, the employee kept his hands in his pockets and made no overt gestures. Nonetheless, instead of recalling the employee when it recalled others who were locked out, Cooper fired him for the January 7 statements.

The union filed a grievance and the arbitrator found “just cause” for the termination under the CBA. The union then submitted the case to an administrative law judge, who found that Cooper violated the NLRA. The Board agreed and ordered the employee reinstated with pay.

When does firing for picket-line conduct violate the NLRA? Denying Cooper’s petition for review, the Eighth Circuit noted that Section 7 gives locked-out employees the right to picket, that one of the “necessary conditions of picketing is a confrontation in some form between union members and employees,” and that “[i]mpulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers.” The Eighth Circuit applies the Clear Pine Mouldings test, under which “a firing for picket-line misconduct is an unfair labor practice unless the alleged misconduct ‘may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.’”

In arguing that the employee’s discharge did not violate the Act, Cooper Tire relied on a case in which a picketer held up, for five minutes, a sign stating “Who is RhondaF Sucking Today?” In that case, the court held that the singled-out woman would feel coerced, intimidated, or harassed. Here, though, no individual was singled out by the picket-line remarks, which weren’t directed at any one individual. Nor did the comments go on for an extended time. Instead, the employee’s words were a “package of verbal barbs thrown out during a picket line exchange.”

Conduct unpleasant and uncalled for, but still protected. To the appeals court, this case was more similar to the cases on which the Board relied, in which picketers used vulgar gestures and screamed epithets at replacement workers but did not use any threats or violence. In such cases, the picket line conduct is “totally uncalled for and very unpleasant,” but they could not objectively be seen as an implied threat of the kind that would coerce or intimidate a reasonable replacement employee from working. Given this precedent, the Eighth Circuit concluded that it was not “illogical or arbitrary” for the NLRB to protect the employee’s statements, which were not violent in character, did not contain overt or implied threats, and were not accompanied by threatening behavior or intimidating actions toward the replacement workers.

Comments didn’t create hostile work environment. The appeals court was unswayed by Cooper’s argument that reinstating the employee would conflict with its Title VII obligations. Even if the comments had been made in the workplace instead of on the picket line, they would not have created a racially hostile work environment under Eighth Circuit precedent.

“Just cause” under CBA not “for cause” under NLRA. Also rejected was Cooper’s assertion that because the arbitrator found “just cause” to fire the employee under the CBA, the firing was “for cause” under Section 10(c) of the NLRA. The CBA’s term encompasses principles such as the law of the shop, fundamental fairness, and related arbitral decisions, while under Section 10(c), “for cause” effectively means “the absence of a prohibited reason.” Here, the NLRB concluded the employee was fired for a prohibited reason—picketing—so it was not “for cause.”

No deference to arbitrator. Nor did the Board abuse its discretion in not deferring to the arbitrator. The arbitrator said the employee’s remarks “would have been serious misconduct in any context, but in the context of the picket line, where there was a genuine possibility of violence, his comments were even more serious.” This view of the comments was inconsistent with established law, which accounts for the “rough and tumble” atmosphere of picket lines and offers misbehaving picketers greater protection from discipline than they usually enjoy.

Judge Beam dissents. Dissenting, Judge Beam flatly stated: “No employer in America is or can be required to employ a racial bigot” and court’s decision was “tantamount to requiring that Cooper Tire violate federal anti-discrimination and harassment laws, including Title VII . . . .”