Eighth Circuit Upholds NLRB’s Reinstatement Of Picketer Yelling Racist Remarks
Published by Eric A. Welter on October 19, 2017
Employers must recognize that the NLRB has given broad latitude in the context of striking and picketing activity, and must carefully review the circumstances before taking any adverse action against a striking employee.
The decision is the latest to highlight the extreme protection the Board has provided picketing employees
In the aftermath of the deadly white supremacist rally in Charlottesville, Virginia last month, many employment lawyers wrote about the legality of terminating employees known to have participated in the rally or to be known to hold racially bigoted views. As a general rule, at-will employees of private companies do not have First Amendment protections for their views and may be terminated for their beliefs or activities outside of work. Several rally participants were subsequently identified and terminated by their employers.
Just three days before the rally, however, the U.S. Court of Appeals for the Eighth Circuit published an opinion affirming a decision by the National Labor Relations Board (“NLRB”) to protect an employee yelling racial slurs at coworkers. The employee was protected for the mere fact that he expressed his abhorrent views from the picket line. The decision is the latest example of the NLRB’s broad interpretation of Section 8(a) of the National Labor Relations Act (“NLRA”) producing absurd results. The case is Cooper Tire & Rubber Co. v. Nat’l Labor Relations Bd., No. 16-2721, 2017 WL 3388971 (8th Cir. Aug. 8, 2017).
After the failure to renew its collective bargaining agreement, Cooper Tire locked out its union employees, who began picketing outside the tire manufacturing plant. During the lockout, Cooper Tire continued operations with replacement workers, many of whom were African-American. During the picketing, one of the union employees was heard yelling at replacement workers, “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.” When the lockout ended, the employee was notified that he was being discharged for these comments.
The union filed a grievance on behalf of the employee, and the arbitrator found just cause to fire him. The union submitted the case to an ALJ, who concluded that the termination violated the NLRA, a decision the NLRB subsequently upheld. The employee was awarded reinstatement and backpay.
Section 7 of the NLRA grants employees the right to engage in concerted activities for the purpose of collective bargaining, and Section 8(a) prohibits employers from interfering with the exercise of Section 7 rights. 29 U.S.C. §§ 157; 158(a)(1)-(3). When the conduct of employees engaged in picketing is analyzed, the Eighth Circuit employs the Clear Pines test: “[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.” Cooper Tire & Rubber Co., 2017 WL 3388971, at *1 (citing NMC Finishing v. NLRB, 101 F.3d 528, 531 (8th Cir. 1996); Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984), enf’d, 765 F.2d 148 (9th Cir. 1985)) (internal quotations marks omitted).
The Court found that, under the Clear Pines standard, offensive comments directed at a specific individual or displayed for an extended period may not be protected, but the comments in this case were merely “verbal barbs thrown out during a picket line exchange.” Cooper Tire & Rubber Co., 2017 WL 3388971, at *2 (quoting NMC Finishing, 101 F.3d at 532). “Impulsive behavior” is to be expected on a contentious picket line and due some level of protection. Cooper Tire & Rubber Co., 2017 WL 3388971, at *1 (quoting Allied Indus. Workers No. 289 v. NLRB, 476 F.2d 868, 879 (D.C. Cir. 1973)). Recognizing the great deference that federal courts must give NLRB decisions, the Court held that the evidence supported the NLRB’s conclusion that the racial comments did not rise to a level to be considered violent in character, nor did they contain any overt or implied threat to the replacement workers or their property, nor were they accompanied by threatening behavior or physical acts of intimidation, none of which would not be protected. Cooper Tire & Rubber Co., 2017 WL 3388971, at *3.
It’s worth noting that Cooper Tire also argued that Title VII created a legal obligation to apply its lawful policy prohibiting harassment and terminate the employee. The Court rejected this argument, however, stating that Cooper Tire was under no obligation to terminate the harassing employee; an obligation for remedial action arose to end the harassment, and a warning or counseling could have sufficed. Cooper Tire & Rubber Co., 2017 WL 3388971, at *3-4.
Cooper Tire is not alone in protecting indefensible behavior under the Section 8(a). For example, in Consolidated Communications, the D.C. Circuit upheld an NLRB decision reinstating a picketer who grabbed his crotch and made an obscene gesture at a female coworker, and in Airo Die Casting, Inc., the NLRB found that a striker was protected when he raised both middle fingers and shouted “f*** you n*****” at an African–American security guard. Consol. Commc’ns, Inc. v. Nat’l Labor Relations Bd., 837 F.3d 1 (D.C. Cir. 2016); Airo Die Casting, Inc., 347 NLRB 810 (2006). To be clear, the holding in Cooper Tire is not the result of the Eighth Circuit interpretation, but due to the level of deference the Court must show to NLRB decisions. Federal courts generally defer to the NLRB and will “enforce the Board’s order if it has correctly applied the law and its factual findings are supported by substantial evidence on the record as a whole, even if we might have reached a different decision had the matter been before us de novo.” Cooper Tire & Rubber Co., 2017 WL 3388971, at *2 (citing NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 779-80 (8th Cir. 2013). Therefore, in order to avoid drastic results like the one in Cooper Tire, the NLRB will have to shift its view of Section 8(a) protections.
Employers must recognize that the NLRB has given broad latitude in the context of striking and picketing activity, and must carefully review the circumstances before taking any adverse action against a striking employee for even abhorrent conduct on the picket line. While the natural impulse of any employer may be to immediately terminate an employee making bigoted statements or offensive gestures, especially against other workers, the NLRB has found such conduct may constitute concerted protected activity protected by Section 8(a) when on display on the picket line. Until a shift in interpretation by the NLRB occurs, the picket line may continue to provide sanctuary for vile conduct.Topics: Employment Discrimination and Harassment, Employment Litigation, Financial Services, Government Contracting, Healthcare, Hiring, Hospitality, Media & Entertainment, National Labor Relations Board, NLRB, Performance Management & Termination, picketing, Retail, striking, Technology, Transportation