Racist comments, similar to other forms of employee misconduct (e.g., workplace violence or theft), usually result in termination. Anyone with an ounce of common sense knows this. The National Labor Relations Board, however, upheld an Administrative Law Judge’s prior decision declining to follow an arbitrator’s ruling and ordered Cooper Tire & Rubber Co. reinstate an employee, with back pay, after he was terminated for making racist statements on a picket line. This untenable Board decision was previously blogged about here. Fast forward to August 8, 2017, where a divided Eighth Circuit Panel, in a 2-to-1 ruling, upheld this NLRB decision.

The facts are straightforward: the Company, after failing to negotiate a new contract, locked out its employees and hired temporary replacement workers, many of whom were African-American, to resume operations during the lockout. As a result, the locked out employees began picketing. One night, picketer Anthony Runion (“Runion”) made racist comments aimed towards replacement workers travelling in a van across the picket line. Specifically, Mr. Runion yelled, “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.” After the resolution of this labor dispute, the Company refused to reinstate Mr. Runion because of these racist comments. The union subsequently grieved this matter and an arbitrator upheld the Company’s decision.

The split Court, in agreement with the Board, rationalized Mr. Runion’s comments by relying on case law that tolerates racist conduct by employees if done during a labor dispute and, significantly, is unaccompanied by any threats or violence. The Court, in deferring to the Board’s illogical precedent protecting this type of action, agreed that Mr. Runion’s comments were:

[N]ot violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.

The Court also rejected the Company’s reliance in terminating Mr. Runion “for cause” under Section 10(c) of the Act as it differentiated between “for cause” and “just cause” when dealing with a “prohibited reason” and “loss of employment stem[ming] directly from an unfair labor practice.” The Court deferred to the Board’s rationale by holding “that ‘Runion was discharged for a prohibited reason—the protected activity of engaging in picketing.’ Since Runion was discharged for a ‘prohibited reason,’ Cooper did not fire Runion ‘for cause’ under Section 10(c).” Notably, the Court also found that the Board had not abused its discretion by disregarding the arbitrator’s decision as the NLRB is free to overturn arbitrator rulings that are “clearly repugnant” to the Act.  Critically, the Court held that restraining picket line speech such as Mr. Runion’s would fly in the face of “well-established precedent giving greater protection to picket-line misconduct.”

The Court here had the opportunity to denounce racist comments such as Mr. Runion’s, but instead, decided to affirm this behavior when arising in the midst of a labor dispute. Employers, specifically in the Eighth Circuit, must somehow strike a balance between condemning racist comments made by its employees and respecting employees’ rights during lockouts and strikes. This task, however, has become much harder after this decision and I, like many others on the management-side bar, am in complete agreement with Judge C. Arlen Beam, the lone dissenter, when he stated, “the Board repeatedly broadens the protections for such repulsive, volatile, incendiary, and heinous activity time and again in cases such as these.”

In the end, it is readily admitted that protected activity such as picketing can lead to heated words, insults and, generally speaking, an apprehensive and tense environment. This industrial reality, however, should not give employees a pass on racist and discriminatory remarks. An employee can utilize their Section 7 rights and advocate for their side without spewing dangerous and bigoted comments at a specific group. This decision, like several others the Board has issued, downplays this commonsense notion and condones racist behavior as long as it occurs on a picket line. No employer should be forced to tolerate and employ individuals who engage in such behavior. Sadly, as attainable as this feat may seem (i.e., an employer should be able to terminate a racist employee), that is not the world we live in today.

Accordingly, employers should continue to seek legal counsel before disciplining employees for any conduct related to a labor dispute – picketing, lockouts, or strikes – or any action an employee takes concerning their terms and working conditions