In a decision that should unsettle employers, a National Labor Relations Board administrative law judge ruled last week that Cooper Tire & Rubber violated the National Labor Relations Act by unlawfully terminating an employee who made racist statements on the picket line.  [Cooper Tire decision]  Even worse, Cooper Tire must offer to rehire the racist employee.

The case arose after Cooper Tire’s collective bargaining agreement with the United Steelworkers (USW) expired in 2011.  The company locked its unionized employees out and began using temporary replacements instead.  Many of those temporary replacements were African American.

In January 2012, several vans full of replacement workers drove past the pickets.  A locked-out Cooper employee, Anthony Runion, yelled several racist statements at the vans as they drove by, including:

  • “Hey, did you bring enough KFC for everyone?” and
  • “I smell fried chicken and watermelon!”

Runion was terminated from employment.  The union grieved his termination, and the arbitrator upheld the Company’s decision under the principles of “just cause” because the statements violated Cooper’s harassment policy.  But the administrative law judge ruled that the harassment policy was of no moment here:

“Runion’s ‘KFC’ and ‘fried chicken and watermelon’ statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property,” Judge Randazzo wrote. “The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.”

The judge further explained that the arbitrator’s ruling gave short-shrift to the protections that the Act grants to picket line conduct.  As such, the arbitrator’s affirmance of the company’s termination of Runion was “clearly repugnant” to the Act.

Cooper must now not only offer to rehire Runion, but must also make him whole for any lost earnings and benefits.

This decision should make employers stand back and take notice.  The Board and its judges have clearly chosen to grant broad protections to even the most vile picket line conduct, so long as that conduct is not accompanied by threats of violence.  Accordingly, employers should tread very carefully when making adverse employment decisions during a strike or a lockout, as an unlawful termination could have serious financial repercussions.