On November 10, 2015, the National Labor Relations Board granted the National Association of Manufacturers’ motion to file an amicus brief in Cooper Tire & Rubber Co., Case No. 8-CA-87155, in which the employer is challenging an administrative law judge’s decision requiring the employer to reinstate an employee who made racist statements on the picket line. The case arose when the parties’ collective bargaining agreement expired and the employer locked out its employees and began using temporary replacements. Many of those temporary replacements were African American. When several vans of replacement workers drove past the pickets, a locked-out employee yelled several racist statements at the vans, including:

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

The employer terminated the employee for those statements, and the union grieved and arbitrated the termination. Although an arbitrator upheld the termination, a NLRB administrative law judge found that the harassment policy did not justify the termination:

The employee’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. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by [the employee] 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 decision affirming the termination was “clearly repugnant” to the Act. As a result of the ALJ’s findings, the employer was ordered to reinstate the employee.

In its amicus brief, NAM asserts that the ALJ decision:

cannot be allowed to stand. The Board must recognize the important purposes underlying federal anti-discrimination and anti-harassment statutes enacted by the United States Congress and acknowledge employers’ obligations—both legal and moral—to protect employees’ right to be free from discrimination and harassment in the workplace. Further, the Board should affirm its stance against racial discrimination and harassment, harmonize its interpretation of the Act with the clear federal policies prohibiting racism, and determine employees do not have any statutory right to engage in discriminatory and harassing conduct. For these reasons, which are discussed more fully below, the Board should overrule the ALJ Decision and determine that racist statements have no protection under the Act.

The parties have until November 24 to respond to NAM’s brief.