A company that fired an employee for violating its workplace anti-harassment policies by making racist remarks on a picket line has been ordered to give him his job back with back pay plus interest.
The fired employee, who was a member of the United Steelworkers union, had made the racist statements in 2012 while on a picket line protesting a management lockout.
The employer, Cooper Tire & Rubber Company of Findlay, Ohio, had locked out its 1,050 unionized employees as a result of a collective bargaining agreement dispute, and hired temporary replacement workers to keep manufacturing tires.
The replacement workers including many African-Americans. As vans carrying them into the plant arrived to work on January 7, 2012, picketing union member Anthony Runion, a white employee who had worked at the plant for five years, yelled several racist statements, which were videotaped, at the vans, including:
- “Hey, did you bring enough KFC for everyone?” and
- “I smell fried chicken and watermelon!”
As the vans crossed the picket lines, the union members held up signs and yelled objections to the replacements entering the plant. Their statements included profanity, name-calling, accusations that the replacement workers were un-American and were stealing the locked out employees’ jobs, statements that the picketers did not want them there, and demands that they “go home” and “get out of here.”
Runion also held up his middle finger at the vans, and an unidentified person shouted, “f___ing monkey scabs” and “f___ing ni__er scabs.” Another unidentified person yelled at the replacement workers, “Go back to Africa, you bunch of f___ing losers.”
Cooper Tire fired Runion, and when his union grieved his termination, an arbitrator upheld the Company’s decision, finding that there had been “just cause” for the employer’s decision. The arbitrator found that Runion’s racist statements violated the explicit terms of Cooper Tire’s harassment policy because both statements were related to race and were disrespectful of the dignity and feelings of the African-American replacement workers. The union appealed to the National Labor Relations Board (NLRB).
When the dispute reached NLRB Administrative Judge Thomas M. Randazzo of Washington, D.C., he ordered Cooper Tire to reinstate Runion with back pay, holding that his firing had violated the National Labor Relations Act (NLRA).
The NLRA protects employees’ freedom of speech and guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
“I find that Runion was discharged for engaging in picketing activity,” the judge decided. “Runion’s ‘KFC’ and ‘fried chicken and watermelon’ statements most certainly were racist, offensive, and reprehensible,” wrote Judge Randazzo in a June 5, 24-page decision, “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 Runion towards the replacement workers in the vans.”
The judge stated that the arbitrator’s ruling upholding Runion’s termination was “clearly repugnant” to the NLRA in part because picketing activity “is evaluated by a different standard than workplace activity.”
“Runion’s conduct and statements did not tend to coerce or intimidate employees in the exercise of their rights under the Act [NLRA],” wrote Judge Randazzo, “nor did they raise a reasonable likelihood of an imminent physical confrontation. … The Board [NLRB] has held that a striker’s or picketer’s use of even the most vile language and/or gestures, standing alone, does not forfeit the protection of the Act, so long as those actions do not constitute a threat.”
Judge Randazzo’s order can be appealed to the NLRB in Washington if Cooper Tire chooses to do so. If no appeal is filed, the judge’s order becomes the order of the NLRB.
The National Labor Relations Board is an independent federal agency that sits in the nation’s capital with the mission of protecting the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions. All five current Board members have been appointed by President Obama. Three are Democrats and two are Republicans. Judge Randazzo’s decision can be accessed online in PDF format at http://www.nlrb.gov/case/08-CA-087155.