In a ruling which was a bit of a surprise to some in the employer community, a Judge of the National Labor Relations Board recently concluded that racist a speech made during picketing of an employer qualified as protected activity under Section 7 of the National Labor Relations Act (the “Act”). 

In Cooper Tire & Rubber Company v. United Steel, union workers were locked out by Cooper Tire after the union members failed to ratify a new collective bargaining agreement.  Thereafter, those members began to picket Cooper Tire in protest of the lockout.  During the lockout, Cooper Tire brought in replacement workers to the plant – many of whom were African-American.

One day, after a van full of replacement workers passed the picket line in front of the plant, one of the union members, Anthony Runion, yelled towards the van, “Hey, did you bring enough KFC for everyone?”  After Mr. Runion’s statement, an unidentified individual yelled “Go back to Africa, you bunch of f***ing losers.”  Shortly following that statement, Mr. Runion stated “Hey, anybody smell that? I smell fried chicken and watermelon,” which resulted in laughter by the picketers.  All of these remarks were recorded on video.

After the union and Cooper Tire agreed to a new collective bargaining agreement, Mr. Runion was terminated for violating Cooper Tire’s harassment policy.  In response to Mr. Runion’s termination, the union filed a grievance alleging that Cooper Tire violated their CBA.  After the union and Cooper Tire agreed to submit their dispute to arbitration, the Arbitrator found that Cooper Tire did not violate the Agreement and instead discharged Mr. Runion for proper cause.  The union appealed the Arbitrator’s decision and asserted that Mr. Runion’s termination violated Sections 8(a)(1) and (3) of the National Labor Relations Act.

The main substantive question before the Judge who heard the appeal from the Arbitrator’s decision was whether Mr. Runion’s speech was protected activity under Section 7.  While employees have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection under Section 7, an employer typically may discipline an employee who engaged in those otherwise protected activities if the employee’s conduct under the circumstances may reasonably tend to coerce or intimidate employees.  This test is an objective test, so a particular employee need not actually be coerced or intimidated.

The Judge determined in this case that, although the statements made by Mr. Runion were “racist, offensive, and reprehensible,” they did not amount to a threat since they were not violent in nature nor did they contain explicit or implicit threats to workers or their property.  In his analysis, the Judge noted that Mr. Runion made these statements with his hands in his pockets, did not accompany his statements with threatening gestures, and made these statements 6 seconds and 27 seconds after the replacement workers had passed.  As such, he concluded that Mr. Runion’s statements were protected under Section 7 of the Act regardless of Cooper Tire’s harassment policy.

Although the Judge’s decision is in line with many pro-employee rulings and actions from the agency in recent years, it’s hard to deny that the case will probably make it harder for employers in the future to respond to picketers engaging in certain abusive behavior during activities otherwise protected under Section 7 of the Act – including conduct that isn’t necessarily tied to race.  While these cases are fact-specific, the Cooper Tire opinion tends to put employers in a catch-22, forcing them to pick between permitting such behavior at the risk of being found to have violated the NLRA, or enforcing their existing policies which protect other employees from harassment and related conduct.

Time will tell whether Cooper Tire appeals the Judge’s decision to the full Board in an attempt to get a reversal of this precedent, but for now, prior to taking adverse action against an employee for actions or statements made during a protected concerted activity under Section 7, employers need to think twice and act even more deliberately than usual in these situations.  Unfortunately, we are saying that more and more often these days when it comes to decision-making which falls under the realm of Board jurisdiction.