The National Labor Relations Board promotes itself as a government agency that “safeguards employees’ rights,” but you would not know it from a recent ruling upholding racist statements made by union supporters on a picket line. Earlier this month, in Cooper Tire & Rubber Company an administrative judge of the NLRB found that racist taunts made by strikers against African-American employees crossing a picket line were protected under the law.
In the midst of a strike, Anthony Runion, a strike supporter, yelled towards a van of African-American employees crossing a picket line, “Hey, did you bring enough KFC for everyone?” Other employees then yelled “Go back to Africa, you bunch of f—ing losers” and referred to the employees as “f—ing monkey scabs” and “f —ing n—er scabs.” Runion added “Hey, anybody smell that? I smell fried chicken and watermelon.” The whole episode was recorded on someone’s cellphone. Runion was subsequently fired for his conduct.
The union grieved his termination and the arbitrator upheld it as proper. But when the union appealed that decision, the NLRB judge found that Runion was terminated because he engaged in protected activity during a strike and ordered him to be reinstated. Under the law, an employer can discipline or terminate an employee if he takes action that is designed to or is reasonably likely to coerce or intimidate employees. Shockingly, the judge found that Runion’s statements were unquestionably “racist, offensive, and reprehensible,” but they were not threatening nor violent (so he believed) and thus were protected. The judge refused to consider the company’s harassment policy and its legal obligation to take prompt and effective remedial action to protect employees from racial harassment.
While this decision can be reversed by either the full NLRB and by a Circuit Court of Appeals, it does beg the question: if this is protected, then what isn’t? Is the right to organize really so important that employers have to set aside harassment and discrimination laws? If this decision is valid how can employers be expected to comply with the law?
The NLRB has not issued a comment in connection with this decision, but it stands to reason that if the full NLRB approved of this decision, it would be a major issue in an election year – much like the NLRB’s now-infamous 2011 decision to block Boeing from moving a plant from Washington to South Carolina. More than anything else, it highlights the NLRB’s narrow-minded focus on employees’ rights to organize collectively and its ignorance of any other laws that interfere with that right.