ST. LOUIS (Legal Newsline) -
The U.S. Court of Appeals for the Eighth Circuit is preparing to hear the appeal of a company being forced to rehire a striking employee who was fired for yelling racist comments at replacement workers.
Cooper Tire and Rubber Company has appealed a National Labor Relations Board ruling to the U.S. Court of Appeals for the Eighth Circuit, asking that it reverse a decision requiring the company to rehire an employee it had fired.
An arbitrator had ruled for Cooper Tire after the firing, but the NLRB refused to accept that result.
“It puts businesses in a real quandary, because they’re danged if they do and danged if they don’t,” said Tim Garrett, a labor and employment attorney with Bass Berry Sims in Nashville, Tenn.
“If the employee was brought back in, you could imagine the racial tension.”
Employees of Cooper Tire in Findlay, Ohio, went on strike in late 2011, and Cooper Tire brought in replacement workers who were primarily black. On Jan. 7, 2012, court records state that employee Anthony Runion was heard yelling racist remarks at the replacement workers like “Hey, did you bring enough KFC for everyone?” and “I smell fried chicken and watermelon.”
Cooper Tire fired Runion on March 1, 2012, due to misconduct on the picket line because of his racial statements. The company brought in an outside arbitrator, who sided with Cooper Tire and said there was more of a threat of violence as a result of these comments because they were made on a picket line.
“(However), the NLRB decided not to defer to the arbitrator's decision, which is a big deal,” Garrett said.
"The NLRB took matters upon themselves and said the termination was unlawful and Runion’s speech is protected by the National Labor Relations Act because he didn’t say anything aggressive or threatening."
An administrative law judge reversed the decision, requiring Cooper Tire to rehire Runion and pay him back pay.
The ALJ found that although Runion’s statements were clearly racist and offensive, “there is no evidence to establish that the statements contained overt or implied threats, that they coerced or intimidated employees in the exercise of their rights protected under the act, or that they raised a reasonable likelihood of an imminent physical confrontation.”
On May 17, the NLRB issued a decision adopting the judge's findings in favor of Runion.
The NLRB says the Eighth Circuit should not be persuaded by Cooper Tire's arguments, which include that the arbitrator's decision should have been final.
"At bottom, the Company's view seems to be that deferral should occur when an arbitrator has issued an award - any award," the NLRB wrote to the Eighth Circuit.
"But the general policy favoring arbitration does not strip the Board of its jurisdiction over and obligation to adjudicate unfair-labor-practice cases."
It also claims the arbitrator erred in holding Runion to a harsher standard because the racial comments occurred on a picket line.
"(T)he Board gives more leeway to picket-line conduct than to workplace conduct because it is not uncommon for picketing employees to use impassioned, inappropriate language, and picketing occurs in the context of an adversarial struggle that takes place off-site and off-duty," the NLRB wrote.
According to Garrett, Cooper must prove that it did not single out Runion because he was on the picket line and that if an employee not on strike said similar things, similar action would be taken.
Several companies and organizations, including the National Association of Manufacturers (NAM), have written amicus briefs in support of Cooper Tire, asking the court to reverse the decision. In NAM’s brief, it said, “There is no legitimate purpose for protecting racist comments and harassment.”
If the decision is upheld, it could be much harder for employers to punish racism in the workplace.
“How far must racial conduct go to justify a termination?” Garrett said. “What’s surprising to me is in this day and time is that we’re seeing a case like this.”
Both Garrett and NAM see the need to allow companies to fight racism in the workplace because of national tensions. NAM mentioned acts of violence against members of the Black Lives Matter movement along with the shooting deaths at Emanuel African Methodist Episcopal Church in Charleston, South Carolina.
“It [this case] is sad in a time where we’re trying to heal,” Garrett said. “We can all list times of violence.”
The Eighth Circuit is in the process of scheduling oral arguments.