July 15, Racist Slurs on Picket Line
A National Labor Relations Board judge has ruled that Cooper Tire & Rubber Company in Ohio, unlawfully fired Anthony Runion who made racist statements on a picket line. Runion made fried chicken and watermelon comments after a truck carrying predominantly black temporary workers. The judge has ruled that the company must offer to rehire him, labeling an arbitrator’s decision that found the termination justified “palpably wrong.”
Administrative Law Judge Thomas Randazzo said the NLRB has held that even the most vile language and gestures do not lose the protections of the National Labor Relations Act as long as the language or gestures don’t constitute a threat. The judge then gave Cooper Tire two weeks to offer to reinstate Anthony Runion.
After a collective bargaining agreement between Cooper Tire & Rubber and the United Steelworkers expired in late 2011, the company locked bargaining unit employees out of a facility in Ohio, and instead used temporary replacement workers, many of whom were black.
In January 2012 picketers were by the facility’s entrance holding up signs and yelling at vanloads of replacement workers. Seconds after a van went by, Runion turned to the main gate where the van had gone and yelled “Hey, did you bring enough KFC for everyone?” according to the ruling.
Runion later allegedly said “I smell fried chicken and watermelon.” He admitted making the KFC statement but denied making the “fried chicken” statement even though Judge Randazzo said that video of that event showed he made both statements.
Runion’s statements were racist and objectionable but they weren’t bad enough to strip the protection of the NLRA away from his protected picketing activity, the judge ruled.
“Runion’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,” Judge Randazzo wrote. “The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.”
The ruling cited that Runion had his hands in his pockets therefore was not making threatening gestures, when making the statements. It also pointed out that the statements came after replacement workers had passed Runion. The “KFC” statement came six seconds after a van passed and the “fried chicken” statement came 27 seconds after replacement workers went by, according to Judge Randazzo’s decision.
By March 2012, the union and Cooper Tire & Rubber had reached a new agreement and the union filed a grievance and claimed that Runion’s termination for his racial comments wasn’t for just cause, which set the stage for a July 2012 arbitration hearing and a May 2014 ruling.
The arbitrator, who found that Cooper had just cause for the firing, determined Runion made both of the statements in question and that both statements violated Cooper’s harassment policy. Though there was no evidence of violence on the picket line, the fact that violence was a “genuine possibility” added to the seriousness of Runion’s comments, the arbitrator said.
But the arbitrator’s reasoning provides picket line conduct less protection than the NLRA affords, according to Judge Randazzo, concluding that the arbitrator’s award is “clearly repugnant” to NLRA.
In addition to offering Runion full reinstatement, Cooper Tire & Rubber must also “make him whole” for any earnings or benefits he lost due to “the discrimination against him,” Judge Randazzo said.