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Cooper Tire illegally fired a union member for shouting racist insults at replacement workers during a labor dispute, the U.S. Court of Appeals for the Eighth Circuit held Aug. 8 ( Cooper Tire & Rubber Co. v. NLRB , 2017 BL 275809, 8th Cir., No. 16-2721, 8/8/17 ).
The decision leaves employers in the Eighth Circuit “an untenable choice” between preventing racial discrimination in the workplace and respecting the rights of employees to protest during contentious strikes and lockouts, attorney Rae T. Vann told Bloomberg BNA. Vann filed an amicus brief for the Equal Employment Advisory Council (now the Center for Workplace Compliance) in the appeals court.
“It’s very troubling to me that the court majority didn’t even attempt in any meaningful way to reconcile the ostensible NLRA rights at issue with the employer’s compliance obligations under federal workplace discrimination law,” said Vann, who is a partner in NT Lakis LLP in Washington.
The National Labor Relations Board ruled that Cooper Tire & Rubber Co. unlawfully discharged United Steelworkers member Anthony Runion when a lockout ended, and the appeals court agreed in a 2-1 decision.
Cooper and business groups supporting the company argued that Title VII of the 1964 Civil Rights Act requires Cooper to prevent racial harassment of its employees, including replacement workers, but the Eighth Circuit said Runion’s behavior didn’t justify firing him for picket-line misconduct that was related to a labor dispute.
“We strongly disagree with this finding and are assessing our options moving forward as we seek to uphold our commitment to a workplace free from harassment and discrimination,” Cooper Tire & Rubber Co. told Bloomberg BNA in a statement.
Cooper locked out union workers in a dispute with USW over a new contract, according to the court and NLRB records. Runion was on the union’s picket line when he yelled “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.” Runion was directing his comments at a vanload of replacement workers, many of them black, that had just crossed the picket line.
Cooper settled its contract dispute with the union and most of the locked-out employees returned to work, but the company fired Runion. The NLRB found the discharge was illegal, and Judges Duane Benton and Diana E. Murphy backed the board decision.
Writing for the Eighth Circuit, Benton said there was no evidence the replacements heard Runion’s comments, though dozens of employees on the picket line did.
The company argued it had a right to enforce its rules against racial harassment, but Benton said Title VII didn’t require the employer to go as far as firing Runion.
The United Steelworkers, which intervened in the court proceeding, said there was “zero evidence” that Runion’s “unfortunate remarks” had any effect on the replacement workers, and Benton said the one-time incident on the picket line didn’t creating an unlawful hostile environment under Title VII.
The court said firing an employee for picket-related misconduct is unlawful unless the misconduct coerces or intimidates employees in the exercise of their National Labor Relations Act rights.
Finding Cooper’s Title VII obligations “do not conflict with Runion’s reinstatement,” the court enforced the NLRB’s decision awarding Runion reinstatement and back pay.
Judge C. Arlen Beam dissented. Writing “No employer in American is or can be required to employ a racial bigot,” Beam said the NLRB decision should be “peremptorily reversed.”
Vann said the ruling may force employers to choose between “either fully enforcing their anti-harassment and workplace conduct rules and risking an NLRB charge, or permitting certain employees to evade punishment for harassing behavior simply because it may have coincided with pro-union activity and risking” an Equal Employment Opportunity Commission discrimination charge.
Attorneys for the Steelworkers didn’t reply to requests for comment.
Nancy A. Noall of Weston Hurd in Cleveland argued the appeal for Cooper Tire & Rubber Co. Steelworkers attorney Nathan Kilbert in Pittsburgh argued for the union, and NLRB attorney Valerie L. Collins in Washington argued for the board.
To contact the reporter on this story: Lawrence E. Dubé in Washington at firstname.lastname@example.org
Text of the decision is available at http://bloomberglaw.com/public/document/Cooper_Tire__Rubber_Co_v_NLRB_No_162721_2017_BL_275809_8th_Cir_Au/1?doc_id=xmj3v66g000n.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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