From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
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 email@example.com
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.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)