
In the Cooper Tire case, the
Eighth Circuit Court of Appeals examined tensions between behavioral protections for picketing workers under the federal
National Labor Relations Act and an employer’s Title VII obligation to provide
a workplace free from behavioral
harassment based on race. Cooper Tire involved the lock out of union employees
after failed collective bargaining negotiations. During the lock-out, a
picketing employee yelled racial slurs at a van carrying replacement workers of
color to the workplace. Cooper Tire fired that employee.
Were those racial slurs
protected?
The Eighth Circuit ruled “yes.”
It held that Section 7 of the National Labor Relations Act protects
employees’ right to “engage in other concerted activities for the purpose of
collective bargaining.” The Court noted that a number of federal courts have
interpreted Section 7 to protect marginal (if not outright inappropriate) conduct
from employees on picket-lines. The Circuit Court of Appeals for the District of Columbia,
for example, has held that “[i]mpulsive behavior on the picket line is to be
expected . . . ,” and the Second Circuit has written that a “necessary
condition of picketing is a confrontation in some form . . . .” Relying on its own precedent, the Eighth
Circuit held that firing the employee for his racial slurs violated the NLRA
largely because the conduct was not directed to a particular person and did not
continue over a long period of time.
In Cooper Tire, the Court
distinguished an earlier Eighth Circuit picket-line case where the picketing
employee held up a lewd and highly offensive sign about another employee who
was crossing the picket-line. Because in that situation the conduct was
directed at a particular, identifiable employee and the sign was held up for
several minutes during the protest, the Court held that the conduct justified
termination despite Section 7.
Is this factual difference really
a sufficient distinction warranting a different result?
Dissenting rather vehemently, Judge Beam did not think so. “No employer
in America is or can be required to employ a racial bigot. Indeed [], the
court’s requiring of [Cooper Tire] to do so here ‘is tantamount to requiring
that Cooper Tire violate federal anti-discrimination and harassment laws . .
..’” Referring to the majority’s decision as “this presently mishandled
dispute,” Judge Beam identified what he thinks are the two key questions for
the analysis: (1) did the employee exhibit racial bigotry directed at African
American employees; and (2) is the exercise of such bigotry protected by the
terms and conditions of the National Labor Relations Act. He writes: “The
answer to question one is clearly yes and the answer to query two is
undoubtedly no!”
Unlike the Cooper Tire case,
the events in Charlottesville last weekend obviously did not involve picketing
employees or a protest of a particular employer’s practices. The Cooper Tire case is a good illustration,
however, of the fact that employer obligations are complicated and consulting
with counsel in deciding whether to fire an employee for racist behavior is
wise.
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