In what, to the author, seems like the most illogical position for a Government Agency to take, the National Labor Relations Board is pushing the 8^th Circuit to rule that racial statements made by an Employee on a picket line are protected under Federal Labor Law.

The Labor Board is urging the 8^th Circuit to uphold a May 2016 Ruling by the Board, which upheld Administrative Law Judge Thomas Randazzo’s decision that Cooper Tire and Rubber Company must reinstate, with full back pay, Anthony Runion after he was terminated for shouting racial slurs at Temporary Workers, a vast number who were African American. These “Temporary Workers” were working due to an ongoing Labor Dispute between Cooper Tire and United Steel Workers. It is interesting to note that this incident occurred at Cooper’s Findlay, Ohio Facility which employs over 1,000 Production and Maintenance Workers. When the Collective Bargaining Agreement between Cooper and the United Steel Workers expired in the latter part of 2011, picketing occurred at the Facility and Mr. Runion was clearly identified as shouting statements to the Temporary Workers that referenced “fried chicken and watermelon”. While no actual violence occurred at the location during the picketing, involving Mr. Runion and any Temporary Workers, it was quite clear that Mr. Runion had, in fact, made these comments.

In the opinion of Judge Randazzo and the NLRB, even though the Replacement Workers were “on the job” to take the place of the picketing Employees, including Mr. Runion, given the adversarial context of the picket line and its standard protected status under the National Labor Relations Act, “any misconduct on the picket line is analyzed under a more forgiving standard”. Really!! What if Mr. Runion had thrown eggs at the Replacement Workers – would this have been forgiven as well under the “more forgiving standard?”

It is further interesting to note that when Cooper Tire initially fired Runion, the matter was taken up under the Contract’s Grievance Procedure and his discharge was upheld by the Arbitrator in 2014. The Board has had a long established standard of “deferral to arbitration”, so why not in this case? For some strange reason, even though by Federal Law Arbitrators’ decisions are considered final unless the decision is premised on Arbitrator Misconduct, or totally against the weight of the evidence, the NLRB has seen fit to force this issue with Cooper Tire.

In the opinion of the author, how would the NLRB or, for that matter, the EEOC, feel if an individual, while peacefully picketing at the White House, or, for that matter, at any location, other than a “labor picket line”, were to yell out to any African American individual the same racial slurs used by Mr. Runion, I am sure that the entire force and full weight of the Federal Government would come down on that “peacefully picketing individual”. This type of verbiage, regardless of context or place of utterance, is insulting and totally inappropriate. To defend anyone’s utterance of these words is stupid and unacceptable – for a Federal Government Agency to do it is beyond explanation!

It is time that someone in the NLRB gets a tinge of common sense and they quit pushing the Union B.S. that they have been pushing over the last five (5) or six (6) years. There is no doubt that the “draining of the swamp” should start at the NLRB’s Washington Headquarters.

Questions? Contact Attorney Walter J. Liszka in our Chicago office at (312) 629-9300 or be email at waliszka@wesselssherman.com