"In a ruling which was a bit of a surprise to some in the employer community, a Judge of the National Labor Relations Board recently concluded that racist speech made during picketing of an employer qualified as protected activity under Section 7 of the National Labor Relations Act (the “Act”).
In Cooper Tire & Rubber Company v. United Steel, union workers were locked out by Cooper Tire after the union members failed to ratify a new collective bargaining agreement.
Thereafter, those members began to picket Cooper Tire in protest of the lockout. During the lockout, Cooper Tire brought in replacement workers to the plant – many of whom were African-American.
One day, after a van full of replacement workers passed the picket line in front of the plant, one of the union members, Anthony Runion, yelled towards the van, “Hey, did you bring enough KFC for everyone?”
After Mr. Runion’s statement, an unidentified individual yelled “Go back to Africa, you bunch of f***ing losers.”
Shortly following that statement, Mr. Runion stated “Hey, anybody smell that? I smell fried chicken and watermelon,” which resulted in laughter by the picketers.
All of these remarks were recorded on video.
After the union and Cooper Tire agreed to a new collective bargaining agreement, Mr. Runion was terminated for violating Cooper Tire’s harassment policy.
In response to Mr. Runion’s termination, the union filed a grievance alleging that Cooper Tire violated their CBA.
...The Judge determined in this case that, although the statements made by Mr. Runion were “racist, offensive, and reprehensible,” they did not amount to a threat since they were not violent in nature nor did they contain explicit or implicit threats to workers or their property...
