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One To Keep An Eye On: Cooper Tire & Rubber Company v. NLRB


As with many employment and labor law related cases (and bills) that are being litigated around the country, there are always a few that stand out.  This is one to keep an eye on.


Cooper Tire & Rubber Company v. National Labor Relations Board - Eighth Circuit Court of Appeals


Facts:  Cooper Tire & Rubber Company ("Cooper") employed Anthony Runion ("Runion") at one of Cooper's manufacturing plants in Ohio.  In late November 2011, Cooper locked out all union-represented workers from the plant and prohibited them from working until a new collective bargaining agreement was reached.  During the course of the lockout, the union peacefully picketed outside the facility.  In early January 2012, Runion and another worker on the picket line gave the middle finger to replacement workers that were being bused into the plant.  Runion was also heard stating "Hey, did you bring enough KFC for everybody" as well as "Hey, anybody smell that?  I smell fried chicken and watermelon." in reference to African American replacement workers that were arriving at the plant.  However, there was no evidence to show that either of the comments were heard by any replacement workers.

After a new agreement was reached with the union, Cooper terminated Runion as a result of his conduct on a picket line during the lockout.  The union filed a charge with Region 8 of the National Labor Relations Board and alleged Runion was improperly terminated in violation of the National Labor Relations Act.  An arbitrator who heard the dispute upheld the discharge, however, an Administrative Law Judge held that Cooper violated the NLRA as Runion had the right to picket and his conduct on the picket line did not tend to coerce or intimidate other employees.

Issue:  Did the employer violate Section 8 of the National Labor Relations Act when it terminated an employee that made racial and inflammatory comments towards African American replacement workers on the picket line?

Current Status:  The case is pending before the Eighth Circuit Court of Appeals at this time.  Over the past several months, several briefs have been filed on the matter, in support of both sides.  At this point, we might still be a ways away from getting a ruling from the Court.

Looking Ahead:  It is important to note that under the NLRA, terminating an employee for participating in a picket line is illegal unless that employee was engaged in activity that may reasonably tend to coerce or intimidate other employees in the exercise of their rights.  It goes without saying that this case really turns on whether Runion's comments could be perceived as coercing or intimidating other employees in the exercise of their rights.  

Based upon the facts, if the replacement workers did not hear Runion's comments, it is somewhat difficult to bridge the gap here.  However, Cooper has argued that regardless of whether the replacement workers heard the comments, protecting Runion's statements serves no statutory purpose of the NLRA.  In this case, Cooper has pointed the Court to the fact that the right of the replacement workers to engage in protected activity and be free from discriminatory and racial comments outweighs Runion's right to be protected under the NLRA.  That is actually not a bad argument to make.

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