Skip to main content

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.

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per
Post a Comment
Read more