Updated: Giving the Middle Finger and Making Racially Inflamatory Comments on the Picket Line Does Not Entitle An Employer to Fire the Employee

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 ("NLRA").  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.

Holding:  The Court of Appeals noted at the outset that Section 7 of the NLRA guarantees employees the right to "assist labor organizations...and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection."  Section 8 of the National Labor Relations Act prohibits employers from interfering with, restraining, coercing, or discriminating against employees in the exercise of these Section 7 rights.

In part, "one of the necessary conditions of picketing is a confrontation in some form between union members and employees."  A court therefore analyzes picket line conduct under the Clear Pine Mouldings test:  a firing for picket line misconduct is an unfair labor practice unless the alleged misconduct "may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the [National Labor Relations] Act."  Bear in mind that application of this test is objective.

Cooper pointed the Court to two cases that applied the Clear Pine Mouldings test and established no violation of the NLRA had occurred when those employees were terminated after they engaged in harassing conduct.  The Court was quick to point out that those two cases were easy to distinguish, as based upon the facts in this case, Runion's comments were not directed any particular individual nor were they on display for an extended period of time. 

Judgment:  The Eighth Circuit Court of Appeals upheld the National Labor Relations Board's ruling and held that the employee had been unlawfully terminated in violation of his Section 7 NLRA rights when he engaged in protests on a picket line while employees were locked out during a collective bargaining dispute.

The Takeaway:  Readers might recall that back at the end of 2016, I pointed out this case that was pending in the Eighth Circuit Court of Appeals.  While I do not generally agree with the Court's holding, ultimately, I think the caselaw backed up their conclusion.  As other courts have noted, a picketer's "use of obscene language and gestures and a racial slur, standing alone without any threats of violence, did not rise to the level where he [the employee] forfeited the protection of the Act."  The Eighth Circuit noted early in its opinion that in essence, wide latitude is given to conduct on the picket line.  Generally speaking, some form of tension/confrontation on a picket line is deemed to be "acceptable" and an employer likely cannot terminate an employee who engages in "poor" behavior.  

When applying the Clear Pine Mouldings test, based upon the facts of this case, I think Cooper had a difficult (if not impossible) argument to make that Runion was lawfully terminated.  As noted by the Court, Runion's comments were not directed at any particular individual, were not on display for an extended period of time, did not outright threaten violence, nor was it clear that any replacement worker actually heard his comments.  Quite simply, by applying this objective test and without being able to establish that Runion's alleged misconduct reasonably tended to coerce or intimidate employees in the exercise of rights protected under the Act, Cooper had little ground to stand on.

Majority Opinion Judge:  Judge Benton

Date:  August 8, 2017

Opinion:  http://media.ca8.uscourts.gov/opndir/17/08/162721P.pdf