Employee Reinstated by NLRB Despite Making Racist Comments

Can you imagine being at work one day and overhearing a co-worker shouting at black employees, making comments like, "Hey, anybody smell that? I smell fried chicken and watermelon." You would likely expect to later hear that the co-worker shouting this racist comment had been terminated. This is actually a true story, and yes, the employee who was caught on video shouting this and other racist comments was terminated; however, the company was later ordered by the National Labor Relations Board (NLRB) to reinstate him. Why? Believe it or not, it is because of what the employee was doing at the time he made the statements.

What is the National Labor Relations Act?

The National Labor Relations Act was enacted by Congress in 1935. The purpose was to encourage collective bargaining and to curtail private sector labor and management practices which were harming the general welfare of employees, businesses, and the U.S. economy. This Act still plays a pivotal role in today's employment law.

Protections of the National Labor Relations Act

One of the many protections provided by the NLRA is the right to engage in "protected concerted activity." What does that mean? It means employees have the right to act together (in a concerted effort) to try to improve their wages and working conditions, as they see fit, with or without a union. With this right comes the protection of the National Labor Relations Board, which will fight for the reinstatement of employees who are fired, suspended or otherwise penalized for taking part in protected group activity.

Cooper Tire and Rubber Company and Anthony Runion

Anthony Runion was employed at Cooper Tire and Rubber Company. He was also a United Steelworkers union member. He was terminated for shouting racial slurs at nonunion replacement workers while he was on the picket line. Many of the replacement workers were black. While Runion admitted to making the chicken and watermelon comments, he denied shouting, "[g]o back to Africa, you bunch of f***ing losers."

Nonetheless, the NLRB agreed that he was most likely the person who made that comment as well. Cooper Tire & Rubber Company stated that it has a very strict anti-harassment policy, which was applied when it terminated Runion for the racist statements captured on video. An independent arbitrator agreed with the employer's decision. However, the union filed an unfair labor practice charge with the NLRB.

Understanding the NLRB's Decision to Reinstate Runion

The NLRB ordered Cooper to reinstate Runion's employment because Runion was on the picket line at the time he made the comments. Being on a picket line is considered protected concerted activity, as long as the statements are not accompanied by threats or acts of intimidation. The Administrative Law Judge explained the decision as follows:

[The] "KFC" and "fried chicken and watermelon" statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property.…The record evidence in this case does not establish that Runion's statements were coercive or intimidating to the exercise of employees' Section 7 rights, and it does not establish that the statements raised the likelihood of imminent physical confrontation.

Unfortunately, because the company's harassment policy makes no reference to conduct on the picket line, the conduct was considered protected by the Act. Despite pressure from the NLRB to reinstate Runion in spite of his use of racial slurs during a union protest, Cooper Tire decided to stand by the termination and appeal the administrative decision.


Do you feel you have been a victim of discrimination at work? If you have questions pertaining to your employer or your employment rights, please contact Wrady & Michel, LLC today. Get in touch with us online or call us at (205) 265-1880 to schedule a case review with our Birmingham employment law attorneys.

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