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The NLRB Convinces Its ALJ That The NLRA Protects Racist Picket Line Speech

June 11, 2015

By Michael G. McClory

The Bullard Edge is a bit fired up about an unfiring decision issued by a National Labor Relations Board administrative law judge last week. Rather than just tell the tale, though, let’s make it a quiz. You ought to find it to be the easiest quiz ever. Here are our ten assumed facts (that track the facts in the real case).
  1. TriHard Co. and Union have reached an impasse in collective bargaining. TriHard Co. made a last, best and final offer, which Union membership rejected.
  1. TriHard Co. locked out bargaining unit employees, but continued operating its facility with supervisors, managers and replacement workers.
  1. Three months later, Union membership ratified a new collective bargaining agreement.
  1. During the three-month lock out, Union membership regularly engaged in picketing. Among other things, as replacement workers crossed the line, picketers held up signs and yelled objections at the replacements; they accused replacement workers of being un-American and of stealing the locked out employees’ jobs. They also told the replacements to go home. Predictably, a significant amount of this picket line repartee was profanity-laced.
  1. Whether this kind of behavior on the picket line is rational or productive is beyond the scope of this post.
  1. Many of the replacement workers were African-American.
  1. During one picketing session, bargaining unit member Phil Thetong engaged in racially-inspired harassment of the replacement workers. Security video captured the harassment, which included Phil yelling comments about fried chicken and watermelon towards the replacement workers.
  1. After the lockout, TriHard Co. terminated Phil for violation of its policy prohibiting harassment, including harassment based on race or national origin.
  1. Union filed a grievance contesting the termination. It claimed Phil had been engaged in union and/or concerted activities and that TriHard Co.’s termination of him for that activity violated the National Labor Relations Act.
  1. The arbitrator denied the grievance and upheld the discharge.
Those are the facts. Here is the easiest quiz question ever. Was the arbitrator right?
While you think about the quiz question, The Bullard Edge notes that it has been on a brief hiatus. My father, a wonderful person who loved his family, worked hard, treated all people well, and found humor wherever he could, passed away in early May. We miss him, but continue to be inspired by him. Dad would have enjoyed this quiz.
That brings us back to the quiz. Do you know the answer? 
Here it is:  No. The arbitrator was not right, at least according to the June 5, 2015 Cooper Tire & Rubber Company decision issued by a National Labor Relations Board administrative law judge.
In Cooper Tire, the NLRB’s General Counsel argued that the arbitrator “only considered whether the discharge was justified under the harassment policy” and not whether the National Labor Relations Act protects that kind of conduct. The General Counsel even argued that “the Arbitrator’s award is repugnant to the Act.”
Cooper Tire argued that racist comments like these do not deserve protection under the NLRA when viewed in light of the four-part balancing test for protected conduct announced in Atlantic Steel (1979). Under that test four factors are balanced to determine whether conduct that otherwise would be protected by the NLRA loses that statutory protection because of the “opprobrious nature” of the conduct. The factors include: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) employer provocation of the outburst by unfair labor practices.
The ALJ distinguished Atlantic Steel because it involved conduct in the workplace, rather than on the picket line. When on the picket line, the ALJ concluded, rules that apply in every other context are suspended and this kind of abhorrent behavior is legally protected. The ALJ wrote that the employee:
“was discharged for engaging in picketing activity protected by Section 7 of the Act, and that his conduct on the picket line, while racist and offensive, was not violent in character, not accompanied by violent or threatening behavior, it did not raise a reasonable likelihood of an imminent physical confrontation, and it did not reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights.”
The Bullard Edge is appalled. While picket lines are definitely anachronistic, they undoubtedly are permitted under the NLRA. That being said, there is no reason why racially despicable conduct on the picket line should be embraced by a governmental agency as being within the boundaries of the definition of protected concerted activity under the NLRA (provided that it does not lead to collective violence). Application of the NLRA in this way unnecessarily affords protections to some (picketers) at the expense of racial protection for all. That is simply wrong. (Note, for more labor perspective I asked one of my labor law colleagues about this decision. I learned that this unsavory holding is actually consistent with past Board decisions involving picketing and replacement workers.)
If we flip the script a bit, the ALJ’s shortsightedness is easier to see. Going back to our assumed facts, consider what TriHard Co. was supposed to do if one of the replacement workers had complained about racially harassing conduct. It could have investigated the complaint and confirmed that Phil had taken action that creates a racially hostile work environment. If TriHard Co. had then taken no action, would the EEOC have accepted the “picket line tied our hands” as a defensible explanation? Doubtful.
The Bullard Edge is interested in your thoughts on this case. Is racist picket line activity worthy of legal protection? Why or why not? 
Best regards,
The Bullard Edge