The Eighth Circuit Court of Appeals has ordered the reinstatement of an employee who was let go for picket line behavior that included shouting racist comments toward African American replacement workers.
The employer locked out their employees after they were unable to come to successfully renegotiate a new union contract. This led them to bring in temporary replacement workers, many of whom were African American, while the regular employees remained outside in picket lines.
Ugly Isn’t Necessarily Illegal
One employee in particular, Anthony Runion, took to yelling racial epithets at the replacements as they crossed the picket lines going to and from the plant. Most of what Runion said related to stereotypical remarks about food preferences on the part of African American people. When the lockout ended and the company called back their regular workers, Runion was excluded and ultimately terminated due to his picket line behavior.
After an arbitrator found just cause for Runion’s termination, the union filed an unfair labor practice charge with the National Labor Relations Board (NLRB). They alleged that Runion’s picket line behavior was protected concerted activity under the National Labor Relations Act (NLRA) and that the employer unlawfully interfered with the exercise of his rights under the Act. The NLRB sided with the union, leading the company to seek an order from the Eighth Circuit vacating that decision.
The Eighth Circuit affirmed, noting that Runion’s remarks themselves were not violent or threatening, nor were they accompanied by threatening behavior. They comments were not directed at any particular individual – they were merely a “package of verbal barbs thrown out during a picket line exchange.” As such, Runion’s behavior was protected picket line activity and a termination stemming from it violated the NLRA.
Don’t Worry About Title VII
The Court rejected the contention that Runion’s reinstatement conflicted with the employer’s obligation under Title VII to prevent racial harassment. For one thing, Runion’s behavior was not so severe or pervasive as to rise to the level of an illegally hostile work environment so there was no actual conflict between the two federal laws. Moreover, even if the company was required to take some sort of remedial action for harassment, they could have done something other than fire him.
The Court also rejected the company’s insistence that the NLRB should have deferred to the arbitrator’s opinion, as is usually the case when the same facts give rise to both an unfair labor practice charge and a union grievance. The Court explained that deferral is not mandatory, especially in a case such as this where the arbitrator applied the wrong legal standard.
This was a split decision, with one of the judges dissenting quite vigorously in stating “no employer in America … can be required to employ a racial bigot” and that Runion’s remarks had nothing to do with the cause of the workers on the picket line. The dissenting judge concluded by lamenting how the NLRB (with the Court’s approval) continually “broadens the protections for such repulsive, volatile, incendiary and heinous activity.”
Bottom Line
We understand that the picket line is not a genteel environment and that there will be heightened tension between the demonstrators and those who are crossing the line in order to work. Still, it is difficult to accept that race, ethnicity and other legally protected traits can now be targeted during workplace disputes.
It is even more difficult to envision how different groups of people might be expected to work together in harmony after the strike or lockout is concluded but such distasteful words still ring in the air.