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By: Paul H. Derrick
The National Labor Relations Board is urging the full Eighth Circuit Court of Appeals not to review a 2-1 panel decision that found a union picketer’s racially derogatory comments toward black replacement workers to be protected speech that could not be used as grounds for his termination. Although admitting that the picketer’s comments to the black workers were offensive, the NLRB stated that the comments simply were not vile enough to lose the protections of the National Labor Relations Act.
The comments in question included the picketer yelling “Did you bring enough KFC for everybody?” toward a van carrying replacement workers and asking if other picketers could “smell fried chicken and watermelon.” Based on those and other comments, the employer elected not to return the picketer to work after its labor dispute with the union ended. The union filed a grievance on the picketer’s behalf, and an arbitrator ruled that the company had just cause to fire him. An NLRB administrative law judge and the NLRB itself disagreed, however, and ordered that the worker be rehired and given back pay and benefits. According to the NLRB, the racially derogatory remarks, although directed at minority workers confined in a vehicle that was crossing a hostile picket line, were non-violent and non-threatening offhand comments that would not objectively be perceived as coercive or intimidating. In other words, they merely reflected the picketer’s animal exuberance.
In its initial appeal to a three-judge panel of the Eighth Circuit, the company argued that bringing back the picketer would conflict with its obligation under Title VII of the Civil Rights Act to eradicate racial harassment in the workplace. In a split decision, two of the panel’s judges ruled that the racial taunting did not create a hostile work environment, was not violent in character, did not contain any overt threats to the replacement workers, and was not accompanied by acts of physical intimidation. The third judge ruled that the picketer’s termination should stand, reasoning that no employer in America can be required to allow racial bigotry in the workplace.
Whether the NLRB will prevail in its position that picket line racial harassment is an exception to the general rule that such workplace misconduct is absolutely prohibited remains to be seen. In the meantime, employers should be aware that the NLRB has taken this same position many times over the years, although not all courts agree with it. Until the U. S. Supreme Court gives more definitive guidance on the issue, there likely will be continued disagreement well into the future. These cases generally rise and fall on their own unique and specific facts, so there is no one-size-fits-all answer as to how a particular case will be seen by the NLRB or the courts.
If you have any questions or would like more information about this or any other labor law issue, please contact Paul H. Derrick at [email protected].