Eighth Circuit rules for union worker who hurled racist comments at strike breakers

By: Rox Laird on August 14th, 2017

“No employer in America is or can be required to employ a racial bigot.”

So begins Judge C. Arlen Beam’s dissent from a ruling Tuesday by the U.S. Court of Appeals for the Eighth Circuit upholding the reinstatement of a union worker fired for hurling racist insults at strike breakers.

Beam parted company with two other judges who upheld a National Labor Relations Board decision reinstating the union worker fired for making the racist remarks on a picket line. The majority, in an opinion by Judge Duane Benton of Kansas City joined by Judge Diana Murphy of Minneapolis, held that the firing violated federal labor law that protects union workers’ right to strike.

Cooper Tire & Rubber Co. locked union members out of its Findley, Ohio, plant after it had reached an impasse over the collective bargaining agreement. Strike breakers – many of them African American – were brought in from the company’s non-union plant in Tupelo, Mississippi.

At one point, a locked-out Cooper employee – Anthony Runion – shouted racist comments as the replacement workers were escorted into the plant in company vans: “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.”

When union workers were later recalled, Runion was not among them: The company fired him for making the racist statements. The National Labor Relations Board reinstated him with back pay. The company appealed to the Eighth Circuit, which has jurisdiction in Iowa and six other Midwestern states, including and Arkansas where Cooper has a tire plant.

The NLRB ruled that Runion’s abusive language was not uncommon on picket lines where tensions between strikers and replacement workers often lead to obscene gestures and vulgar language. But it said that behavior, by itself and without threats or violence, does not mean those workers forfeit their rights under the National Labor Relations Act.

In upholding the NLRB decision, the Eighth Circuit panel followed a 1980 Ninth Circuit decision that a firing for picket-line misconduct constitutes an unfair labor practice unless the alleged misconduct “may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.”

“One of the necessary conditions of picketing is a confrontation in some form between union members and employees,” Judge Benton wrote. “Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers.”

Cooper Tire argued that the NLRB decision conflicted with federal law that protects workers from workplace harassment. But the Eighth Circuit said that, unlike cases where racial slurs and threats of violence extend over several days, “Runion’s comments — even if they had been made in the workplace instead of on the picket line—did not create a hostile work environment.”

In his dissent, Judge Beam of Lincoln said the case presents two issues: “(1) whether Anthony Runion exhibited racial bigotry directed toward African American employees of Cooper Tire and (2) whether the exercise of such bigotry is protected by the terms and conditions of the National Labor Relations Act (NLRA). The answer to question one is clearly yes and the answer to query two is undoubtedly no!”

While he agreed that federal labor law gives locked-out employees the right to picket, “perhaps, in a rough and tumble manner due to disagreeable labor circumstances,” but, the law does not permit “outright racial insult and bigotry as expressed by Runion.”

“The racial epithets expelled by Runion were not simply tolerated, impulsive behavior,” he added. “They were expressions that tended to coerce and intimidate African American employees in the exercise of rights protected under the Act. . . . Discriminatory and degrading stereotypes are not legitimate weapons in economic disputes carried out on the picket line.”

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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.
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