Last June we reported on what seemed to be a somewhat surprising decision by the NLRB against Cooper Tire & Rubber Company when it fired an employee for making racist comments on the picket line. As readers may recall, the discharged employee, a Caucasian worker, was participating in a lawful picket outside of the employer’s facility. As a group of African American replacement workers drove by, the employee yelled derisive comments at the workers about “fried chicken and watermelon.” Cooper Tire fired the employee for engaging in discriminatory conduct. The employee and his union grieved his discharge, which was upheld by an arbitrator. The union and the employee then filed an unfair labor practice with the NLRB alleging that Cooper Tire interfered with his Section 7 rights to engage in concerted protected activity. The judge's ruling, in favor of the employee, was based on a series of NLRB decisions protecting the rights of picketing workers, including a 2006 decision in Airo Die Casting that said an employee who called a replacement worker the “N” word was wrongly fired because he did not threaten or attack anyone.
Cooper Tire has appealed the ALJ’s decision to the Board, arguing, among other things, that when employers do not take action against employees who make discriminatory remarks or take discriminatory actions against other workers, even on the picket line, that they run the risk of failing to provide a work environment free of discrimination and harassment.
As the NLRB considers this case, employers should be reminded of the balance between workers’ rights to engage in concerted protected activity and the employer’s right to maintain order and ensure a discrimination-free environment for all workers. In cases where workers do not threaten violence but use words that do or are likely to provoke violence or disturbance, or violate the rights of others, many employers err on the side of protecting the non-offending workers, taking the position that they are doing the right thing, even if an arbitrator or labor board, reverses their decision. Hopefully, the NLRB will set new precedent with the Cooper Tire case and declare that discriminatory or harassing words, even without the threat of violence, amounts to actions that do not enjoy legal protection.
As we always remind public employers, although the NLRB does not have jurisdiction over public employers, in Illinois, the public labor relations boards closely follow the decisions of the NLRB. Since the NLRB has taken a position on many more issues than the state’s public labor boards have, public employers in Illinois are always wise to use NLRB decisions as their guide.