St. Louis 8th U.S. Circuit Court of Appeals has ruled a union member cannot be terminated for yelling racist insults at workers crossing a picket line.  The opinion was issued on Tuesday, August 8th, and upheld the original findings of the National Labor Relations Board, which ruled that the replacement worker had been “discharged for a prohibited reason – the protected activity of engaging in picketing.”  The court cited previously issued opinions: “One of the necessary conditions of picketing is a confrontation in some form between union members and employees” and “Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers.”Cooper Tire & Rubber Co.’s manufacturing plant locked out union workers back in 2011 until it was able to settle a contract dispute at which point all of the workers returned except for Anthony Runion, who had been terminated for shouting at a van of replacement workers, mainly African Americans.  He yelled, “Hey, did you bring enough KFC for everybody?” and “Hey, anybody smell that?  I smell fried chicken and watermelon.”

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Cooper officials argued that Title VII of the 1964 Civil Rights Act requires the employer to prevent racial harassment of its employees, including replacement workers.  Therefore, they were well within their rights to when they terminated Runion.  But, the 8th Circuit Court this doesn’t apply in this case.Judge William Duane Benton specifically wrote in the appeals court opinion there was no evidence the replacement workers heard Runion – although many in the crowd said the did – and Runion’s comments were not directed at anyone in particular.  The United Steelworkers echoed that there was “zero evidence” Runion’s “unfortunate remarks” had any effect on the replacement workers and his one-time comments did not create an unlawful hostile environment under Title VII.  Finding Cooper’s Title VII obligations “do not conflict with Runion’s reinstatement,” the court allowed for this reinstatement and ordered the man receive back pay.Judge C. Arlen Beam wrote in dissent, “No employer in America “is or can be required to employ a racial bigot.” He quoted an amicus curiae brief from the National Association of Manufacturers, and stated that requiring Cooper to retain Runion “is tantamount to requiring that Cooper Tire violate federal anti-discrimination and harassment laws…as well as numerous other similar state and local laws.”Cooper Tire said, “We strongly disagree with this finding and are assessing our options moving forward as we seek to uphold our commitment to a workplace free from harassment and discrimination.”“It’s very troubling to me that the court majority didn’t even attempt in any meaningful way to reconcile the ostensible NLRA rights at issue with the employer’s compliance obligations under federal workplace discrimination law,” said attorney Rae T. Vann, adding, the ruling may force employers to choose between “either fully enforcing their anti-harassment and workplace conduct rules and risking an NLRB charge, or permitting certain employees to evade punishment for harassing behavior simply because it may have coincided with pro-union activity”.

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Company can't fire worker for making racist comments on picket line, appeals court saysThe OpinionCooper Tire Faulted for Firing Picketing Worker for Racial Slurs