Labor Law -- 2016

In re Cooper Tire & Rubber Company   (NLRB)

ALJ rules that racist statements are not grounds for firing

The NAM filed an amicus brief on behalf of petitioners Cooper Tire & Rubber Company in their employment termination appeal before the National Labor Relations Board. This case concerns an Administrative Law Judge (ALJ) decision finding that the company violated Sections 89(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA) for discharging an employee for racist statements made on a picket line. The ALJ found that the employee’s “statements most certainly were racist, offensive and reprehensible” but they did not forfeit the protection of the NLRA.

The NAM argued that this decision cannot stand because the NLRA cannot and should not protect racist comments, regardless of where or when the comments are made. The Board cannot force employers to violate other federal statutes through its protection of racist speech used on a picket line, and employers need to be able to rely on and apply their legitimate anti-discrimination and anti-harassment policies.

The NAM advocated that the Board recognize the important purposes underlying federal anti-discrimination and anti-harassment statutes enacted by Congress and acknowledge employers’ obligations, both legal and moral, in order to protect employees’ right to be free from discrimination and harassment in the workplace. The ALJ decision failed to consider any other federal anti-discrimination and harassment laws, including Title VII and Section 1981, as well as numerous other similar state and local laws. Under Section 1981, “[a]ll persons within the jurisdiction of the United States shall have the same right ... to the full and equal benefit of all laws.” 42 U.S.C. § 1981. Moreover, Title VII renders it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Title VII and Section 1981 embody federal policies prohibiting discrimination and harassment on many bases, including race. These laws allow for an employer to terminate an employee upon their violation for a clear non-discriminatory purpose.

The NAM asked that the court reverse the ALJ’s decision and establish that there should be no statutory protection for racist statements made on a picket line. Further, protecting such statements is contrary to the clear federal policy against discrimination and harassment. On May 17, 2016 the NRLB ruled against Cooper Tire, upholding the ALJ decision ordering reinstatement of a picketer who made racial epithets. On August 8, 2017 the Eighth Circuit Court of Appeals also ruled against Cooper Tire, holding that the company was not required by Title VII to fire the employee for racist comments on the picket line, so that law was not inconsistent with the ruling protecting the employee's picketing rights. In addition, it found that the arbitrator improperly called the racist comments more serious on the picket line. Instead, it found that established precedent allows this kind of "rough and tumble" atmosphere on picket lines.

Related Documents:
NAM brief  (August 20, 2015)


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