Insight

Proceed with Caution!

The dangerous intersection of racial bigotry and labor law.

Racial Bigotry
Bernard J. Bobber

Bernard J. Bobber

September 21, 2017 11:38 AM

Last month we observed the ugly truth that racial bigotry persists in our country. The disturbing events in Charlottesville on August 5, 2017, compel the topic of this article.

As most Americans continue to seek an end to racial hatred and bigotry, all should understand that our National Labor Relations Board interprets and applies the federal labor law in a manner that protects these same acts of racial bigotry when they occur in certain contexts in the workplace.

As long as an employee is participating in some form of “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” 29 U.S.C §157 (Section 7), they may not be disciplined (much less fired) for spewing racially derogatory insults at others, including co-workers. The board elevates employees’ Section 7 rights over both their employers’ obligation to eliminate bigotry in their workplaces and the coworkers’ rights under Title VII of the Civil Rights Act of 1964 to work in an environment free from racial hostility. Federal appellate courts have become complicit in the board’s protection of bigotry by adhering to the Supreme Court’s ruling in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), requiring judicial deference to the board’s interpretation of the National Labor Relations Act (NLRA), including Section 7. Just three days after the sickening events in Charlottesville, an appellate court again permitted the board to tolerate racial bigotry in the interest of an expansive view of Section 7. Cooper Tire & Rubber Co. v. NLRB, No. 16-2721 (8th Cir. Aug. 8, 2017).

Cooper Tire fired Anthony Runion because he hurled racially derogatory insults at African-American replacement workers as they passed the picket line on which Runion participated. After Runion’s first racial insult, and prior to his second, another voice from the picket line yelled more racial insults at the replacement workers.

Runion’s union filed a grievance, arguing that the employer lacked sufficient cause to fire Runion. The labor arbitrator selected by the parties denied the grievance, concluding that the employer had “just cause” to terminate Runion’s employment due to the racial insults he shouted at the replacement workers. The union tried again by filing an unfair labor practice charge with the NLRB. The board concluded that Runion’s racial taunts from the picket line were protected by Section 7, and the employer therefore violated the NLRA by firing Runion. The board ordered Cooper Tire to reinstate Runion and pay him back wages. The employer appealed to the Eighth Circuit Court of Appeals.

In a 2:1 decision, the appellate court deferred to the board’s decision and affirmed it. The majority cited as support a 2006 decision in which the board reinstated, with back pay, an individual fired for racially offensive conduct on a picket line. In that case, as African-American replacement workers passed the picket line, the picketer advanced toward them with both middle fingers extended and screamed racial slurs. The board concluded that this behavior was protected by Section 7, and therefore the employer violated the NLRA by firing the vulgar bigot in Airo Die Casting, Inc., 347 NLRB 810 (2006).

The dissenting judge in Cooper Tire urges a rebalancing of workplace rights. Circuit Judge C. Arlen Beam explained that the law should not favor a bigot’s Section 7 rights over the Title VII rights of others to work in an environment free from racial hostility. In fact, Judge Beam argues that the proper interpretation of the NLRA compels the conclusion that the act does not protect behaviors that reflect racial bigotry.

Race continues to be a volatile and important issue in our country. In our workplaces, we need to consider the dissenting opinion of Judge Beam and rebalance the protectable interests in a manner that allows employers to eliminate racial bigotry, even when it is manifested as part of some “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Although the events of Charlottesville remind us we still have a ways to go, our society is much different than it was in 1935 when Section 7 was born.

Now, over 80 years later, prohibiting racially hostile behavior in the workplace is more important than Section 7.

Perhaps the newly constituted board will agree. But as we wait to find out, employers must look both ways and proceed with caution because the intersection of racial bigotry and labor law rights is still dangerous.

----------------------------

Bernard Bobber is a shareholder in the Milwaukee office of Ogletree Deakins and proud alumnus of Northwestern University School of Law. “Bud” counsels and defends employers on both traditional labor law and general employment law issues. His litigation practice focuses on restrictive covenant disputes and class action cases, often involving claims that implicate collective bargaining such as retiree medical benefits litigation and wage/hour claims asserted on behalf employees covered by a labor contract that overlaps the statutory claims.

Related Articles

Clear and Unmistakable Uncertainty


by Joseph J. Brennan and William D. Edwards

MV Transportation and the battle over the contract coverage test.

Uncertainty for Unionized Workers

A Double Dose of Power


by Constance Endelicato

Women in the Legal and Medical Professions Can Work Together to Dismantle Gender Inequality

Women Work to Dismantle Gender Inequality

Racial Discrimination Suit Against NFL May End in Arbitration


by John Ettorre

A former Miami Dolphins head coach is up against the NLF in a discrimination case that is on a path to arbitration; the NFL remains focused on equality for their diverse coaching staff.

Arbitrating Discrimination Suit Against NFL

Out of the Sky: What Construction Workers Can Do if Injured on the Job


by Justin Smulison

Construction zones with unsafe working conditions have long been the sites of injuries for workers. The Perecman Firm, P.L.L.C. fights for victims in New York City and Long Island.

Advice for Injured Construction Workers

WATCH: A Landmark Win for LGBTQ Rights


by Best Lawyers

Two top employment attorneys join the CEO of Best Lawyers to discuss the landmark Supreme Court ruling protecting gay and transgender employees.

Panel: LGBTQ SCOTUS Ruling

The Fighter From New York


by Justin Smulison

Benedict Morelli discusses recent successes and high-profile casework.

Morelli Law Firm

Jamie Gorelick Gets It Right


by Meredith Hinshaw-Chaney

Jamie Gorelick on politics, justice, and the rule of law.

Jamie Gorelick on the Rule of Law

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Announcing the 2022 Best Lawyers in Canada™


by Best Lawyers

The results include an elite field of top lawyers listed in the 16th Edition of The Best Lawyers in Canada™ and 1st Edition of Best Lawyers: Ones to Watch in Canada.

Announcing the 2022 Best Lawyers in Canada™

Caffeine Overload and DUI Tests


by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez


by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing the 2022 "Best Law Firms" Rankings


by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

All Eyes to the Ones on the Rise


by Rebecca Blackwell

Our 2023 honorees recognized in Best Lawyers: Ones to Watch™ in America tell us more about how their path to law formed, what lead them to their practice areas and how they keep steadfast in their passion to serve others.

Person walking between glass walls towards window

Announcing The Best Lawyers in Australia™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Announcing the 2022 Best Lawyers™ in Australia


by Best Lawyers

The results include an elite field of top lawyers and firms.

Announcing the 2022 Best Lawyers™ in Australi

Announcing the 2022 Best Lawyers in South Africa™


by Best Lawyers

The results include an elite field of top lawyers and firms.

Announcing 2022 Best Lawyers in South Africa