Thursday, August 10, 2017

Apparently the labor rights of strikers trump the non-harassment rights of employees


There exists only one workplace environment in which a white employee can keep his job after yelling the following at a group of African-American employees.
  • “Hey, did you bring enough KFC for everyone?” 
  • “Go back to Africa, you bunch of f***ing losers.”
  • “Hey anybody smell that? I smell fried chicken and watermelon.”
A gold star for you if you answered a picket line, when the comments are made by striking workers and are directed at a group of replacements crossing said picket line. Or at least this is the majority finding of the 8th Circuit Court of Appeals in Cooper Tire & Rubber Co. v. NLRB [pdf].

How could a court reach this (incorrect) conclusion?
  1. Courts show deference to decisions of administrative agencies, and the NLRB found that Cooper Tire unlawfully terminated the picketer.
  2. The picketer’s comments, while racist and offensive, were not accompanied by threats or violence.
  3. The offensive words were “part of a package of verbal barbs thrown out during a picket line exchange” or were of a “message dealing with the morals and character of crossovers generally,” and did not target a specific replacement worker.
The better argument? Look no further than the dissenting opinion of Judge C. Arlen Bean:
No employer in America is or can be required to employ a racial bigot. Indeed, … the court’s requiring of the petitioner to do so here, is tantamount to requiring that Cooper Tire violate federal anti-discrimination and harassment laws ….  Engaging in union organizing or efforts to vindicate protected labor activity does not insulate the volatility and heinous nature of racist, or sexist, remarks. … Discriminatory and degrading stereotypes are not legitimate weapons in economic disputes carried out on the picket line.
Amen.

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