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Unfortunately, Offensive Racial Comments Don’t Always Get You Fired (At Least Under Labor Law)

Under the National Labor Relations Act, certain union activities are considered “protected.” That is, employees engaging in union activity, or union representatives carrying out their duties in the context of grievance processing or labor negotiations, are sometimes protected from discipline even though their conduct would otherwise normally result in discipline under their employer’s policies. For example, an employee who yells profanities at a supervisor during the course of a discussion about the need for a union may be shielded from discipline by the Act even though the conduct otherwise violated the employer’s policies. As a rule of thumb, threats of physical violence are generally not protected under the Act even when they arise in the context of union activity, but disrespectful conduct often is protected when it occurs in that context.

A decision by a National Labor Relations Board Administrative Law Judge on June 5, 2015, demonstrates just how far this idea of protected union activity can sometimes be taken in picketing cases – indeed, the idea of protected activity is taken even further when it comes to picket line misconduct rather than workplace misconduct. In this case, the employer locked out the union bargaining unit employees at its facility in Findlay, Ohio, and hired temporary replacement workers. The union established picket lines. The temporary replacement workers regularly crossed the picket line to go to and from work.

Many of the replacement workers were African-American. The picketers yelled various things at the replacement workers as they crossed the line – “go home,” “get out of here,” “scabs.” But, one of the picketers went much further, yelling racially offensive taunts at the replacement workers. He yelled, “Hey, did you bring enough KFC for everyone,” and “Hey, anybody smell that? I smell fried chicken and watermelon.”

The employer fired the employee for making the racial comments on the picket line, concluding the comments constituted gross misconduct in violation of its no harassment policies. The union grieved the discharge under its labor contract. An arbitrator sided with the employer, deciding that the employee was discharged for just cause.

However, the union also filed an unfair labor practice charge with the National Labor Relations Board, alleging the employee was unlawfully terminated for engaging in protected activity under the Act. The NLRB administrative law judge determined:

  • He was not going to defer to the arbitrator’s award, which he said was repugnant to the National Labor Relations Act

  • There was no violence, and there were no threats of violence

  • The comments by the employee were racially offensive, but because they were made on a picket line, they were protected activity and did not constitute sufficient cause for discharge

  • The employee should be reinstated, with back pay

The employer has indicated it intends to appeal the administrative law judge’s decision. Pending that appeal, what are the lessons learned here for an employer? Certainly, the lesson is not to stop enforcing no-harassment policies, even when the conduct occurs during some sort of union activity. First, in this case, the outcome would likely have been different had the racially offensive conduct occurred during “regular work” as opposed to on the picket line (as noted, picket line activity generally receives even more protection than workplace activity). Second, taking no action, or limited action, in response to racial (or other kinds of) harassment just because that harassment occurred during union activity carries its own risks both in terms of workplace morale and potential liability under other laws like Title VII.

The above case does remind employers, however, that when an employee engages in misconduct during union activity (during union organizing in the workplace, in grievance meetings, in negotiations, on the picket line), the employer should carefully review and consider whether it can proceed with its normal, reasonable level of discipline, or whether, in that particular case, the fact that the conduct occurred during union activity requires the employer to either forego discipline or impose a lesser form of discipline than it otherwise might.

© 2019 Foley & Lardner LLP


About this Author

Thomas C. Pence, Foley Lardner, Labor Rights Lawyer, Employment Attorney

Thomas C. Pence is a partner and litigation attorney with Foley & Lardner LLP, where he represents employers in all aspects of labor and employment law. He represents employers in labor negotiations, labor arbitrations, and NLRB proceedings. Mr. Pence also counsels employers concerning all aspects of employment and labor law, including reductions in force, the ADA, the FMLA, and workplace harassment. He works with employers to develop problem prevention processes, training programs, and alternative dispute resolution programs. Mr. Pence is a frequent speaker on labor...