An
Administrative Law Judge (ALJ) for the National Labor Relations Board recently
held that an employee was engaging in “protected activity” when he made racist
remarks toward African American replacement workers as they entered a plant to
work during a labor dispute. An
arbitrator had ruled in a separate proceeding that the employer was justified
in terminating this individual for racial harassment. However, the Board’s ALJ determined that
because the racially offensive comments were made during the course of union
picketing at the plant’s entrance, in opposition to workers who were replacing
the picketers, his actions were protected by federal labor law.
During
the labor dispute, as is often the case picketers regularly yelled and gestured
at the replacement workers as they entered and departed from working in the
plant. After vans carrying several African
American replacement workers passed through the picket line, the employee in
question made the following racially offensive remarks: “Hey, did you bring
enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon.” Based on these comments, the employer
determined that the employee violated its harassment policy and terminated the
employee. The union grieved the
termination, and an arbitrator sided with the employer, finding that there was
just cause to terminate the employee.
In
separate proceedings before the NLRB, however, an ALJ determined that the
employer acted unlawfully in terminating this employee for making these racial
remarks. According to the ALJ’s
decision, an employer can only deny reinstatement to a picketer if the
misconduct “may reasonably tend to coerce or intimidate employees in the rights
protected under the Act,” or if the employee’s actions raised a reasonable
likelihood of an imminent physical confrontation. The ALJ determined that, although reprehensible,
the employee’s actions did not meet either of these standards.
The
ALJ indicated, however, that this highly protective standard for behavior on a
picket line does not apply to behavior in the everyday workplace, such
as on the shop floor. Therefore, this
decision does not mean that an employer would have to put up with racist
comments in the workplace. In fact, an
employer has an obligation to appropriately respond to these sorts of comments,
which could create a racially hostile workplace. Under this ALJ decision, however, the
employer would find itself in a Catch-22: if it terminates the picketing employee,
the NLRB says it violates labor law; however, if it takes no action against the
employee, it could face a race harassment claim.
Questions?
Contact the attorneys in Wessels Sherman’s Minneapolis office at (952)
746-1700.
