NLRB Judge Finds Employer Committed an Unfair Labor Practice When it Fired Worker for Making Racist Remarks While Picketing

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.

Union’s Tacky/Stinky Strike Tactic Survives Federal Court Challenge

A federal court in Illinois recently dismissed a Chicago hotel’s complaint against UNITE HERE, Local 1.  The Congress Plaza Hotel and Convention Center claimed in its suit that the union engaged in unlawful “secondary boycotting” as part of its strike against the hotel.  The union was accused of trying to cause business groups not to hold their conventions at the struck hotel.  In what can only be characterized as a stinker of a strike tactic, the complaint alleged that UNITE HERE, Local 1 delivered a heart-shaped package, filled with cow manure, to a group of scientists who had scheduled their convention to take place at the struck hotel. 

Section 8(b)(4)(ii)(B) of the National Labor Relations Act prohibits unions from exerting pressure on secondary businesses with the objective of causing them not to do business with a “primary” employer (one with whom the union has a labor dispute).  The allegations of this case seemed to fit the bill for such a claim. After all, if the scientists “got the drift” of the message behind the union’s lovely “gift,” it certainly appeared the union was unhappy with their choice of the location for their convention.  Unfortunately, the court never decided whether the union’s creative but raunchy “cow pie” package crossed the line because it ruled the hotel failed to bring suit within the applicable statute of limitations. 

Labor unions generally have little clout during a labor dispute.  To be sure, employees may lawfully withhold their services in an attempt to get their way at the bargaining table; i.e. go on strike.  But employers willing to withstand a strike are within their legal rights to hire replacement workers and continue operating, as was the case in this particular matter.  Faced with this kind of dilemma unions sometimes resort to “creative” measures such as the secondary pressure aimed at customers as alleged in this case.  Other cases with which our attorneys have been involved in the past include a union using giant inflatable rat; public campaigns through social and other media; and, on occasion, acts of violence.  Knowing how and, as this case demonstrates, when to react to such union tactics is part of management’s careful strike preparation plan in anticipation of any potential labor dispute.

For knowledgeable advice and assistance with advance planning for possible labor disputes or dealing with union pressure tactics, seek the advice of an experienced labor lawyer.  Contact: James B. Sherman at (952) 746-1700, or email jasherman@wesselssherman.com.