Title VII vs. NLRA on the picket line: Employers in a quandary

I don't want to be an alarmist.  But I can't help but wonder whether the result in Cooper Tire & Rubber Co., NLRB Case No. 08-CA-087155 means that certain rights provided under Title VII and other anti-discrimination statutes are to be viewed as being of lesser importance than the rights under Section 7 of the National Labor Relations Act.  The Cooper Tire decision is not one of the National Labor Relations Board itself, or of any federal court.  Rather it is the opinion of an Administrative Law Judge of the NLRB.  At the same time, because such cases are prosecuted by the NLRB's Office of General Counsel, the facts both that the decision was made to prosecute the matter and that the ALJ reached the conclusion he did are still instructive to employers.  Instructive, and to me, very bothersome.  So -- In 2011, the Cooper Tire facility in Findlay, Ohio had a 70-year collective bargaining relationship.  And negotiations were proceeding for a successor contract.  After the union membership voted in November 2011 to turn down the company's 'last, best, and final offer, 'Cooper Tire locked out the more than 1,000 bargaining unit employees.  Cooper Tire continued operations using supervisory employees, as well as employees brought in from other facilities and temporary replacement workers.  The ALJ in his decision noted that 'many' of the replacement workers 'were of African-American descent.' Picket lines were established.  Bargaining continued.  Both the company and the union appeared sincere in their efforts to assure that the picketing was peaceful.  The company brought in security guards who recorded much of the picketing activity with video cameras.  There were no reported incidents of violence; there were no court injunctions. During the evening shift change on January 7, 2012, a locked-out white employee named Anthony Runion made statements directed to the African-American replacement workers.  The NLRB ALJ labeled the statements 'racist, offensive, and reprehensible.' Cooper Tire had a written policy prohibiting 'harassment.'  The policy defined harassment as, 'unwelcome comments or conduct relating to race, color, religion, sex, age or national origin, which fails to respect the dignity and feelings of any Cooper employee.'  The policy continued, '[h]arassment will not be condoned nor tolerated under any circumstances, whether committed by Cooper employees, vendors, customers or other visitors.'  It was clearly not the policy or practice of Cooper Tire to wait until objectionable 'harassment' rose to a level severe enough to violate discrimination laws before it took action under its own policy. Although Runion denied making the racist statements, neither a grievance arbitrator nor the ALJ believed him.  The credibility determination was no doubt assisted by the fact that a security video showed Runion's 'mouth and jaw are moving [while] the following statement can be heard.' Cooper Tire fired Runion based on this picket line conduct, contending it was prohibited by the anti-harassment policy.  The union filed a grievance as well as an unfair labor practice charge ('ULP').  Under a separate Board policy, the NLRB Regional Director deferred consideration of the ULP until the grievance arbitration process was completed. It took the grievance arbitrator 22 months after the July 10, 2012 arbitration hearing to issue his decision.  The arbitrator ultimately determined (1) that Runion had made the statements, as charged; (2) that the statements violated the 'explicit terms of the [company's] harassment policy'; and (3) that the statements would constitute serious misconduct in any context, but given the nature of a picket line, where there was a genuine possibility of violence, the conduct was even more serious.  The arbitrator denied the grievance, determining that Runion's conduct was 'just cause' for the termination. My major professor in graduate school, Dr. Harold W. Davey, guided my exposure to the labor grievance arbitration process, including the notion of 'the common law of the shop.' This notion, as well as the common law of federal labor policy and arbitration, was explained by the Supreme Court in 1960 in what has come to be known as the 'Steelworkers Trilogy,' and most particularly in United Steelworkers of Am. v. Warrior & Gulf Nav. Co. Some five years prior to the Steelworkers Trilogy, the NLRB in Spielberg Manufacturing Co., 112 NLRB 1080 (1955) adopted what has come to be known as the 'Spielberg deferral doctrine.'  In a case which appears strikingly similar to Cooper Tire (the termination of individuals for picket line misconduct, with the termination sustained by a grievance arbitrator), the NLRB noted that while as a matter of law it was not bound by the arbitration award, and while it would not necessarily reach the same conclusion regarding the misconduct as did the arbitrator, as a matter of discretion under federal labor policy favoring arbitration as a matter of resolving disputes, it would defer to the arbitration award where the award was not 'clearly repugnant to the purposes and policies of the Act.' In Cooper Tire, the NLRB's Regional Director – apparently applying 'Spielberg deferral' doctrine as he had at that point in time been instructed to do – determined not to dismiss the ULP by deferring to the arbitrator's decision.  Rather in January 2015 the Regional Director issued a complaint against Cooper Tire (i.e., 'indicted' the company) for terminating Runion's employment because of Runion's 'racist, offensive, and reprehensible' conduct on a picket line.  In my view, by itself this decision to prosecute is noteworthy as it is an expression of how the prosecutorial arm of the Board views what it believes should be the law. Labor practitioners know that in December 2014, in Babcock & Wilcox Construction Co., 361 NLRB No. 132 (Dec. 15, 2014), the 'Obama Board' revisited the standards for Spielberg deferral.  It did so stating that it had concerns that the then-current deferral standard 'did not adequately balance the protection of employee rights under the Act and the national policy of encouraging arbitration of disputes.'  Following Babcock & Wilcox, the NLRB's General Counsel on February 10, 2015 issued Memorandum GC 15-02 in effect raising the bar on deferral to arbitration awards in the future.  Interesting, but apparently not applied in Cooper Tire. On June 5, 2015, the NLRB Administrative Law Judge issued a decision in which he determined – based solely on a stipulated record -- that the arbitrator's decision was ''clearly repugnant' to the [National Labor Relations] Act.'  Cooper Tire was ordered to reinstate Runion 'without prejudice to seniority' and to provide full back pay. I was, and am, stunned.  The ALJ has apparently concluded, at the urging of 'the General Counsel,' that it is 'clearly repugnant' to the policies and purposes of the National Labor Relations Act for an employer to discipline an employee who engages in 'racist, offensive, and reprehensible' conduct -- conduct with regard to which any employer has a duty under federal (and state and local) employment discrimination common law(s) to prevent and correct.  Even though this was a case involving the termination of employment, the upshot of it is likely that any disciplinary action for racist comments made on a picket line to replacement workers would have violated the NLRA, too. Really? In his March 18, 2015, Memorandum GC-15-04 'Report of the General Counsel Concerning Employer Rules,' General Counsel Richard F. Griffin, Jr. stated

. . . although employers have a legitimate and substantial interest in maintaining a harassment-free workplace, anti-harassment rules cannot be so broad that employees would reasonably read them as prohibiting vigorous debate or intemperate comments regarding Section 7-protected subjects.

At numbered pages 11-12, Griffen asserts that a rule which says, 'No ‘use of racial slurs, derogatory comments, or insults.' would be not be asserted unlawful because, 'employees would not reasonably believe that such a rule prohibits Section 7-protected' conduct.  Does the fact that Cooper Tire this case is being prosecuted instruct that the statement has changed?  Clearly the management of Cooper Tire as an organization felt – and clearly the grievance arbitrator applying 'the law of the shop' as it exists today believed – 'no' meant and means no. Again, I don't want to be an alarmist.  I trust that the ALJ's Cooper Tire decision likely will not be the final word.  But it was more than a quarter-century ago that the Sixth Circuit explained:

Title VII was not intended to eliminate immediately all private prejudice and biases. That law, however, did alter the dynamics of the workplace because it operates to prevent bigots from harassing their co-workers.  . . . 'It may not always be within an employer's power to guarantee an environment free from all bigotry.  He cannot change the personal beliefs of his employees; he can let it be known, however, that racial harassment will not be tolerated, and he can take all reasonable measures to enforce this policy.' DeGrace v. Rumsfeld, supra, 614 F.2d at 805.

Davis v. Monsanto Chem. Co., 858 F.2d 345, 350 (6th Cir. 1988) I suggest to employers that they heed the teaching in GITS Mfg. Co. v. UAW, Local 281, 261 F. Supp. 2d 1089(S.D. Iowa 2003). In GITS, a grievance arbitrator reduced the  termination of employment to a six-month unpaid disciplinary suspension for one 'f-word n-word' comment.  Federal Judge James Gritzner here in Iowa's Southern District explained:

'[W]hile Title VII does not require an employer to fire all ‘Archie Bunkers' in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their coworkers.' See Davis, 858 F.2d at 350. In this case, GITS fired Mickey, arbitrated Mickey's discharge, and has come to this Court in an effort to avoid honoring the arbitration award reinstating Mickey. GITS appears to have done all it could to aggressively respond to Mickey's conduct in the workplace.

Absent some REALLY CLEAR, binding guidance to the contrary from a binding appellate court, I believe an employer should favor the broader societal policy expressed in the general discrimination laws as amplified by the courts:  Adopt, adhere to, and enforce a 'no harassment' policy to teach bigots that 'expressing their opinions in a way that abuses or offends their co-worker will not be tolerated.' If there is going to be an imprimatur on such conduct, let it be done by some outside entity.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.