Shocking NLRB ruling protects racism

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An unbelievable National Labor Relations Board decision has employers questioning everything they know after a judge ruled racist comments are okay – as long as they’re made in connection with “concerted activity.”

The case
After a collective bargaining agreement between the Cooper Tire plant and its unionized employees expired, bosses at the Ohio business began using temporary replacements until a new arrangement could be reached.

The unionized workers then began picketing outside of the facility, yelling unflattering but somewhat expected things at the provisional employees – such as “scab.”

While the majority of those remarks were undeniably unpleasant, one employee was caught on camera shouting overtly racist comments at the predominantly African-American substitutes.

The employee, Anthony Runion, was recorded yelling remarks such as “Hey, did you bring enough KFC for everyone?” and “Anyone smell that? I smell fried chicken and watermelon.”

After reviewing the security tapes, Cooper concluded that Runion has violated its clear anti-harassment policy and terminated him.
The policy said; “Harassment consists of 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.”

Runion had previously signed a declaration acknowledging that he had received a copy of the policy and fully understood it. However, shortly after his termination, the union filed a grievance.

The union alleged Runion’s discharge violated the National Labor Relations Act, which protects workers’ ability to participate in “concerted activities” for the purpose of altering the terms and conditions of their work.

Shock decision
Contrary to what most HR pros would expect, the judge ruled Cooper’s harassment policy shouldn’t have taken precedence in this situation.
He argued that because the comments were made in within the context of union activities, the NLRA should have been the guiding doctrine.

The judge explained that “serious acts of misconduct” during union activities could disqualify a person from protection from the NLRB but since he did not consider Runion’s comments violent or threatening, that was not the case in this situation.
 
The company has been forced to reinstate Runion with back pay and benefits.


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