On June 5, 2015, an Administrative Law Judge for the National Labor Relations Board, a federal board that addresses cases of union and non-union employment under the National Labor Relations Act, addressed an issue of racist comments from a picketer. In the case of Cooper Tire & Rubber Company and their union, a worker was fired after he, while on their picket line, called out to African-American replacement workers yelled “Hey, did you bring enough KFC for everyone?”, and then “hey, anybody smell that? I smell fried chicken and watermelon.” That worker did so with his hands in his pocket and the Administrative Law Judge found that the employee’s conduct and statements did not tend to coerce or intimidate employees and their exercise of their rights under law nor did it raise a reasonable likelihood of imminent physical confrontation. Therefore it was illegal to fire this worker.
There is really no question that the National Labor Relations Board could not have prevented a worker from being fired making such nasty racist comments while working, but the Board has the ability to protect this worker who made the racist comments while he is on the picket line. For an employer, this decision is a good lesson that what would be a common sense firing for misconduct in the workplace may not be legitimate grounds for firing if the misconduct happened on the picket line.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].