Workers' Rights to Make Racist Comment While Picketing Affirmed

By George Khoury, Esq. on August 11, 2017 | Last updated on March 21, 2019

Civil rights can sometimes be a bit confusing. The case of Anthony Runion is definitely one of those 'I-may-not-agree-with-what-you're-saying-but-I-support-your-right-to-say-it' situations in the view of the Eighth Circuit.

Runion was picketing his employer, Cooper Tire, after striking union employees were locked out. As a group of strike-breaking employees crossed the picket line, Runion made racist comments, which were not heard by the strike-breaking employees. Nevertheless, Cooper Tire terminated Runion for making the racist comments.

Runion appealed the termination, and at arbitration it was upheld as a "for cause" termination. However, Runion appealed the arbitrator's decision to the NLRB, which reversed, and ordered Runion reinstated with back pay. The NLRB found that despite the content of the comments, precedent required ruling in Runion's favor.

Surprising Precedent

It may be hard to believe some of the cases that the Eighth Circuit Court relied upon in reaching their decision. However, it is a hallmark of U.S. civil rights employment law that an employee cannot be fired for engaging in protected activity. Picketing is one of those protected activities, and apparently, picketing can involve some rather unsightly behavior.

One such case involves a picketer being fired after charging at a strike-breaking employee with both middle fingers extended screaming an expletive and racial slur at the employee. This case, even with the charging, was found to be protected picketing activity by the NLRB. Surprisingly, there is a long line of cases protecting rather questionable activity on the part of picketing and striking employees.

Distinguishing the Line Protecting Picketing Activity

The court helped to distinguish the line in regards to when picketing activity crosses the line and is no longer protected. It explained that when there is a direct threat of harm that singles out a specific strike breaking employee, then it goes too far, as that would be intimidating. However, so long as the distasteful, offensive, and even hateful, comments are not direct at specific individuals, but rather generally, they will be protected.

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