According to the NLRB it is “OK” to be a racist on the picket line

An NLRB ruling said that racist activity on the picket line is protected activity.
An NLRB ruling said that racist activity on the picket line is protected activity.

The Charleston shootings of June 2015 have certainly raised the profile of “racist” activities. But not all racist activities are deplorable if one is to interpret a decision by an NLRB Administrative Law Judge correctly.

The Case

In a union dispute in Findlay, Ohio striking workers had formed a picket line in front of the business for which they worked. The management had made the decision to replace the striking workers during the period of the strike. As in many such situations the striking workers are not kind to the replacement workers. They verbally abused the workers calling them “scabs” and telling them to go home. Many of the replacements were also African-Americans and one picketer went beyond bounds by yelling “’Hey, did you bring enough KFC for everyone,’ and ‘Hey, anybody smell that? I smell fried chicken and watermelon’“ according to attorney Thomas Pence.

Employee terminated

Naturally, according to Pence, when the company heard of this behavior the striking employee was terminated for violating their harassment policy. The union, to its discredit in my opinion, grieved the termination and the case went to an arbitrator. The arbitrator concluded that the termination was justified. However, the union also filed an unfair labor practice and in that case the ALJ overturned the arbitrator’s decision saying that because the behavior had occurred on the picket line it was “protected activity and did not constitute sufficient cause for discharge.” The employee was reinstated with back pay.
Attorney Pence concluded:

“… that when an employee engages in misconduct during union activity (during union organizing in the workplace, in grievance meetings, in negotiations, on the picket line), the employer should carefully review and consider whether it can proceed with its normal, reasonable level of discipline, or whether, in that particular case, the fact that the conduct occurred during union activity requires the employer to either forego discipline or impose a lesser form of discipline than it otherwise might.

This case may not be over yet, as the company has indicated they are going to appeal the decision and who knows in light of recent events the next judge might have a different opinion.

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