Ethics Dunces: The 8th U.S. Circuit Court of Appeals

I don’t understand this ruling at all.

In 2011, Cooper Tire & Rubber Co. had locked out union workers. After the company later settled a contract dispute, they all returned to work except for Anthony Runion, who had been fired. Runion had shouted at a van carrying replacement workers onto the company’s grounds: “Hey, did you bring enough KFC for everybody?” and “Hey, anybody smell that? I smell fried chicken and watermelon,” the opinion noted, adding that most of the replacement workers were black.

In the 2-1 ruling for the fired worker, Judge William Duane Benton cited the law protecting unions, strikers and pickets, 29 U.S.C. § 157. Section 7 of the Act guarantees employees the right to “assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7
gives locked-out employees the right to picket. Section 8(a) prohibits an employer from interfering with, restraining, coercing, or discriminating against employees in the exercise of their Section 7 rights.

How would firing  a worker for uttering undeniable racially hostile verbiage in the process of striking? Benton writes, citing various cases in the line of labor decisions:

“One of the necessary conditions of picketing is a confrontation in some form between union members and employees.” Chicago Typographical Union No. 16, 151 NLRB 1666, 1668 (1965), citing NLRB v. United Furniture Workers of Am., 337 F.2d 936, 940 (2d Cir. 1964). “Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers.” Allied Indus. Workers No. 289 v. NLRB, 476 F.2d 868, 879 (D.C. Cir. 1973) (internal citation omitted). This court analyzes picket-line conduct under the Clear Pine Mouldings test: a firing for picket-line misconduct is an unfair labor practice unless the alleged misconduct “may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.” NMC Finishing v. NLRB, 101 F.3d 528, 531 (8th Cir. 1996), citing Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984), enf’d, 765 F.2d 148 (9th Cir. 1985). The test is objective.

Wait: racially prejudiced rhetoric is “impulsive behavior”? Not by non-racists, its isn’t. Non-racists don’t suddenly start talking like racists on impulse. Anthony Runion unmasked himself as a racist by his behavior on the picket line. It may not have been “picket line misconduct,” but it was certainly unacceptable workplace and employee conduct, with a strong indication of more to come. Benton wrote that there was no evidence the black “scabs” heard Runion’s racist words, though dozens of others nearby did, and that the comments were not directed at any individual. Wait again: is the judge arguing that using racial epithets in the workplace isn’t a firing offense as long as the offender can say, “I didn’t mean you” ?

The lone dissenting judge, Judge C. Arlen Beam  dissents by stating the obvious:

No employer in America is or can be required to employ a racial bigot. Indeed, as amicus curae National Association of Manufacturers aptly points out, the court’s requiring of the petitioner to do so here, “is tantamount to requiring that Cooper Tire violate federal anti-discrimination and harassment laws, including Title VII and [42 U.S.C. §] 1981, as well as numerous other similar state and local laws.” For example, the Supreme Court has stated “[t]he phrase, ‘terms, conditions or privileges of employment’ in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charge with ethnic or racial discrimination.” Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986)…

Thus, the two crucial issues at work in this presently mishandled dispute are (1) whether Anthony Runion exhibited racial bigotry directed toward African America employees of Cooper Tire and (2) whether the exercise of such bigotry is protected by the terms and conditions of the National Labor Relations Act (NLRA). The answer to question one is clearly yes and the answer to query two is undoubtedly no!

Seems clear and undoubtable to me, too. It can’t be legal or ethical to hold that a company cannot fire a worker who has publicly trumpeted racist attitudes, whether he does so on a picket line or on Twitter.


Pointer: ABA Journal

20 thoughts on “Ethics Dunces: The 8th U.S. Circuit Court of Appeals

  1. Dumb panel. Appeal it to the entire Circuit. If they don’t reverse it, I’d hope The Supremes would take the appeal, but you never know with them.

    Where are all the articles and pundits blaming this decision on Trump?

  2. Had he said it anywhere else, this would be a slam-dunk as an example of clear public misbehavior, racial overtones aside. Because he said it on the picket line, where emotions are expected to run high, and labor issues are implicated, the judges decided to err on the side of caution, lest every stupid utterance during a tense situation become a pretext for firing. I’ve seen otherwise nonviolent individuals threaten others when they get angry enough. I myself had to be talked down from physically going after someone who yelled at me and banged on my office door. I’ve heard others sling insults that they otherwise wouldn’t at those perceived to be insufficiently loyal to those on their level against leadership. The case against this jerk would be stronger if there were evidence he’d told racist jokes or said racist things on the down low prior to this. Then there would be more evidence that he was a bigot who had just successfully concealed it, but now revealed it, and was unfit to work in a place where that was going to be known.

    That said, I really don’t want to create a precedent where everyone gets one free racist insult before any consequences can attach. That’s no different than allowing one free bite by a dog before consequences attach, allowing someone to turn his eighty-seven pound Doberman loose on someone when that one free bite will do the most damage.

    • Interesting angle.

      Makes his outburst more a “moral luck” thing than uncontrollable racism (which, for all we know he’s either been perfectly capable of controlling before, meaning he’s a decent member of society, OR he doesn’t at all believe anything racist, he’s just really pissed at management and knew the most hurtful thing to say during an emotionally charged time).

      • Exactly right. That said, if you know damn well what the most hurtful thing to say is at an emotional time, you know it’s racist, and you say it anyway to do the maximum amount of hurt, then the full consequences of believing it should attach.

  3. Having been involved in a teacher strike I can understand the high level of anger and the confrontational speech. I did things that surprised me. I chased a bus full of replacement teachers down the freeway to see where they were being taken to get to their personal transportation so I could follow one of them home. Fortunately I came to and stopped myself before I escalated to completely insane, but it was close. After things calmed down a little there were some who were ashamed and self-reflecting about their own behavior and there were some who doubled down and never got over their anger. High levels of angry confrontation are life changing, or maybe life revealing is a better description. Many of the involved teachers left the profession.

  4. Complete non sequitur: members of the Awan family, previously supplying a whole lot of IT service for a significant portion of the Democratic side of the hill, has been indicted on four counts. Now… The crowd here should be familiar enough with the word to know that that doesn’t mean a whole lot in and of itself. But I wonder if it’ll silence Debbie’s assertion that the whole debacle is an Islamophobic witch hunt?

    And as an aside, I realized as I was reading the new information Legal Insurrection posted on the topic… Debbie is basically calling every Democratic legislator that fired a member of the Awan family… and I think there were something like 60 of them…. Islamophobic. I mean… I missed that point when the story first broke: “Democrat casts shade by hurling label” isn’t exactly breaking news, but “Democrat throws a quarter of her party under the bus” kind of was… And with a party already looking for a scapegoat, how smart is it to start lobbing hand grenades?

    I really want to know what Awan has on her.

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