In a so-called “short form adoption,” the National Labor Relations Board (NLRB) has endorsed a decision by an Administrative Law Judge (ALJ) reinstating a picketing employee who had been fired for shouting racial epithets at African-American replacement workers because his taunts could not be shown to be threatening or violent.
The Board’s decision in Cooper Tire & Rubber Co., 363 NLRB No. 194 (2016), puts this employer and others between a rock and a hard place regarding their legal obligations to prevent unlawful discrimination under Title VII of the Civil Rights Act while not interfering with protections given to employees under the National Labor Relations Act (NLRA).
Because of its implications for Title VII compliance, NT Lakis lawyers had filed a “friend-of-the-court” brief with the NLRB in this case arguing that it should not put an employer in a position of having to choose between its obligations under Title VII and the NLRA by preventing the employer from enforcing its anti-harassment policy. Nevertheless, and perhaps not at all surprisingly, the current Board — which has been aggressively extending the reach of the NLRA in a series of controversial rulings — came down on the side of the NLRA.
A copy of the NLRB’s Cooper Tire decision is available online here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.