When Cooper Tire & Rubber Company brought in replacement workers during a lockout, picketing strikers shouted a range of obscenities. The NLRB’s tolerance of obscenities in this context is well documented. But on this occasion, the comments were both obscene and racist. Comments directed at African-Americans included things like:

  • “Hey, did you bring enough KFC for everyone?”
  • “Go back to Africa, you bunch of f_____g losers” and
  • “Hey, anybody smell that? I smell chicken and watermelon.”

The company fired an employee who admitted making the first statement and who, despite his denial, was shown on video making the third one. The union grieved the decision and an arbitrator upheld the termination.

The NLRB, however, refused to defer to the arbitrator’s award and ordered the employee who made the racist statements reinstated with back pay. Explaining that conduct on a picket line was judged by a different standard than conduct in the workplace, the Administrative Law Judge said that the employee’s statements, “while racist and offensive,” were still protected by the National Labor Relations Act.”


  • The NLRB has its own standards for what’s appropriate in the workplace and in what context. It will condone behavior that the rest of the civilized world has decided is contemptible.
  • Employers should seek legal advice before disciplining employees for for conduct that occurred during picketing, bargaining, or any type of protest regarding working conditions.

Thanks to Michael C. Wilhelm at Briggs & Morgan for posting about this case and including a copy of the Administrative Law Judge’s Decision.