A case currently under consideration in the Eighth Circuit Court of Appeals deserves watching. The case will determine whether the National Labor Relations Act (NLRA) protects a picketing employee’s right to hurl racist insults at replacement workers, so long as no threat is involved. The case is Cooper Tire & Rubber Company v. NLRB, Case No. 16-2721. The facts show an intriguing – and some would argue sad – sacrifice by the current Labor Board of race relations at the altar of protecting striking workers’ and their “impulsive behavior.”

Cooper Tire employee Anthony Runion was picketing during a strike. He shouted admittedly offensive and racist taunts at black replacement workers, referencing fried chicken and watermelons, among other similar insults. He was fired, and an arbitrator upheld the firing. An Administrative Law Judge (ALJ) reversed, citing that there were no express threats and that the firing was “clearly repugnant” to the NLRA.

The National Labor Relations Board (NLRB) agreed with the ALJ and ordered Cooper Tire to reinstate Runion with full backpay. Cooper Tire has appealed to the Eighth Circuit.

Several business groups have filed briefs in support of Cooper Tire’s position. They argue that the NLRB’s position is inconsistent with federal discrimination laws, protects racist comments and essentially requires employers to condone racism in the workplace. The NLRB admitted that the comments were “offensive to the dignity of the African-American replacement workers.” But, explains the NLRB, picketing involves “an element of confrontation” and some “impulsive behavior is to be expected.” The NLRB further notes that no cases have found employers liable under the discrimination laws for only two racially offensive remarks.

The pendency of this case at this time is ironic as many profess to be fearful of what the election of Donald Trump signals for race relations in this country. Yet, the NLRB’s current position would allow racist taunts and insults – so long as it is in the context of picketing – which somehow explains or justifies such “impulsive” behavior.

On a personal note, I believe the NLRB’s position improperly sacrifices race relations at the altar of protecting striking union workers. While I understand the current NLRB’s propensity to lean heavily in favor of labor unions, its position here is inexcusable in my opinion.