Yes – according to an administrative law judge for the National Labor Relations Board (NLRB), racist and profane comments made during union picketing qualify as protected concerted activity under the National Labor Relations Act (NLRA).

In Cooper Tire & Rubber Co., the employer and the union reached impasse during collective bargaining, and the employer locked out the employees and hired replacement workers. No. 08–CA–087155 (June 5, 2015). In response, the union employees picketed outside of the workplace. When vans of replacement workers arrived, the union employees made obscene gestures and shouted multiple racist and profane statements at the replacement workers. These statements included, but were not limited to, the following:

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

Consistent with the employer’s policies against racial harassment, the employer discharged the employee who made these statements. The employee then filed an unfair labor practice charge with the NLRB.

Because the comments were made during picketing related to a labor dispute, the ALJ concluded that the comments were protected concerted activity under the NLRA. The ALJ then considered whether the comments were so egregious as to lose their protection under the NLRA. The ALJ decided that because the statements did not tend to coerce or intimidate other employees in the exercise of their rights under the NLRA and did not raise a reasonable likelihood of imminent physical confrontation, the statements were not so egregious as to lose their protection.

The ALJ explained that while the comments were certainly “racist, offensive, and reprehensible, . . . they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property.” In addition, the comments were “unaccompanied by any threatening behavior or physical acts of intimidation.”

The ALJ also explained that picket-line activity is judged by a different, more lenient standard than activity in the workplace. Because the ALJ determined that the conduct was protected by the NLRA, it ordered the employer to reinstate the employee and pay him back-pay.

Takeaway: Although potentially subject to appeal, the Cooper Tire & Rubber Co. case is another in a series of cases (like this one) in which either an ALJ or the NLRB has found that reprehensible employee conduct is protected by the NLRA.