Jillian Kay Melchior, National Review, June 15, 2015

On June 5, the National Labor Relations Board ruled in favor of a racist member of the United Steelworkers Union, forcing his employer not only to hire him back but also to give him back pay.

The NLRB argues that the company did not respect the picket-line protections established in the National Labor Relations Act. Their interpretation of the law may well be correct. But a law that protects the worst of the worst workers, encroaching on private businesses’ rights to fire even workers who have behaved contemptibly, is a law in need of reform.

The controversy began in 2011, when Cooper Tire and Rubber Co.’s collective-bargaining agreement expired. With a lockout underway, the company hired temporary workers, some of whom were black.

This displeased Anthony Runion, a union member manning the picket lines outside of the company’s Findlay, Ohio, plant. “Hey, did you bring enough KFC for everyone?” he yelled at the black replacement workers, also adding, “I smell fried chicken and watermelon.” A video recording of the picketers from January 7, 2012, also records one of them, possibly Runion, saying, “Go back to Africa, you bunch of f*cking losers.”

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Cooper Tire and Rubber Co. finally reached an agreement with the union, but it fired Runion, Gilbert and Bowers. It said Runion, in particular, had violated company policy, which prohibits harassment based on race.

Instead of condemning the actions and comments of Runion, Gilbert, and Bowers, the union acted to protect them. It negotiated a settlement for Gilbert and Bowers, persuading Cooper Tire and Rubber Company to merely suspend them. And it filed a grievance claiming that by firing Runion, the company had violated its collective-bargaining agreement.

An arbitrator reviewed the case in May 2014 and said the company had every right to fire Runion, noting that his racist comments had occurred while he was “engaged in activity with a clear connection to his employment.” It “would have been serious misconduct in any case,” the arbitrator continued, “but in the context of the picket line, where there was a genuine possibility of violence, his comments were even more serious.”

Instead of accepting the arbitrator’s judgment, the union filed a complaint with the NLRB, claiming Cooper had acted unlawfully by firing Runion “for engaging in union and/or concerted activities,” the NLRB decision says.

The NLRB ruled that Runion made the comments while engaged in peaceful union activities, and that he was therefore protected under the National Labor Relations Act.

Even though Runion’s comments “certainly were racist, offensive, and reprehensible,” the NLRB ruled, they “did not tend to coerce or intimidate employees in the exercise of their rights under the Act, nor did they raise a reasonable likelihood of an imminent physical confrontation.”

The NLRB ordered Cooper Tire and Rubber Co. not only to re-hire Runion, but also to give him back pay and cover the cost of any “adverse tax consequences” he had incurred.

To be clear, the Cooper case isn’t about free speech, though it’s worth pointing out that the Constitution protects most speech from government punishment, as opposed to the private or personal consequences it engenders.

The ruling is, instead, about the rights of private-sector employers to hire and fire workers at will, especially after they behave reprehensibly. {snip}

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