Submitted: March 7, 2017
BENTON, BEAM, and MURPHY, Circuit Judges.
BENTON, Circuit Judge.
Tire & Rubber Company fired Anthony Runion for his
conduct on the picket line. The union filed a grievance
alleging Cooper violated the collective bargaining agreement
by discharging Runion. The arbitrator upheld the discharge.
The Administrative Law Judge reversed, holding that the
firing violated the National Labor Relations Act, 29 U.S.C.
§ 151 et seq. The National Labor Relations Board upheld
the ALJ. Having jurisdiction under 29 U.S.C. § 160(e)
and (f), this court denies Cooper's petition for review
and enforces the Board's order.
employs about 1, 000 workers at a tire-manufacturing plant in
Findley, Ohio. Cooper locked out union employees after
negotiations failed to renew the collective bargaining
agreement. During the lockout, union workers picketed outside
Cooper's plant. Cooper continued operating with
replacement workers. These workers crossed the picket line
arriving and leaving the facility, mostly in Cooper's
vans. Many replacement workers were African-American.
Runion, a locked-out employee, participated in the picket
line. While picketing on the evening of January 7, 2012, he
yelled, "Hey, did you bring enough KFC for
everybody?" and "Hey anybody smell that? I smell
fried chicken and watermelon." The comments were
directed at a van carrying replacement workers that had just
crossed the picket line. While yelling, Runion's hands
were in his pockets; he made no overt physical movements or
gestures. There is no evidence the replacement workers heard
Runion's statements (though dozens in the crowd did).
February, Cooper began recalling locked-out employees. It did
not recall Runion. It discharged him for his statements
during the January 7 picket. The union filed a grievance
alleging Cooper violated the CBA by discharging Runion. The
arbitrator found "just cause" under the CBA to fire
Runion. The union then submitted the case to an ALJ, who
concluded that Cooper violated the Act. The Board upheld the
ALJ and ordered Runion reinstated with back pay. Cooper
petitions for review.
7 of the Act guarantees employees the right to "assist
labor organizations . . . and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection." 29 U.S.C. § 157. Section
7 gives locked-out employees the right to picket. See Am.
Ship Bldg. Co. v. NLRB, 380 U.S. 300, 310 n.10 (1965).
Section 8(a) prohibits an employer from interfering with,
restraining, coercing, or discriminating against employees in
the exercise of their Section 7 rights. § 158(a)(1)-(3).
of the necessary conditions of picketing is a confrontation
in some form between union members and employees."
Chicago Typographical Union No. 16, 151 NLRB 1666,
1668 (1965), citing NLRB v. United Furniture Workers of
Am., 337 F.2d 936, 940 (2d Cir. 1964). "Impulsive
behavior on the picket line is to be expected especially when
directed against nonstriking employees or strike
breakers." Allied Indus. Workers No. 289 v.
NLRB, 476 F.2d 868, 879 (D.C. Cir. 1973) (internal
citation omitted). This court analyzes picket-line conduct
under the Clear Pine Mouldings test: a firing for
picket-line misconduct is an unfair labor practice unless the
alleged misconduct "may reasonably tend to coerce or
intimidate employees in the exercise of rights protected
under the Act." NMC Finishing v. NLRB, 101 F.3d
528, 531 (8th Cir. 1996), citing Clear Pine Mouldings,
Inc., 268 NLRB 1044, 1046 (1984), enf'd,
765 F.2d 148 (9th Cir. 1985). The test is objective.
Board has authority to order "reinstatement of employees
with or without back pay, as will effectuate the
policies" of the Act. 29 U.S.C. §
160(c). This court will "enforce the
Board's order if it has correctly applied the law and its
factual findings are supported by substantial evidence on the
record as a whole, even if we might have reached a different
decision had the matter been before us de novo."
NLRB v. RELCO Locomotives, Inc., 734 F.3d 764,
779-80 (8th Cir. 2013) (internal citation omitted). This
court "generally defer[s] to the Board's discretion
in ordering a reinstatement." NMC Finishing,
101 F.3d at 532 (internal citation omitted). See
generally Lechmere, Inc. v. NLRB, 502 U.S. 527, 537
(1992) ("[T]he NLRB is entitled to judicial deference
when it interprets an ambiguous provision of a statute that
it administers."). This court "must deny
enforcement if the Board's determination is illogical or
arbitrary." Earle Indus., Inc. v. NLRB, 75 F.3d
400, 405 (8th Cir. 1996).
argues this court should not defer to the Board. It contends
the Board should have analyzed Runion's discharge not
under Clear Pine Mouldings, but under Wright
Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d
899 (1st Cir. 1981). Wright Line applies "when
an employer has discharged (or disciplined) an employee for a
reason assertedly unconnected to protected
activity." Shamrock Foods Co. v. NLRB, 346 F.3d
1130, 1135 (D.C. Cir. 2003) (emphasis in original). See
RELCO Locomotives, 734 F.3d at 780 ("The Wright
Line analysis is only necessary if the employer's
stated rationale for termination is not activity protected by
the NLRA."). See also Consol. Commc'ns., Inc. v.
NLRB, 837 F.3d 1, 12 n.3 (D.C. Cir. 2016) (explaining
Wright Line "has no application to striker
misconduct cases"). In Wright Line, the
employer claimed the employee was terminated for inaccurate
recordkeeping. Wright Line, 662 F.3d at 900. Here,
Cooper does not allege that Runion was fired for any reason
"unconnected" to participation in the picket line.
This court applies Clear Pine Mouldings to evaluate
a firing for alleged misconduct during picketing. See NMC
Finishing, 101 F.3d at 531.
believes that NMC Finishing and Earle
"compel a finding that Cooper did not violate the Act
when it discharged Runion." In NMC Finishing, a
picketer held up a sign for five minutes that said "Who
is RhondaF Sucking Today?" Id. at 530. The sign
was directed at a specific employee crossing the picket line.
Id. Applying Clear Pine Mouldings, this
court concluded that the singled-out woman
would-objectively-feel coerced, intimidated, or harassed.
Id. at 532. This court emphasized that an individual
was singled out:
Had the offensive words been part of a package of verbal
barbs thrown out during a picket line exchange or of a
sign-borne message dealing with the morals and character of
crossovers generally, we might have a different view. Here,
however, a specific employee was singled out and vilified by
a sign paraded in the presence of everyone near to or passing
by the exit gate.
Id. (emphasis added). Here, Runion's comments
were not directed at any one individual. Nor were they on
display for an extended period. Runion's words were a
"package of verbal barbs thrown out during a picket line
exchange." The NMC Finishing case supports the
Board, not Cooper.
Earle, the employee was fired for dishonesty and
insubordination on the plant floor. Earle, 75 F.3d
at 407. There was neither an ongoing strike nor a picket
line. Id. at 401-03. Earle distinguished
its facts from cases "in the context of strikes"
and "grievances." Id. at 406 (recognizing
that "in the context of strikes, " there exists
"the need to excuse impulsive, exuberant behavior (so
long as not flagrant or rendering the employee unfit for
employment) as an inevitable concomitant of struggle").
The Earle case does not apply here.
Board relies on Airo Die Casting, Inc., 347 NLRB
810, 811 (2006) and Consolidated Communications. In
Airo, replacement workers were transported to an
employer's plant during a strike. Airo, 347 NLRB
at 811. During a picket, one picketer advanced towards the
replacement workers with both middle fingers extended and
screamed "f*** you n*****." Id. The
employer fired the picketer for violating its harassment
policy. The Board reversed. Id. at 813. The Board
found the picketer's conduct "did not differ from
the general atmosphere on the picket line with the usual
tensions between striker and replacement workers and the use
of obscene gestures and vulgar language." Id.
at 812. It concluded that the picketer's "use of
obscene language and gestures and a racial slur, standing
alone without any threats or violence, did not rise to the
level where he forfeited the protection of the Act."
Id., citing Clear Pine Mouldings, 264 NLRB
Consolidated Communications, the D.C. Circuit held
that a picketer who grabbed his crotch, said "f*** you,
" and gave the middle finger, was protected under the
Act. Consol. Commc'ns, 837 F.3d at 6. The court
ruled that while the actions were "totally uncalled for
and very unpleasant, " they could not objectively be
perceived "as an implied threat of the kind that would
coerce or intimidate a reasonable [replacement] employee from
continuing to report for work." Id. at 12.
the picketers' statements in both Airo and
Consolidated Communications were protected, it was
not "illogical or arbitrary" for the Board to
protect Runion's statements under Clear Pine
Mouldings. See Earle, 75 F.3d at 405.
Substantial evidence supports the Board's conclusion that
Runion's statements were "not violent in character,
and they did not contain any overt or implied threats to
replacement workers or their property. The statements were
also unaccompanied by any threatening behavior or physical
acts of intimidation by Runion towards the replacement
workers in ...