Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cooper Tire & Rubber Co. v. National Labor Relations Board

United States Court of Appeals, Eighth Circuit

August 8, 2017

Cooper Tire & Rubber Company Petitioner
v.
National Labor Relations Board Respondent United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC Intervenor Chamber of Commerce of the United States; Equal Employment Advisory Council; National Association of Manufacturers; National Federation of Independent Business Small Business Legal Center Amici on Behalf of Petitioner Cooper Tire & Rubber Company Respondent
v.
National Labor Relations Board Petitioner United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC Intervenor Chamber of Commerce of the United States; Equal Employment Advisory Council; National Association of Manufacturers; National Federation of Independent Business Small Business Legal Center Amici on Behalf of Respondent National Labor Relations Board

          Submitted: March 7, 2017

          Before BENTON, BEAM, and MURPHY, Circuit Judges.

          BENTON, Circuit Judge.

         Cooper 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.

         I.

         Cooper 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.

         Anthony 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).

         In 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.

         II.

         Section 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).

         "One 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. Id.

         The 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).

         III.

         Cooper 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.

         Cooper 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.

         In 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.

         The 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 at 1046.

         In 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.

         Because 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.