Cooper Tire & Rubber Company

National Labor Relations Board - Board Decisions

May 17, 2016

363 NLRB No. 194 (N.L.R.B. 2016)

363 NLRB No. 194
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Cooper Tire & Rubber Company and United Steel,
Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers
International Union, AFL–CIO/CLC. Case 08–
CA–087155
May 17, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On June 5, 2015, Administrative Law Judge Thomas
M. Randazzo issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed reply briefs. In addition,
the National Association of Manufacturers and the Equal
Employment Advisory Council filed amici curiae briefs.
The General Counsel filed a brief in response to the brief
of amicus curiae National Association of Manufacturers.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2

1 We agree with the judge that deferral is inappropriate based on his
conclusion that the arbitrator’s decision was “clearly repugnant” to the
Act, including on the ground that the arbitrator’s statement that em-
ployee Anthony Runion’s conduct was “even more serious” because it
occurred on a picket line is contrary to the Board’s standard for evaluat-
ing picket-line misconduct under Clear Pine Mouldings, 268 NLRB
1044, 1046 (1984), enfd. 765 F2d. 148 (9th Cir. 1985), cert. denied 474
U.S. 1105 (1986). However, we do not rely on the parts of the judge’s
rationale that can be read to find that the arbitrator failed to adequately
consider the unfair labor practice issue.
We further note that, contrary to the Respondent’s assertions, Spiel-
berg Mfg. Co., 112 NLRB 1080 (1955), is distinguishable from the
instant case on its facts. There, without reaching the legality of the
alleged discriminatees’ conduct, the Board deferred to the arbitral find-
ing that the employer lawfully refused to reinstate four striking em-
ployees based on allegations that they persistently shouted profane
insults, including racist slurs, at individuals over several days of picket-
ing. Id. at 1082 & fn. 6. Here, in contrast, Runion made his two racial-
ly offensive statements about replacement workers after a closed van
carrying those workers had passed.
Finally, in adopting the judge’s findings, we do not rely on his cita-
tions to the administrative law judges’ decisions in Detroit Newspapers,
342 NLRB 223, 268–269 (2004), and Wayne Stead Cadillac, 303
NLRB 432, 436 (1991), which the judge found “persuasive,” but had
not been subject to Board review.
2 In accordance with our decision in Advoserv of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall modify the judge's recommended
tax compensation and Social Security reporting remedy. We shall
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Cooper
Tire & Rubber Company, Findlay, Ohio, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Compensate Anthony Runion for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 8
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years for Anthony Runion.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. May 17, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose a representative to bargain with us on
your behalf

modify the judge's recommended Order and substitute a new notice to
reflect this remedial change.
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
positions of the parties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in union and/or protected con-
certed activities, including participation in picketing ac-
tivities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Anthony Runion full reinstatement to his former
job, or if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Anthony Runion whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL compensate Anthony Runion for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file with the Regional Director for
Region 8, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for Anthony Runion.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Anthony Runion, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that his discharge will not be used against him in any
way.
COOPER TIRE & RUBBER COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/08–CA–087155 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Kelly Freeman, Esq., for the General Counsel.
Nancy Noall, Esq., for the Respondent.
James Porcaro, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. The
complaint in this case alleges that Cooper Tire & Rubber Com-
pany (the Respondent) violated Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act) by discharging Anthony
Runion on or about March 1, 2012, because he engaged in un-
ion and/or concerted activities. The Respondent, in its answer,
denied that it violated the Act as alleged.1
A hearing on the complaint allegations was originally sched-
uled on March 17, 2015. However, on March 16, 2015, the
hearing was indefinitely postponed. On March 19, 2015, the
parties filed a joint motion requesting a decision without a hear-
ing based solely on a stipulated record. Consistent with Section
102.35(a)(9) of the Board’s Rules and Regulations (the Rules),
the motion included the parties’ stipulation of facts with at-
tached exhibits, statement of the issues, and short statements of
position from the General Counsel, the Charging Party, and the
Respondent.
By order dated March 26, 2015, I granted the joint motion
and approved the stipulation of facts. The General Counsel, the
Charging Party, and the Respondent subsequently filed briefs,
which I have considered. Based on the entire stipulated record2
and the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation, with an office and
place of business in Findlay, Ohio (the Findlay facility), as well
as additional facilities located in Texarkana, Arkansas, and
Tupelo, Mississippi, has been engaged in the business of manu-
facturing tires. Annually, the Respondent, in conducting its
business operations described above, has derived gross reve-
nues in excess of $500,000 and has purchased and received at
its Findlay, Ohio facility goods and materials valued in excess
of $50,000 directly from points located outside the State of
Ohio.
The Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that the Union has been a labor organi-
zation within the meaning of Section 2(5) of the Act.

1 The underlying charge was filed by the United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union, AFL–CIO/CLC and its Local 207L (col-
lectively referred to as the Charging Party or the Union) on August 13,
2012, and amended on January 20, 2015. The complaint and notice of
hearing issued on January 20, 2015.
2 No consideration has been given to any facts set forth in the briefs
that are not supported by the stipulated record.
COOPER TIRE & RUBBER CO. 3
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent and the Union, along with its predecessor
local unions, have had a collective-bargaining history at the
Findlay, Ohio facility for at least 70 years. At all times materi-
al, the Union and its Local 207L have been designated as the
exclusive collective-bargaining representative of the unit con-
sisting of approximately 1044 production and maintenance
employees at the Findlay facility. This recognition has been
embodied in successive collective-bargaining agreements, the
most recent of which is effective by its terms from February 27,
2012, to February 28, 2017, and which has been extended by
the parties until midnight, February 28, 2020.
The facts of the instant case, however, occurred at the time
the previous contract expired. That previous collective-
bargaining agreement was effective from 2008 to 2011 and
expired on October 31, 2011. From approximately September
7, 2011, until February 23, 2012, the parties engaged in negoti-
ations for a successor collective-bargaining agreement. On
November 22, 2011, the Respondent made its last, best, and
final offer, which the Union presented to its membership.
However, that ratification vote failed. On November 28, 2011,
the Respondent locked out the bargaining unit employees at the
Findlay facility, and it began operating that facility with super-
visors, managers, and replacement workers from its Tupelo
plant, and it contracted with Strom Engineering to supply re-
placement workers.
The parties continued to bargain during the lockout and
eventually reached a tentative agreement that was ratified by
the union membership on February 27, 2012. The lockout end-
ed on February 28, 2012, and the Respondent began recalling
the locked out employees to work on or about March 3, 2012.
On December 6, 2011, the Union filed a charge in Case 08–
CA–070209 alleging, inter alia, that the Respondent’s lockout
of the employees was unlawful. On March 30, 2012, the Re-
gional Director dismissed the charge allegation that the Re-
spondent’s lockout of the employees violated the Act. On De-
cember 14, 2012, the Office of Appeals upheld the Regional
Director’s dismissal of that allegation.
B. The Facts
1. Anthony Runion’s conduct on the picket line on
January 7, 2012
As mentioned above, during the lockout the Respondent op-
erated the Findlay plant with temporary replacement workers.
The Union set up picket lines at the commencement of the
lockout, and it manned six separate picket stations at and
around the Findlay facility. Each picket station was staffed by
various numbers of employees, both day and night. The Re-
spondent hired security guards for the lockout, and much of the
picketing activity was recorded on video by the Respondent’s
security guards.
Throughout the lockout, the Respondent and the Union
communicated with each other to address any issues regarding
conduct on the part of either the locked out workers or the re-
placement workers that might increase tensions in an effort to
keep the picket lines peaceful. At no time during the lockout
was there a court order or injunction limiting the number of
picketers at the entrances to the Respondent’s Findlay facility
or otherwise regulating the conduct of picketing at the facility.
In addition, it is undisputed that no physical violence occurred
on the picket line on January 7, 2012, or at any time during the
lockout.
During the lockout, the Respondent’s nonunion employees
and replacement workers crossed the picket lines when arriving
at and leaving the facility each workday. Many replacement
workers, both from the Respondent’s Tupelo plant and those
provided by Strom Engineering, were of African-American
descent.
Anthony Runion, who started working for the Respondent in
November 2006, was one of the bargaining unit employees
locked out by the Respondent, and he was an active participant
in the picketing throughout the lockout. On January 7, 2012,
the local union held a hog roast for the locked out employees
and their families at the union hall, which is located on Lima
Avenue, approximately 50 yards from the Findlay plant’s main
entrance. Runion attended the hog roast with his girlfriend, and
her young son, Collin. Many of the people who attended the
hog roast joined the picket line that evening just outside the
Respondent’s main gate on the corner of Lima and Western
Avenues. After the hog roast, at approximately 6 p.m., Runion
joined the picketing outside the main entrance. The picketers
stood along both sides of Western Avenue between the inter-
section and the main gate shortly before the plant’s shift change
when replacement workers began crossing the picket line. The
picketing activity outside the Respondent’s main entrance was
video recorded by one of the Respondent’s security guards, and
is part of the record in this case (Co. Exh. 6).3 The parties stip-
ulate: to the authenticity of Company’s Exhibit 6; that it con-
tains true and accurate copies of video taken of activities on the
picket line during the evening of January 7, 2012; and that it
accurately reflects the picket line events during that evening
shift change on January 7, 2012.4
The recording shows van loads of replacement workers with
their windows closed being driven intermittently toward the
main gate while groups of picketers on both sides of Western
Avenue, between the intersection and the main gate, held up
signs and yelled objections to the replacements entering the
plant, which included profanity, name-calling, accusations that
the replacement workers were un-American and were stealing
the locked out employees’ jobs, statements that the picketers
did not want them there, and demands that they “go home” and
“get out of here.” The replacement workers in the vans and
their activity cannot be seen on the video.
The video recording establishes that at the 5:10 time mark on

3 The parties stipulate that a number of exhibits from the July 10,
2012 arbitration hearing for Runion’s discharge grievance are included
in this record. For simplicity, any exhibits from the arbitration hearing
that are included in the stipulated record are identified by the exhibit
numbers used at the arbitration hearing.
4 Co. Exh. 6 is a DVD of the videos, consisting of a long version
lasting 52 minutes and 12 seconds, and a shorter version lasting 22
minutes and 3 seconds. The shorter version consists of an excerpt of
the longer video. References to time signature marks on the video
pertain to the shorter version of the video.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
the video, Runion and a young boy whom the parties stipulate
is Collin, the son of Runion’s girlfriend, walk from the east side
of Western Avenue where a majority of the picketers are locat-
ed, to the west side of Western Avenue, in front of and to the
left of the security guard who is recording the video. Runion
and Collin stand with two other locked out employees whom
the parties stipulate are David Burns and Todd Carnes. At the
6:03 time mark, two vans carrying replacement workers to the
plant’s main entrance drive past the picketers and Burns holds
up his picket sign and yells various comments, including “Go
home,” “Get out of here,” and “Go back where you came
from.” Runion and Carnes display their middle fingers as the
vans pass them. After the two vans pass by, someone yells
“scab cabs are coming.”
The next van carrying replacement workers crosses the inter-
section at Lima Avenue at approximately the 6:56 time mark.
As the van travels towards the main gate and passes the picket-
ers at the 6:58 time mark on the video, Runion and Carnes dis-
play their middle fingers. Burns holds up his sign and yells,
“Piece of shit!” at approximately the 7:02 time mark on the
video. After the van passes by, at approximately the 7:03 time
mark on the video, Carnes yells, “Hope you get your fucking
arm tore off, bitch!” At approximately the 7:04 time mark on
the video, Runion, standing with both of his hands in his coat
pockets, turns toward the main gate where the van had gone,
and yells, “Hey, did you bring enough KFC for everyone?”
After Runion makes the “KFC” statement, an unidentified indi-
vidual yells, “Go back to Africa, you bunch of fucking losers.”
At approximately the 7:25 time mark on the video, Runion,
standing with his hands still in his coat pockets, faces across the
street toward the other picketers, and as his mouth and jaw are
moving, the following statement can be heard on the video:
“Hey, anybody smell that? I smell fried chicken and watermel-
on.” Immediately after the statement is made, some of the
picketers across the street from Runion can be heard on the
video briefly chuckling and laughing.
The parties stipulate that Runion admitted he made the
“KFC” statement, but he denied that he made the “fried chicken
and watermelon” statement. Based on its review of the video,
the Respondent attributed the “fried chicken and watermelon”
statement to Runion, and it discharged him on March 1, 2012,
solely on the basis that he made the “KFC” statement and al-
legedly the “fried chicken and watermelon” statement while on
the picket line.
The record contains no stipulation as to whether Runion
made the “fried chicken and watermelon” statement. Instead,
the parties stipulate that the video footage of Runion’s conduct
and statements on the picket line “speaks for itself,” thereby
leaving the determination of whether Runion made the “fried
chicken and watermelon” statement unresolved. Since there
has been no hearing in this case with testimony from witnesses
that may conflict, this case does not require the traditional cred-
ibility resolutions based on the witnesses’ testimonial demeanor
or the content of their testimonies. However, as the finder of
fact, I must nevertheless determine whether Runion made the
“fried chicken and watermelon” statement contrary to his deni-
al, based on the videotape evidence which the parties have
agreed is an accurate representation of what transpired on the
picket line. Credibility determinations do not have to rely sole-
ly upon witness demeanor or the content of witness testimony.
Determinations regarding the facts of a case may rely on a vari-
ety of factors, including the weight of the evidence, established
or admitted facts, reasonable inferences drawn from the record
as a whole, and the inherent probabilities of the allegations.
Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Auto-
motive Dealership Group, 321 NLRB 586, 589 (1996)), enfd.
56 Fed. Appx. 516 (D.C. Cir. 2003).
Having carefully reviewed the video recording, I find that
the undisputed record establishes that Runion made the “fried
chicken and watermelon” statement, and any assertion by him
in this record to the contrary is discredited. Even though
Runion is not facing the camera when the “fried chicken and
watermelon” statement is made, his mouth and jaw are moving
in synchronization with the comment, his body tenses with the
shout of the statement, and the voice of the person making the
comment sounds like the voice of the person who made the
“KFC” statement. In addition, based on the evidence in this
stipulated record, I find it plausible that Runion made the
statement based on Collin’s reaction immediately after the
statement was made. In this regard, immediately after the
statement: “Hey, anybody smell that? I smell fried chicken and
watermelon,” Collin, who was standing directly in front of
Runion, turned around to face Runion, he looked up at Runion
and stated, “You know what I smell? You know what I smell?
I smell (inaudible) scabs.” Therefore, I find that the video
clearly establishes that Runion made both the “KFC” and the
“fried chicken and watermelon” statements.
After Runion’s statements that lead to his discharge were
made, Runion can be seen on the video at approximately the
14:45 time mark taking Collin by the hand and crossing the
street against the light, which temporarily impedes a van driv-
ing towards the gate. At approximately the 15:58 time mark, a
police officer walks across Lima Avenue and walks Runion
back across Lima Avenue to the police officer’s car, which is
not seen on the video. The parties stipulate that off camera,
Runion was given a citation for the jaywalking depicted in the
video, and the parties agree that Runion’s discharge was not
based on the jaywalking infraction. The parties further stipu-
late that shortly after receiving the citation for jaywalking,
Runion left the picket line.5
2. The Respondent’s policies prohibiting racial harassment
The Respondent has maintained a harassment policy prohib-
iting unlawful harassment based upon race, color, religion, sex,
age, or national origin. That policy dated December 1, 2002,
provides its purpose is to outline “. . . the respect to which all
Cooper employees are entitled as human beings; to work in an
environment free of all forms of harassment and to be treated
with dignity, respect and courtesy.” (Co. Exh. 1.) The Re-
spondent’s policy provides that “[h]arassment consists of un-

5 The parties also stipulated that after Runion left the picket line, at
the 16:27 and 17:29 time marks, respectively, an unidentified person
shouted, “fucking monkey scabs” and “fucking nigger scabs.” (Stip.
Facts at 74.) The parties are in agreement that the person who made
those racist statements was not Runion.
COOPER TIRE & RUBBER CO. 5
welcome comments or conduct relating to race, color, religion,
sex, age or national origin, which fails to respect the dignity
and feelings of any Cooper employee.” It further provides that
“[h]arassment will not be condoned nor tolerated under any
circumstances, whether committed by Cooper employees, ven-
dors, customers or other visitors,” and that “any Cooper em-
ployees found to be harassing others will be subject to discipli-
nary action, up to and including discharge.” The parties stipu-
lated that Runion signed his orientation check sheet acknowl-
edging that he received a copy of the harassment policy and
that he understood the policy.
3. The Respondent discharged Runion on March 1, 2012, solely
on the basis of his racially charged statements on the picket line
During the week following the incident, the Respondent
identified Runion on the recording and thereafter, Human Re-
source Manager Jodi Rosendale and Plant Manager Jack Ham-
ilton decided to terminate Runion for making those racial
comments on the picket line. On March 1, 2012, the Respond-
ent discharged Runion for “gross misconduct” for his “KFC”
and “fried chicken and watermelon” statements on the picket
line on January 7, 2012.6 The Respondent admits that it dis-
charged Runion for these statements only, and not for any other
conduct he engaged in on the picket line.
4. The Union filed a grievance alleging that Runion’s discharge
violated the collective-bargaining agreement and it processed
the grievance to arbitration
As mentioned above, the parties reached a new agreement
that was ratified by the union membership on February 27,
2012. On March 12, 2012, the Union filed grievance 2012–3
alleging that Runion’s discharge was not for just cause, and
therefore violated the terms of the collective-bargaining agree-
ment. The Respondent and the Union agreed to arbitrate any
grievances filed over the discharge of bargaining unit employ-
ees during the lockout, and they agreed that such arbitrations
would be governed by the terms of the newly negotiated collec-
tive-bargaining agreement’s contractual grievance-arbitration
procedure.
On July 10, 2012, an arbitration hearing was held on
Runion’s discharge grievance before Arbitrator Roger C. Wil-
liams, in Findlay, Ohio. At the arbitration hearing, the Union
and the Respondent stipulated that the issue before the arbitra-
tor was whether Runion’s discharge was for just cause and, if
not, what the remedy should be. The parties have stipulated in
this case that the grievance was properly before the arbitrator
both procedurally and substantively, and that the procedure was
fair and equitable.

6 The parties stipulated that Runion was one of three employees
terminated for alleged misconduct on the picket line during the lockout.
The other two employees discharged were Dave Gilbert and Carl Bow-
ers. Gilbert was discharged for standing in front of a van carrying
replacement workers on January 7, 2012, which is recorded at approx-
imately the 17.21 time mark of Co. Exh. 6. Bowers was terminated for
allegedly making threatening remarks to a truckdriver on January 17,
2012, while on the picket line. Both Gilbert and Bowers had grievanc-
es filed and they were reinstated pursuant to a settlement between the
Union and the Respondent whereby their discharges were reduced to
suspensions.
On August 13, 2012, the Union filed the charge in this matter
alleging, inter alia, that Runion was discharged in violation of
Section 8(a)(3) and (1) of the Act. The Regional Director de-
ferred consideration of the charge in this case to the grievance-
arbitration procedure pending its resolution.
C. The Arbitrator’s Award
The Arbitrator, in his Opinion and Award issued on May 14,
2014, found that Runion made the “KFC” statement, and the
“fried chicken and watermelon statement.” The Arbitrator also
determined that Runion was “engaged in activity with a clear
connection to his employment with the Respondent while he
was on the picket line,” and both statements violated the explic-
it terms of the Respondent’s harassment policy because both
statements were related to race and were disrespectful of the
dignity and feelings of African-American replacement workers.
The Arbitrator held that while the evidence proved that no vio-
lence occurred on the picket line, either on January 7, 2012, or
on any other occasion during the lockout, the use of racial slurs
on the picket line increased the possibility that the constant
verbal exchanges between the picketers and the replacement
workers would escalate into violence. The Arbitrator held that
Runion’s statements “. . . would have been serious misconduct
in any context, but in the context of the picket line, where there
was a genuine possibility of violence, his comments were even
more serious.” Despite the fact that the Union presented evi-
dence that in August 2011, Cliff Baxter, an African-American
bargaining unit employee and former union executive board
member was suspended, but not discharged, by the Respondent
for conduct that included making a racist remark, the Arbitrator
determined that there was no evidence of disparate treatment.
The Arbitrator therefore denied the grievance and upheld
Runion’s discharge as being for “just cause” under the collec-
tive-bargaining agreement.
After the Arbitrator issued his Award, the Union requested
that the Regional Director refuse to defer to the Arbitrator’s
award upholding Runion’s discharge. Thereafter, the Regional
Director refused to defer, and complaint issued alleging that the
Respondent violated Section 8(a)(3) and (1) of the Act by dis-
charging Runion for engaging in union and/or concerted activi-
ties.
D. The Issues
The parties stipulate that the issues presented in this matter
are whether the Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Runion, and whether the Board should
defer to the Arbitrator’s decision that the Respondent dis-
charged Runion for just cause.
E. The Contentions of the Parties
The General Counsel alleges that while the Respondent was
entitled to be offended by Runion’s racial comments, it was not
privileged to discharge him under the Act. The General Coun-
sel, citing, inter alia, the Board’s decisions in Airo Die Casting,
Inc., 347 NLRB 810 (2006), and Detroit Newspapers, 342
NLRB 223 (2004), contends that the racially charged state-
ments did not tend to coerce or intimidate employees in their
Section 7 rights because they were not accompanied by threats
or aggressive behavior, and the statements were not made until
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
after the vans had passed where Runion was standing. The
General Counsel argues that Runion was discharged in viola-
tion of the Act, and that the Arbitrator only considered whether
the discharge was justified under the harassment policy, not
whether Runion’s actions were protected by the Act. The Gen-
eral Counsel further argues that the Arbitrator’s award is re-
pugnant to the Act. On that basis, the General Counsel asserts
that deferral to the Arbitrator’s award is not appropriate.
The Charging Party asserts that while it does not condone
Runion’s conduct, it believes his conduct was protected and
that his statements, which were unaccompanied by threats or
intimidation, were insufficient to lose the protection of the Act.
On that basis, the Charging Party contends that Runion’s dis-
charge was unlawful. In addition, the Charging Party asserts
that even if Runion’s conduct was not protected by the Act, his
discharge was nevertheless unlawful because the evidence
shows that other employees violated the Respondent’s harass-
ment policy and were suspended, not discharged, including
Baxter, an African-American employee who called his white
supervisor a “dumb white hillbilly asshole.” (CP Br. at p. 8.)7
Finally, the Charging Party argues that since the Arbitrator only
considered the just cause issue, and did not consider (and did
not have the authorization of the parties to consider) the statuto-
ry issue, and because the Arbitrator’s award is repugnant to the
Act, the Board should not defer to the award.
To the contrary, the Respondent argues that Runion’s com-
ments specifically violated its harassment policy and therefore
he was discharged for just cause. The Respondent contends
that “while a certain amount of profanity or racial invective
may be tolerated by the Act, it is not protected by the Act,” and
therefore, Runion’s racist statements should not be considered
“protected activity.” (R. Statement of Position, p. 2.) In support
of this argument, the Respondent contends that the award is
susceptible to interpretation consistent with the Board’s deci-
sion in Atlantic Steel Co., 245 NLRB 814, 816 (1979), and its
progeny, which hold that even if an employee is engaging in
protected activity, the employee can lose the protection of the
Act if he also engages in unprotected offensive, vulgar, and/or
racist statements during the course of his protected activity. (R.
Br. at p. 29.)
The Respondent argues that deferral is appropriate because,
contrary to the contentions of the General Counsel and the
Charging Party, the Arbitrator adequately considered the statu-
tory rights at issue as the “just cause” inquiry in the arbitration
was “factually parallel” to the statutory issue in this case, and
the Arbitrator was presented with those facts. Furthermore, the
Respondent argues that the Arbitrator’s award is not “clearly
repugnant” to the Act because it is susceptible to an interpreta-
tion that is consistent with Clear Pine Mouldings, 268 NLRB
1044 (1984). The Respondent specifically contends that since
the Arbitrator stated that the comments were “disrespectful of

7 The record reveals that while it is not entirely clear to whom this
remark was addressed, it appears that Baxter directed it to his white
manager, as well as members of the local union’s executive board who
were trying to calm him down. In this connection, the record establish-
es that Baxter yelled to the group, “You are all a bunch of white hillbil-
ly assholes.” (Arbitration Exh. S, at p. 2.)
the dignity and feelings of African-American replacement
workers,” the statements coerced or intimidated employees in
the exercise of their rights protected under the Act. In addition,
the Respondent argues that the Arbitrator addressed the “coer-
cive impact” of Runion’s statements when he found that the
comments “inspired more hate-filled racist speech,” and it “in-
creased the potential for violence.” (R. Statement of Position,
pp. 2–3.) Finally, the Respondent argues that the Arbitrator’s
conclusion that Runion was discharged for cause warrants de-
ferral, not only under the applicable standard for deferral, but
under Section 10(c) of the Act,8 and that failure to defer should
be contrary to public policy.
F. Analysis
It is well established that the Board has considerable discre-
tion in determining whether to defer to the arbitration process
when doing so will serve the fundamental aims of the Act.
Wonder Bread, 343 NLRB 55 (2004), see Dubo Mfg. Corp.,
142 NLRB 431 (1963); Collyer Insulated Wire, 192 NLRB 837
(1971); and United Technologies Corp., 268 NLRB 557 (1984).
The Board’s standard for deferring to arbitral awards is also
solely a matter for its discretion, as Section 10(a) of the Act
expressly provides that the Board is not precluded from adjudi-
cating unfair labor practice charges even though they might
have been the subject of an arbitration proceeding and award.
In Spielberg Mfg. Co., 112 NLRB 1080 (1955), the Board
held that it would defer to arbitral decisions in cases in which
the proceedings appear to have been fair and regular, all parties
agreed to be bound, and the decision of the arbitrator is not
clearly repugnant to the purposes and policies of the Act. Id. at
1082. In Olin Corp., 268 NLRB 573 (1984), the Board held
that it will condition deferral on the arbitrator having adequate-
ly considered the unfair labor practice issue, which is satisfied
if: (1) the contractual issue is factually parallel to the unfair
labor practice issue, and (2) the arbitrator was presented gener-
ally with the facts relevant to resolving the unfair labor prac-
tice. Id. at 574. The Board stated that it will not require an
arbitrator’s award to be totally consistent with Board precedent,
however, deferral will not be found appropriate under the clear-
ly repugnant standard where the arbitration award is “palpably
wrong” or “not susceptible to an interpretation consistent with
the Act.” Id.9 Under Spielberg, supra, and Olin Corp., supra,
the burden of proof is on the party—here, the General Coun-
sel—who opposes deferral to the arbitration award. Airborne
Freight Corp., 343 NLRB 580, 581 (2004).
In the instant case, the parties have stipulated that the arbitra-

8 See R. Statement of Position, pp. 2–3, and R. Br. at pp. 18–23.
9 It is important to note that in Babcock & Wilcox Construction Co.,
361 NLRB No. 132 (2014), the Board recently modified its longstand-
ing postarbitral deferral standards in Sec. 8(a)(3) and (1) cases. The
Board specifically held, however, that it would apply this modified
standard only “prospectively (in future cases),” and not “retroactively
(i.e., in all pending cases).” Since the arbitration hearing in the instant
case occurred on July 10, 2012, approximately 2-1/2 years before the
Babcock & Wilcox Construction Co. decision issued, the Board’s newly
modified standard is not applicable to this case. Accordingly, the issue
of deferral in this case is to be decided under the standard adopted in
Olin Corp., supra. See Verizon New England, Inc., 362 NLRB No. 24,
slip op. 1 at fn. 2 (2015).
COOPER TIRE & RUBBER CO. 7
tion proceeding has been fair and regular and that all the parties
have agreed to be bound by the arbitration award. Thus, the
only deferral factor in dispute is whether the arbitration award
is “clearly repugnant” to the Act.
1. Whether Anthony Runion’s discharge for his conduct during
protected picketing activity constituted a violation of Section
8(a)(3) and (1) of the Act
Section 7 of the Act gives employees the right to peacefully
strike, picket, and engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion. In the instant case, it is undisputed that Runion was en-
gaged in picketing activity, which was protected by the Act,
and that he was discharged because of his conduct during that
picketing activity. The Board has long held that an important
feature of picketing is the posting by a labor organization of
individuals at the approach to a place of business to accomplish
a purpose which advances the cause of the union. . . .” Verizon
New England, 362 NLRB No. 24, slip op. 4; quoting Lumber &
Sawmill Workers Local 2797 (Stoltze Land)), 156 NLRB 388,
394 (1965). In other words, personal confrontation is a neces-
sary element of picketing. Verizon New England, supra at slip
op. 4; citing Carpenters Local 1506 (Eliason & Knuth), 355
NLRB 797, 802 (2010). However, even though the Act pro-
tects the right to picket during a strike, or in this case an em-
ployer’s lockout, and a certain degree of confrontation is ex-
pected during those activities, it is clear that Congress never
intended to afford special protection to all picket line conduct.
The question is thus whether Runion’s conduct while engaging
in picketing was sufficient to warrant removal of the Act’s
protection.
The Board has long recognized a distinction between em-
ployee conduct in the workplace and employee conduct on the
picket line. Unlike situations involving employee conduct in
the working environment, picket line misconduct is governed
by the Board’s standards established in Clear Pine Mouldings,
268 NLRB 1044 (1984), enfd. 765 F.2d 148 (9th Cir. 1985),
cert. denied 474 U.S. 1105 (1986). In that case, the threatening
statements unaccompanied by acts of violence from striker
Rodney Sittser who was denied reinstatement were: (1) that a
nonstriking employee was taking her life in her hands by cross-
ing a picket line and would live to regret it; (2) that a
nonstriking employee’s house or garage might be burned; (3)
that the hands of certain employees should be broken; and (4)
that an employee should be “straighten[ed] out.” In Clear Pine
Mouldings, the Board noted that “serious acts of misconduct
which occur in the course of a strike may disqualify a striker
from the protection of the Act.” Id. The Board specifically
addressed the issue of whether striker misconduct in the form
of verbal threats, unaccompanied by physical acts, would be
sufficient to remove the protection of the Act. In that case, the
Board specifically rejected the proposition that words alone can
never, without more, warrant a denial of reinstatement. Id. at
1045–1046. Instead, the Board adopted an objective test for-
mulated by the United States Court of Appeals for the Third
Circuit in NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 527
(3d Cir. 1977), denying enf. in part to 220 NLRB 593 (1975),
for determining whether verbal threats by strikers directed at
fellow employees justify an employer’s refusal to reinstate.
According to that test, an employer can lawfully deny rein-
statement to a striker if his misconduct is such that under the
circumstances, it may reasonably tend to coerce or intimidate
employees in the rights protected under the Act. Id. at 1046. In
that case, the Board determined that the threatening statements
were sufficient to remove the protection of the Act and war-
ranted a denial of reinstatement. Id. at 1048.
Since the Clear Pine Mouldings standard is an objective one,
it does not involve an inquiry into whether any particular em-
ployee was coerced or intimidated. Mohawk Liqueur Co., 300
NLRB 1075 (1990); Detroit Newspapers, 342 NLRB 223, 229
(2004). This standard also is applicable to misconduct directed
at nonemployees such as supervisors, security guards, and in-
dependent contractors. General Chemical Corp., 290 NLRB 76,
82 (1988); Detroit Newspapers, supra at 229.
While the remarks attributed to the striking employees in
Clear Pine Mouldings were directly or indirectly threatening in
character, the Board has also addressed whether profane epi-
thets unaccompanied by an overt or indirect threat might also
be coercive or intimidating. In Catalytic, Inc., 275 NLRB 97
(1985), after the commencement of a strike, a striking employ-
ee called the home of a nonstriking employee and when his
wife answered the phone, he stated, “[Y]ou God damned
bitch,” and immediately hung up the phone. Id. In determining
whether that conduct reasonably tended to coerce or intimidate
under the standard set forth in Clear Pine Mouldings, the Board
noted that the profane epithet did not threaten her person or
property, and it was not violent in character. Id. at 98. The
Board determined that where a profane epithet was unaccom-
panied by an overt or indirect threat and there was no reasona-
ble likelihood raised of an imminent physical confrontation,
there was no tendency to coerce or intimidate within the mean-
ing of Clear Pine Mouldings. Id. On that basis, the Board
found in that case that the employer violated Section 8(a)(3)
and (1) of the Act by discharging the striking employee.
Even though the Clear Pine Mouldings standard arose in the
context of striker misconduct, those same principles apply to
employees discharged when engaging in picketing activities
following an employer’s lockout of its bargaining unit employ-
ees. Thus, the standard articulated by the Board in Clear Pine
Mouldings is applicable to the instant case where it is undisput-
ed that Runion was discharged for his picket line statements,
unaccompanied by threats or acts of violence, to presumably
African-American replacement workers. As mentioned above,
approximately 8 seconds after the replacement workers in the
vans passed by Runion, he yelled: “Did you bring enough KFC
for everybody?” Also, approximately 27 seconds after the
replacement workers passed him, Runion, directing his com-
ments to the picketers across the street, stated: “Hey, anybody
smell that? I smell fried chicken and watermelon.” The ques-
tion before me is thus whether Runion’s statements may rea-
sonably tend to coerce or intimidate employees in their rights
protected under the Act or whether those statements raised a
reasonable likelihood of an imminent physical confrontation.
Based on the record evidence, I find that under the Board’s
Clear Pine Mouldings standard, Runion’s conduct and state-
ments did not tend to coerce or intimidate employees in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
exercise of their rights under the Act, nor did they raise a rea-
sonable likelihood of an imminent physical confrontation.
Runion’s “KFC” and “fried chicken and watermelon” state-
ments most certainly were racist, offensive, and reprehensible,
but they 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 the vans. In fact, while
making both statements, Runion stood with his hands in his
coat pockets and he was not making any threatening gestures or
movements when he made the statements. In addition, the
statements were made after the replacement workers had passed
by Runion. In this regard, the “KFC” statement was made 6
seconds after the van passed, and the “fried chicken and water-
melon” statement was made 27 seconds after the replacement
workers had passed, and it was directed not at the replacement
workers, but the picketers across the street. The record evi-
dence in this case does not establish that Runion’s statements
were coercive or intimidating to the exercise of employees’
Section 7 rights, and it does not establish that the statements
raised the likelihood of imminent physical confrontation.
While the Respondent has specifically alleged that Runion’s
statements had a “coercive impact” because they allegedly
inspired more “hate-filled racist speech” and increased the po-
tential for violence, such assertions are unsupported by the
record. Although the record reveals that there were several
racist statements made on the picket line by unidentified indi-
viduals after Runion made his “KFC” and “fried chicken and
watermelon” statements, and after he left the picket line,10 the
record does not establish that those individuals were provoked
or inspired to make those statements by anyone. In addition,
there is certainly no evidence to establish that Runion in any
way inspired or caused those persons to make those racist
statements. There is likewise no evidence to establish that
Runion’s statements “Did you bring enough KFC for every-
body?” and “Hey, anybody smell that? I smell fried chicken
and watermelon,” increased the potential for violence on a
picket line where there was undisputedly no evidence of any
picket line violence on that day, nor on any other day during the
lockout. I find that even though Runion’s statements were
offensive and racist, and certainly may have been disrespectful
to the dignity and feelings of African-American replacement
workers, there is no evidence to establish that the statements
contained overt or implied threats, that they coerced or intimi-
dated employees in the exercise of their rights protected under
the Act, or that they raised a reasonable likelihood of an immi-
nent physical confrontation.
I note that my findings in this matter are consistent with
well-established Board precedent. The Board has held that a
striker’s or picketer’s use of even the most vile language and/or
gestures, standing alone, does not forfeit the protection of the
Act, so long as those actions do not constitute a threat. Airo Die

10 As mentioned above, the parties stipulated that after Runion left
the picket line (at the 16:27 and 17:29 time marks, respectively), an
unidentified person whom the parties agree was not Runion, shouted
“fucking monkey scabs” and “fucking nigger scabs.” (Stip. Facts at 74.)
Casting, Inc., 347 NLRB 810 (2006); Nickell Moulding, 317
NLRB 826, 827–828 (1995); Calliope Designs, Inc., 297
NLRB 510, 521 (1989). In Nickell Moulding, striking employ-
ee Cleata Draper carried a homemade sign on the picket line
that read “Who is Rhonda F [with an X through the F] Sucking
Today?” The sign made reference to Rhonda Yarborough, an
employee who chose to work during the course of the strike.
The employer discharged Draper based solely on the picket
sign in question. The administrative law judge found that
Draper’s sign did not directly or indirectly threaten either Yar-
borough’s person or property, it was not violent in character,
and there was no showing of the likelihood of an imminent
physical confrontation as a result of the sign. Id. at 828. In that
case, the Board affirmed the administrative law judge’s finding
that although the sign in question was offensive, under the ap-
plication of Clear Pine Mouldings, supra, it did not rise to the
level that would justify the employer’s denial of reinstatement
to Draper. Id. at 828–829.
In Calliope Designs, Inc., supra at 521, a striking employee
called a nonstriker a “whore” and a “prostitute” and stated to
her that she was having sex with the employer’s president. He
also called another nonstriker a “whore” and told her she could
earn more money by selling her daughter, another nonstriker, at
the flea market. The Board affirmed the administrative law
judge’s finding that the statements were “obscene, insulting and
indecent,” but not sufficient under the Clear Pine Mouldings
standard to remove the striking employee from the protection of
the Act. Id.
In Airo Die Casting, supra, a case that I find is directly on
point with the instant case, the Board found in particular that
racially charged comments of a similar nature to those of this
case have been insufficient to remove the protection of the Act.
In that case, the Board examined a picketer’s racial slurs di-
rected at African-American nonstriking employees. Shortly
after a strike began, the employer hired replacement workers
who were transported into the facility in vehicles past the picket
lines at the main gate. The pickets frequently shouted obsceni-
ties and made obscene gestures at the replacements. The re-
placements responded with obscene gestures and calling the
pickets names, often behind closed car windows. Id. at 811.
Ronald Lawson, one of the picketing employees, came towards
one of the cars carrying replacement workers and an African-
American security guard. With both hands raised and extending
his middle fingers, Lawson yelled, “[F]uck you nigger” at the
security guard. Id. In that case, the Board found that Lawson’s
use of obscene language, gestures, and a racial slur, standing
alone without any threats or violence, did not rise to the level
where he forfeited the protection provided by the Act. Id. at
812.
In addition, in Detroit Newpapers, 342 NLRB 223, 268–269
(2004), the administrative law judge found that striker James
Ritchie’s use of vile and vulgar language on the picket line,
including racial epithets such as “you fuckin’ bitch, nigger
lovin’ whore,” did not deprive him of the protection of the Act
under Clear Pine Mouldings, so long as those actions did not
constitute a threat. In that decision, the Board did not rule on
that determination because Ritchie settled his charge allegation
COOPER TIRE & RUBBER CO. 9
before the Board issued its decision. Id. at 223–224.11 Since
the Board did not rule on that determination, I do not rely on it
in support of my findings. I do, however, find it persuasive on
the treatment of alleged misconduct in the form of racial slurs
used on the picket line under the Clear Pine Mouldings stand-
ard.12
The Respondent argues in its Statement of Position that
Runion’s racist comments do not deserve the protection of the
Act. The Respondent specifically asserts that it’s “position on
the 8(a)(1) and 8(a)(3) aspect of the complaint is very simple—
making racist comments is not protected activity” and
“[a]ccordingly, firing an employee because he makes racist
comments cannot violate the Act.”13 In this connection, the
Respondent asserts that the racist statements should not be pro-
tected and that Runion violated its harassment policy by mak-
ing the racist statements, thereby requiring his discharge. I find
this argument lacks merit as it infers that Runion’s statements
should be evaluated in isolation, as separate and distinct from
his picketing activity, or that the statements should be evaluated
in the context of the normal workplace environment. The Re-
spondent correctly asserts that pursuant to its harassment poli-
cy, employees who violate it may be disciplined or discharged.
Clearly, the Respondent has the authority to enforce company
policy in the workplace. Contrary to Respondent’s assertions,
however, Runion’s racist comments cannot be analyzed in a
vacuum, separate from the fact that those statements were made
during, and in the context of engaging in picketing activity
protected by the Act. In this regard, the harassment policy
makes no reference to conduct on the picket line in situations in
which such policy violations occurred in the context of conduct
protected by the Act. In addition, as mentioned above, the
Board distinguishes between conduct occurring in the work-
place and conduct occurring on the picket line. In Airo Die
Casting, supra, the Board affirmed the administrative law
judge’s finding that the picket line comments in that case were
repulsive and offensive, but they did not occur during his work-

11 In the Detroit Newspapers decision, the Board granted the Gen-
eral Counsel’s motion to sever the cases of all but 10 strikers from
those proceedings, it approved the charging parties’ request to with-
draw the relevant charges, and dismissed the corresponding complaint
allegations (Id. at fn. 4). The Board affirmed the judge’s findings re-
garding the allegations pertaining specifically to those 10 remaining
strikers, for the reasons stated in the judge’s decision. Ritchie’s name
was not listed in that decision as being one of those 10 strikers whose
allegations were addressed by the Board. Id. at 223–224.
12 In addition, in Wayne Stead Cadillac, 303 NLRB 432, 436
(1991), a striking employee on the picket line grabbed his testicles and
gyrated his hips back and forth while mouthing the words “fuck you”
towards a nonemployee and his 8-year-old daughter who were in their
car attempting to leave the employer’s premises. In that case, the ad-
ministrative law judge determined that the striker’s conduct did not
threaten the individuals and the employer’s failure to reinstate him
violated Sec. 8(a)(3) and (1) of the Act. The Board did not rule on that
determination as the Respondent did not file exceptions to any of the
8(a)(3) and (1) violations found by the judge. Id. at 432, fn. 2. This
case therefore has no precedential value on this issue, and I do not rely
on it in support of my findings. I do, however, find it persuasive on this
issue.
13 R. Statement of Position at p. 1.
ing time or in his workplace. The administrative law judge,
with Board approval, stated that “Picket-line misconduct is
accordingly evaluated by a different standard than similar con-
duct in a working environment.” Airo Die Casting, supra at
812.
In its brief, the Respondent also argues that even if Runion
was privileged to exercise his Section 7 rights by picketing, his
racial invective took him out of the protection of the Act.14 In
support of this argument, the Respondent argues that Runion’s
conduct should be analyzed under the Board’s decision in At-
lantic Steel, 245 NLRB 814 (1979), and its progeny, in which
the Board set forth a four-part test for determining whether an
employee’s outburst while engaging in protected concerted
activity removes the employee from the protection of the Act
and thereby justifies the discipline imposed. (R. Br. at p. 29.)15
I find, however, that the Respondent’s reliance on Atlantic Steel
and it progeny is misplaced.
Atlantic Steel and the related cases cited by the Respondent
are factually distinguishable from the instant case, as they all
involved protected activity that occurred in the workplace, and
not on the picket line. In Atlantic Steel, supra, an employee
called his foreman a “lying son of a bitch” while engaging in
protected activity on the shop floor. Id. Those facts are sub-
stantially different from the facts of the instant case, where
Runion’s statements occurred while engaged in protected activ-
ities on the picket line.16 As mentioned above, the Board has
recognized a distinction between protected conduct in the
workplace, and protected conduct on the picket line, and it has
evaluated picket line misconduct by a different standard than
similar conduct in the work environment. See Airo Die Casting,
supra at 812. In addition, the Board has specifically held in
Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), that
the Atlantic Steel analytical framework “is tailored to work-
place confrontations with the employer.” In that case, the
Board held that it would not apply the Atlantic Steel test to
analyze the issue of whether employees’ Facebook comments
lost the protection of the Act, noting in particular that the
framework of Atlantic Steel was utilized for balancing “em-
ployee rights with the employer’s interest in maintaining order

14 R. Br. at pp. 28–35.
15 In Atlantic Steel, supra, the Board found that even an employee
who is engaged in protected concerted activity can, by opprobrious
conduct, lose the protection of the Act. Id. at 816. Under that test, the
Board examines four factors: “the place of the discussion; the subject
matter of the discussion; the nature of the employees’ outburst; and
whether the outburst was, in any way, provoked by the employer’s
unfair labor practices.” Id. at 816.
16 I find that the other cases relied on by the Respondent similarly
involve protected activity that occurred in the workplace, and are like-
wise distinguishable from the instant case. See Foodtown Supermar-
kets, 268 NLRB 630 (1984) (employee called employer’s president “a
son of a bitch” during the course of a discussion at work regarding the
employee’s grievance); North American Refractories Co., 331 NLRB
1640, 1642–1643 (2000) (employee lost the Act’s protection by calling
his supervisor a “stupid mother fucker” during a meeting that otherwise
constituted protected concerted activity); Verizon Wireless, 349 NLRB
640, 641–642 (2007) (employee otherwise engaged in protected activi-
ty lost the Act’s protection by referring to a supervisor as “that bitch”
and to other supervisors as “fucking supervisors”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
in the workplace,” and was “typically” applied “to analyze
whether direct communications, face-to-face in the workplace,
between an employee and a manager or supervisor constituted
conduct so opprobrious that the employee lost the protection of
the Act.” Id. slip op. at 4.
Consistent with the Board’s determination that picketing ac-
tivity is evaluated by a different standard than workplace activi-
ty, the Board held in Siemens Energy & Automation, Inc., 328
NLRB 1175 (1999), that alleged discharges for strike or picket
line misconduct are not analyzed by the framework for alleged
workplace discrimination under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). In that case, the administrative law judge
recommended dismissal of the complaint alleging a striker was
unlawfully suspended and subsequently discharged for engag-
ing in serious strike misconduct (i.e., throwing roofing nails on
the roadway at a vehicular entrance to the plant during the
strike, and kicking a car as it passed through the picket line). Id.
The Board, in adopting the judge’s recommended dismissal of
the complaint, found he inappropriately applied the analysis of
Wright Line, and that in cases where the issue is whether an
employer may lawfully refuse to reinstate (and thus discharge)
an employee on the basis of alleged strike misconduct, the
standard of Clear Pine Mouldings is applied as the first part of
a two-part analysis. Id.17
Based on the standards of Clear Pine Mouldings and the
well-established Board precedent discussed above, I find that
Runion was discharged for engaging in picketing activity pro-

17 In Siemens, the Board set forth the two-part analysis as follows:
First, under the standard in Clear Pine Mouldings [citations omitted]
an employer may lawfully deny reinstatement to a striker whose strike
misconduct under the circumstances may reasonably tend to coerce or
intimidate employees in the exercise of rights protected under the Act.
Second, under the framework for analysis in Rubin Bros., 99 NLRB
610 (1952), General Telephone Co., 251 NLRB 737 (1984), and
Axelson, Inc., 285 NLRB 862 (1987), once the General Counsel has
initially established that a striker was denied reinstatement for conduct
related to the strike, the burden of going forward with the evidence
shifts to the employer to establish that it had an honest belief that the
striker in question engaged in the strike misconduct. If the employer
establishes that, then the burden of going forward shifts back to the
General Counsel to establish that the striker in question did not in fact
engage in the alleged misconduct. [Id.]
As mentioned above, I find that under the Board’s Clear Pine
Mouldings standard, Runion’s conduct and statements did not tend to
coerce or intimidate employees in the exercise of their rights under the
Act, and therefore the first part of the analysis has not been met.
The second part of the two-part test involves shifting burdens which
attempt to determine if the striker in question did in fact engage in the
picket line misconduct that was alleged. In the instant case, it is undis-
puted that Runion uttered the racist “KFC” statement, and the parties
have stipulated that, with regard to the “fried chicken and watermelon”
statement, the video recording was an accurate representation of that
statement, and the recording speaks for itself. As mentioned above, I
find based on the undisputed record evidence, that Runion had in fact
made the “fried chicken and watermelon” statement. Since I have
determined that Runion made both statements, there is no question as to
whether he in fact engaged in the alleged misconduct. Therefore, I find
it unnecessary to evaluate this case under the shifting burdens of the
second part of the test.
tected by Section 7 of the Act, and that his conduct on the pick-
et line, while racist and offensive, was not violent in character,
not accompanied by violent or threatening behavior, it did not
raise a reasonable likelihood of an imminent physical confron-
tation, and it did not reasonably tend to coerce or intimidate
employees in the exercise of their Section 7 rights. On that
basis, I find that Runion’s picket line statements were not suffi-
cient under the standards of Clear Pine Mouldings to remove
the protection of the Act. Therefore, I find that the Respondent
discharged Runion on March 1, 2012, in violation of Section
8(a)(3) and (1) of the Act.
2. Whether deferral to the Arbitrator’s award is appropriate
Having found that the Respondent violated the Act by dis-
charging Runion, I must now determine whether it is appropri-
ate to defer to the Arbitrator’s award holding that Runion was
discharged for just cause. For the reasons stated below, I find
that deferral to the Arbitrator’s award is not appropriate.
On the issue of deferral to an arbitrator’s award, the Board
noted in Babcock & Wilcox Construction, supra, that:
An arbitrator applying the ‘just cause’ provision in the con-
tract—and sustaining the discharge—may well depart from
the standards that the NLRB would apply because they are is-
sues of legal characterization, in light of the policies of the
NLRA, and are therefore not likely to have been precisely ad-
dressed by the arbitrator. Babcock & Wilcox Construction, su-
pra at slip op. 8, citing Robert A. Gorman & Matthew W.
Finkin, Basic Text on Labor Law 1028 (2d ed. 2004).
In addition, in cases where arbitrators measure employee
conduct against a standard which conflicts with or contradicts
Board law, the Board has found the awards repugnant to the
Act and has refused to defer. In Union Fork & Hoe Co., 241
NLRB 907 (1979), the Board held that where an arbitrator ruled
that an employee was discharged for just cause, but failed to
consider well-established Board law regarding whether that
employee’s conduct was protected by the Act, such an award
was found to be “repugnant to the Act.” In that case, the arbi-
trator ruled that a union steward was insubordinate (and there-
fore was discharged for just cause), and failed to consider well-
established Board law which holds that a steward is protected
by the Act when fulfilling his role in processing grievances.
On that basis, the Board reasoned that the arbitrator measured
the steward’s conduct against a standard which conflicted with
Board law, and the arbitration award was clearly repugnant to
the policies and purposes of the Act, and was not entitled to
deference. Id. at 907–908.
Even though the Respondent in the instant case argues that
the facts presented to the arbitrator were “factually parallel” to
the unfair labor practice allegations,18 the Arbitrator considered
only whether Runion’s discharge was for just cause under the
collective-bargaining agreement, based on his alleged violation
of the Respondent’s harassment policy. The statutory rights at
issue were clearly not considered by the Arbitrator, and he
measured Runion’s conduct on the picket line against a stand-
ard which conflicts with or contradicts Board law. In this re-

18 See R. Statement of Position at p. 3; R. Br. pp. 20–22.
COOPER TIRE & RUBBER CO. 11
gard, the Arbitrator failed to consider well-established Board
precedent holding that picketing activity is protected by Section
7 of the Act, that the Board distinguishes between conduct in
the workplace and conduct on the picket line, and that a picket-
er’s use of even the most offensive language and/or gestures,
standing alone, does not forfeit the protection of the Act, so
long as those actions do not constitute a threat. In fact, the
Arbitrator’s award is devoid of any reference to the Act in any
regard. In addition, contrary to the Board law establishing that
conduct on the picket line is protected unless it is threatening to
other employees’ Section 7 rights, the Arbitrator held that
Runion’s statements “. . . would have been serious misconduct
in any context, but in the context of the picket line, where there
was a genuine possibility of violence, his comments were even
more serious.” (Jt. Exh. T, p. 12.) Such reasoning provides less
protection for picket line conduct than the Act affords, and such
a determination by the Arbitrator is inconsistent with the pur-
poses and policies of the Act, and the well-established Board
precedent. On that basis, I find that the award is “palpably
wrong” and simply not susceptible to an interpretation that is
consistent with the Act. Therefore, I find that the Arbitrator’s
award is “clearly repugnant” to the Act.
I note that the Board has recognized similar occasions where
it has refused to defer to arbitration awards that upheld disci-
pline or discharges under a “just cause” analysis for conduct
protected by the Act, where such awards were repugnant to the
Act. Babcock & Wilcox Construction, supra, slip op. 8; See, e.g.,
Mobil Oil Exploration & Producing, U.S., 325 NLRB 176,
177–179 (1997), enfd. 200 F.3d 230 (5th Cir. 1999) (refusing to
defer to arbitrator’s decision where it upheld discipline based
on employee’s protected concerted activities—the employee
was discharged for complaining that the employer intended to
discharge him for his union activities); Garland Coal & Mining
Co., 276 NLRB 963, 964–965 (1985) (arbitrator’s decision that
union president’s protected activity in refusing to sign a memo
for the safety director which supported the employer’s opposi-
tion to consolidation of the mine and safety committees, consti-
tuted insubordination upholding his suspension (but not dis-
charge), was “repugnant to the Act”); see also Cone Mills
Corp., 298 NLRB 661 (1990) (arbitrator’s finding that employ-
ee’s suspension from filing a complaint under the contract was
improper, but her refusal to leave the building as instructed
constituted insubordination under the just cause doctrine and
was sufficient to warrant denial of backpay, was “repugnant to
the Act”).
Based on the above, I find that the General Counsel has sat-
isfied its burden of establishing that the Arbitrator’s award does
not satisfy the Board’s standard for deferral under Spielberg
and Olin Corp., supra, and therefore the award is not entitled to
deference.
The Respondent also argues in its brief that the Arbitrator’s
award is consistent with Section 10(c) of the Act, and that
Runion can be denied reinstatement and backpay, even if the
employer interfered with the employee’s Section 7 rights, so
long as the employee was discharged for his misconduct and
not for any protected activity.19 In support of this argument, the

19 R. Statement of Position at p. 3; R. Br. at pp. 36–38 and 48.
Respondent, citing Anheuser-Busch, Inc., 351 NLRB 644
(2007), asserts that the Arbitrator found that Runion was dis-
charged “for cause” because he “engaged in misconduct by
yelling racist statements at African-American replacement
workers.”20
Section 10(c) of the Act provides, in relevant part, that “[n]o
order of the Board shall require the reinstatement of any indi-
vidual as an employee who has been suspended or discharged,
or the payment to him of any back pay, if such individual was
suspended or discharged for cause.” In Anheuser-Busch, Inc.,
351 NLRB 644, the Board noted that in an earlier case21 it ini-
tially held that the employer violated Section 8(a)(5) and (1) of
the Act by failing to give notice and bargain with the union
prior to installing and using hidden surveillance cameras. The
Board, however, relying on Section 10(c), denied a make-whole
remedy to the employees whom it discharged or suspended for
misconduct discovered through the use of those cameras. Id.
The United States Court of Appeals for the District of Colum-
bia Circuit affirmed the Board’s decision that the employer
violated Section 8(a)(5) and (1), but it remanded the case to the
Board to further address if the remedy should include make-
whole relief for the employees disciplined by the employer for
engaging in the misconduct discovered through the use of the
cameras. See Brewers & Maltsters Local 6 v. NLRB, 414 F.3d
36 (D.C. Cir. 2005). On remand, in its Supplemental Decision
and Order, the Board upheld its denial of the make-whole rem-
edy for those employees, finding that the employees in that case
were all disciplined “for cause.” Id. at 646–647. In that case,
the Board explained the reasons why Section 10(c)’s prohibi-
tion of a make-whole remedy where discipline was “for cause”
should be interpreted as including the situation in that case,
where the misconduct in question was uncovered through uni-
lateral and unlawfully implemented means. Id. at 647. The
Board found that the legislative history of Section 10(c) showed
that Congress’ purpose in enacting Section 10(c) was to insure
that employees who engaged in misconduct were subject to
discipline for that misconduct. Id., citing Fibreboard Paper
Products Corp. v. NLRB, 379 U.S. 203, 217 (1964).
In analyzing the Respondent’s argument, it is important to
note that the Arbitrator did not find that Runion was discharged
“for cause” as the Respondent alleges, rather, he found that the
discharge of Runion was upheld as “. . . having been for just
cause in accordance with the [collective-bargaining] agree-
ment.” (Arbitrator’s Opinion and Award, Exh. A, p. 14) (em-
phasis added). In Anheuser-Busch, Inc., supra, the Board noted
that Congress did not explicitly define the term “for cause.”
The Board has, however, explained that in the context of the
Act, the term “for cause” referred to discipline “that is not im-
posed for a reason that is prohibited by the Act.” Id. at 647.
The Board stated:
Cause, in the context of Sec. 10(c), effectively means the ab-
sence of a prohibited reason. For under our Act: “Manage-
ment can discharge for good cause, bad cause, or no cause at
all. It has, as the master of its own business affairs, complete
freedom with but one specific, definite qualification: it may

20 R. Br. at p. 37.
21 342 NLRB 560 (2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
not discharge when the real motivating purpose is to do that
which [the Act] forbids.” Id. at 647; citing Taracorp Indus-
tries, 273 NLRB [221,] at 222 fn. 8 [(1984) (quoting NLRB v.
Columbus Marble Works, 233 F.2d 406, 413 (5th Cir.
1956))].
The Board further noted that “[i]t is important to distinguish
between the term ‘cause’ as it appears in Section 10(c ) and the
term ‘just cause’ . . . . Just cause encompasses principles such
as the law of the shop, fundamental fairness, and related arbitral
doctrines. Cause, in the context of Section 10(c), effectively
means the absence of a prohibited reason.” Id. at 647; Taracorp
Industries, supra at 222 fn. 8; accord: Elkouri & Elkouri, How
Arbitration Works 974 (6th ed. 2003) (“‘[c]ause’ as used in
Section 10(c), should not be confused with ‘just cause’ as the
term is used by arbitrators”).
I find the facts of the instant case are distinguishable from
Anheuser-Busch, where the discipline was not imposed for a
prohibited reason, and was “for cause.” In the instant case,
despite the Arbitrator’s determination that there was “just
cause” for Runion’s discharge in accordance with the contract,
the evidence establishes that Runion was discharged for a pro-
hibited reason—the protected activity of engaging in picketing.
The fact that his picketing activity included the use of two rac-
ist statements was simply insufficient under extant Board law to
remove the protection from his picketing activity, and he was
therefore discharged for engaging in protected activity. The
Board specifically held in Anheuser-Busch, Inc., that “[a] ter-
mination of employment that is motivated by protected activity
is unlawful under Section 8(a)(1) and/or (3), and is not ‘for
cause,’ and as the termination is unlawful, ‘the Board can order
reinstatement and backpay.’” Id. at 648. On that basis, I find
the Respondent’s argument lacks merit, and that Section 10(c)
of the Act does not prohibit the Board from ordering reinstate-
ment and a make-whole remedy for Runion. In fact, as the
Board recently held in E.I. Dupont, 362 NLRB No. 98 (2015),
such relief “. . . is not only within the Board’s ‘broad’ remedial
discretion under Section 10(c) [citing NLRB v. Seven-Up Bot-
tling Co. of Miami, 344 U.S. 344, 346 (1953)], but is necessary
to ‘restore as nearly as possible the situation that would have
prevailed but for the unfair labor practices.’” Id. slip op. at 5;
citing State Distributing Co., 282 NLRB 1048 (1987).
Finally, the Respondent argues that “it is contrary to public
policy for the Board to continue to tolerate racism on the picket
lines and to provide employees making racist statements the
same level of protection under the Act as employees uttering
curse words or making other vulgar statements.”22 As dis-
cussed above, however, extant Board law establishes that
Runion’s statements, while racist and offensive, were not suffi-
cient to remove the protection of the Act from his protected
picketing activity, and that his discharge violated the Act. I am
bound to apply established Board precedent which the Supreme
Court has not reversed, leaving “for the Board, not the judge, to
determine whether that precedent should be varied.” Waco,
Inc., 273 NLRB 746, 749 fn. 14 (1984); accord: Pathmark
Stores, Inc., 342 NLRB 378, 378 fn. 1 (2004); See also, Los

22 R. Br. at p. 48.
Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979), enfd.
640 F.2d 1017 (9th Cir. 1981); and Iowa Beef Packers, Inc.,
144 NLRB 615, 616 (1963), enfd. in part 331 F.2d 176 (8th Cir.
1964).
Based on the record evidence in this case, and the well-
established Board law discussed above, I find that the Arbitra-
tor’s award is palpably wrong and not susceptible to an inter-
pretation that is consistent with the Act, and it is therefore
“clearly repugnant” to the Act. Accordingly, deferral to the
Arbitrator’s award is inappropriate, and I find that by discharg-
ing Runion for engaging in union and protected concerted ac-
tivities on the picket line, the Respondent violated Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The United Steel, Paper and Forestry, Rubber, Manufac-
turing, Energy, Allied Industrial and Service Workers Interna-
tional Union, AFL–CIO/CLC is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging its employee Anthony Runion on March
1, 2012, for engaging in union and/or protected concerted activ-
ities, including his participation in picketing activities, the Re-
spondent violated Section 8(a)(3) and (1) and of the Act.
4. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having unlawfully discharged employee
Anthony Runion in violation of Section 8(a)(3) and (1) of the
Act, must offer him reinstatement and make him whole for any
loss of earnings and other benefits he may have suffered as a
result of the discrimination against him. Backpay shall be
computed on a quarterly basis, less any interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010).
The Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters. The Respondent shall also compensate Runion for the
adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year.
Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No.
10 (2014).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended23

23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
COOPER TIRE & RUBBER CO. 13
ORDER
The Respondent, Cooper Tire & Rubber Company, Findlay,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees for engaging in union and/or
protected concerted activities, including participating in picket-
ing activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Antho-
ny Runion full reinstatement to his former job, or if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed,
(b) Make whole Anthony Runion for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section of
this decision.
(c) Compensate Anthony Runion for adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
file a report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters for said
employee.
(d) Within 14 days from the date of this Order, remove from
its files any references to its unlawful discharge of Anthony
Runion, and within 3 days thereafter notify said employee in
writing that this has been done and that the discharge will not
be used against him in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of the Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Findlay, Ohio, copies of the attached notice marked
“Appendix.”24 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-

24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since March 1, 2012.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. June 5, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose a representative to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against
you for engaging in union and/or protected concerted activities,
including participation in picketing activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Anthony Runion full reinstatement to his former job, or if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Anthony Runion whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL compensate Anthony Runion for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and WE WILL file a report with the Social Security Administra-
tion allocating the backpay award to the appropriate calendar
quarters for said employee.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of An-
thony Runion, and WE WILL, within 3 days thereafter, notify
said employee in writing that this has been done and that his
discharge will not be used against him in any way.
COOPER TIRE & RUBBER COMPANY
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/08–CA–087155 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th
Street, N.W., Washington, D.C. 20570, or by calling (202) 273-
1940.