UNITED STATES OF AMERICA NATIONAL LABOR RELATIONS ...

UNITED STATES OF AMERICA NATIONAL LABOR RELATIONS BOARD REGION 8

COOPER TIRE & RUBBER COMPANY And

CASE 08-CA-087155

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS UNION

BRIEF OF COUNSEL FOR THE GENERAL COUNSEL IN RESPONSE TO THE BRIEF OF AMICUS CURIAE NATIONAL ASSOCIATION OF MANUFACTURERS

Kelly Freeman (00080000) Counsel for the General Counsel National Labor Relations Board 1695 AJC Federal Building 1240 East 9th Street Cleveland, Ohio 44199 [email protected] 216-522-3742

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By Order dated November 10, 2015, the Board granted the motion of Amicus Curiae National Association of Manufacturers (NAM) for leave to file an Amicus brief and accepted its brief. The Board’s Order further invited any party to this matter to file a response to the Amicus brief. Counsel for the General Counsel submits her response below. The thrust of the brief filed by the NAM is that the finding of an unfair labor practice by ALJ Randazzo is inconsistent with the nation’s laws against race discrimination and therefore should be reversed. The NAM maintains that the Respondent has been placed in the untenable situation of running afoul of the NLRA because of its desire to comply with federal antidiscrimination statutes. Counsel for the General Counsel acknowledges that the Board has an obligation to harmonize its interpretation of the Act with other laws including our federal statutes against race discrimination. Counsel for the General Counsel responds, however, that Amicus NAM has not demonstrated a conflict of laws. The instant case is clearly distinguishable from the cases relied on by the NAM both on the facts and the law. Thus, there is no reason for the Board to reconsider the case law upon which the ALJ relied that clearly establishes a violation of the Act. I.

ALJ Randazzo’s Finding of an Unfair Labor Practice Does Not Conflict With the Title VII or Other Anti-Discrimination Statutes The NAM argues that had the Respondent not discharged Runion for the remarks he

made on the picket line, it would have been subject to a claim that it was tolerating the existence of a hostile work environment based on race and in violation of Title VII. It then claims that various federal courts have found the existence of a hostile work environment on facts similar to those found in the instant case. Favorable excerpts from those decisions are sprinkled through its brief. A full and fair reading of those cases, however, does not support the conclusions that the

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NAM would like the Board to draw. Indeed, the NAM has not cited a single case in which the court has found race discrimination on facts such as those found here. The essential and undisputed facts of the instant case are as follows. The Respondent based its discharge decision on one incident on the picket line in which Runion made two statements that can be fairly characterized as reprehensible and evincing racial prejudice. Both statements were made after vans carrying replacement workers had already moved past the picket line, and one was made toward fellow picketers stationed across the driveway. The Respondent became aware of the statements through routine reports made by its security personnel. The record does not contain any evidence of any potential aggrieved parties complaining to the Respondent about the statements, nor does the record reflect that the incident was ever raised by the Respondent as a matter of concern through its joint effort with the Union to monitor the picket line and maintain peace. Further evincing a clear lack of urgency, the Respondent did not discharge Runion until after the lockout, after the picketing had ended, and after the replacements had departed. Based on the case law cited in its brief, the NAM claims that the courts have found that a single instance of voiced racial slurs by a non-supervisory employee creates or can create an unlawfully hostile work environment and expose the Respondent to liability. But none of those cases stand for that proposition. The NAM has selected passages from those cases that suit its argument but neglected to include a more detailed factual and legal analysis of each case which would show that the cases are easily distinguishable from the instant case. In particular, NAM fails to mention the sharp distinction drawn by the courts between harassment by a supervisor as opposed to that committed by a co-worker. The bottom line is that NAM has fabricated a fear of liability where none should exist.

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A.

Offensive Remarks by a Non-Supervisory Employee Alone Are Highly Unlikely to Create a Hostile Work Environment

NAM begins its argument by stating, as a proposition of law, that in order to avoid liability for certain types of co-worker harassment, an employer must prove that it exercised reasonable care to prevent and promptly correct the harassment. NAM Brief p. 7 (Emphasis added). In support of that proposition, it cites Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998), both decided by the United States Supreme Court on the same day. But both of those cases dealt with the vicarious liability of employers for the hostile work environment created by supervisory employees. The holding in those cases is that, “An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” At 777. (Emphasis added). The Court goes on to say that the employer may establish an affirmative defense to liability when no tangible employment action has been taken against the victim and if the employer can establish: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” At 777-778. NAM also misleadingly cites to Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1288 (11th Cir. 2003) and that Court’s quotation of EEOC Notice 915.002, at Sec. V.C.1.f. (June 18, 1999). NAM Brief p. 7. Again, that case dealt with the vicarious liability of an employer for the conduct of a supervisor. The holding does not speak to the issue of the conduct of a non-supervisory co-worker. Moreover, NAM failed to provide the full name of the EEOC

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document cited by the Court. The Court’s decision identifies the document as, “EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, at V.C.1.f. (June 18, 1999).” At 1288. (Emphasis added). NAM cites a number of federal court cases in which it is suggested that an employer may possibly face liability for the conduct of a non-supervisory employee, but none of those cases involved findings of liability based solely on conduct by non-supervisory employees. The reason for the paucity of case law finding that a hostile work environment was created by nonsupervisory co-workers is undoubtedly that, as discussed below, in order to demonstrate a hostile work environment, a plaintiff must show that racially-motivated conduct has altered his conditions of employment. B.

Runion’s Comments Were Isolated “Offensive Utterances” and Thus Did Not Raise the Potential for Employer Liability

In Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), the U.S. Supreme Court pointed out that the mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII. At 67. In other words, if an offensive remark is not serious enough to affect an employee’s conditions of employment, it is not actionable under Title VII. In Reed v. Proctor & Gamble Mfg. Co., 556 Fed App’x 421, 433 (6th Cir. 2014), the Sixth Circuit was presented with the isolated comments of co-workers that were similar to those made by Runion. It concluded that these comments were nothing more than “offensive utterances” of the type alluded to by the Meritor Court. As a result, it held that these remarks did not serve to establish a hostile work environment and it dismissed the complaint. At 433-434. In its brief, NAM fails to establish how Runion’s remarks changed anybody’s working conditions so as to create a hostile work

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environment. The record does not support that even one employee complained at the time of the incident or even much later when the Respondent discharged Runion. Moreover, Runion was not a supervisor and so he did not have the capacity to change or effectively threaten to change anyone’s working conditions. No court cited by the NAM would have found that his conduct created a hostile working environment.1 Finally, any argument that Respondent took action against Runion to forestall the possibility of complaint rings hollow where the Respondent showed no sense of urgency or concern about Runion’s actions until long after it learned of the incident and subsequent to the end of the lockout and picketing. Although it had established a collaborative process with the Union to monitor and control the picket lines, there is no evidence that the Respondent ever sought to address the Runion incident through that procedure. One must presume that if the Respondent was truly concerned about being accused of tolerating a hostile work environment, it would have brought that concern to the Union and sought a remedy that would restrain any future alleged misconduct by Runion or any other employee engaged in the picketing. If it was concerned about liability, its actions and omissions after the incident belie any such concern. C.

The Case Law Cited By NAM Is Readily Distinguishable From the Instant Case

The first case relied on by the NAM is Boyer-Liberto v. Fontainebleu Corp., 786 F.3d 264, 280 (4th Cir. 2015). The NAM erroneously characterizes the holding in that case to be that a racially hostile work environment is created when an employee is the subject of two racial slurs. The plaintiff in that case, Liberto, was confronted by an employee who the Court found to be a                                                              1

 Whether an environment is hostile or abusive can be determined only by looking at all the circumstances. These  may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or  humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work  performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). (Emphasis added) 

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supervisor. The latter hurled racial epithets at Liberto and significantly also threatened to get her fired. The Fourth Circuit noted that a single act of harassment may not be actionable on its own, but an isolated incident can “amount to discriminatory changes in the terms and conditions of employment” if that incident is “extremely serious.” See, Faragher v. City of Boca Raton, 524 U.S. 775 (1998). That level of severity is more readily found when the harasser is a supervisor because a supervisor has the ability to impact the work environment in a way that a co-worker does not. The Court acknowledged that an employer can be held liable for harassment by a co-worker but only if the employer was negligent in controlling working conditions. Moreover, that level of negligence may be difficult to establish if the harassment is not reported by the aggrieved party. According to the Court, “different rules apply” when the harasser is the victim’s supervisor because then the employer is strictly liable. At 278. The Fourth Circuit thus held that the isolated racial comments directed at Liberto were extremely serious because the harasser was a supervisor, could therefore effectively recommend or implement disciplinary action against her, and threatened to use that authority to get Liberto fired. At 280-281. Conversely, citing its earlier ruling in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), the Court stated that it would not find a hostile work environment where a racist remark is made by a mere co-worker and not aimed at the complainant (Jordan) or any other employee. At 281. In the instant case, Runion was not a supervisor, he did not direct his racist remarks toward any particular employee, nor does the record contain evidence that any employee complained about his remarks. Thus, a full reading of the Boyer-Liberto decision does not support the NAM’s assertion that the Fourth Circuit would find a hostile work environment under the instant facts. On the contrary, the Respondent here would not be held liable for the

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creation of a hostile work environment because the harasser was a non-supervisory co-worker, the comments were isolated and non-threatening, they were not directed to any employee, and there is no evidence that any employee complained to the Respondent about the incident. There is another very significant factual distinction between the Boyer-Liberto case and the instant facts. The Court was very much concerned with the claim that the employer there terminated Liberto in retaliation for her complaints of racial discrimination. At 281-284. While the Court provides a separate legal analysis on the retaliation claim of Liberto, the facts are very closely intertwined between those issues and the claim of retaliation which clearly had a strong bearing on the Court’s finding of a hostile work environment. Retaliation is not an issue in the instant case. There is no evidence that anyone complained to the Respondent, nor that anyone was retaliated against. Notably, retaliation is at issue in every case relied on by the NAM in its brief. NAM cites Ellis v. Houston, 742 F.3d 307, 320 (8th Cir. 2014) for the proposition that statements similar to those made by Runion can be used to support claims of a hostile work environment. NAM Brief, p. 6. While the Court refers to those types of statements in its factual analysis, the racial harassment in Ellis was pervasive and included extensive misconduct by supervisors toward the African American plaintiffs. The latter were corrections officers at the Nebraska State Penitentiary and the evidence showed that they experienced widespread daily harassment for a period of months at the hands of at least five supervisors as well as some fellow co-workers. They were subjected to constant racial taunts and slurs by the supervisors and when co-workers participated in this conduct, the supervisors stood by laughing and refused to step in to stop this conduct. The supervisors also discriminated by giving the plaintiffs inferior job assignments, and retaliated against them for reporting harassment. At 315-320.

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As a result of the extensive and long term racial harassment experienced by the plaintiffs, the 8th Circuit had no difficulty finding that a hostile work environment had been created. This finding was not based, as the NAM brief would like the Board to infer, on one or two isolated racial comments. Moreover, the Court noted, as did the Boyer-Liberto Court, that the involvement of supervisors in racial harassment significantly changes the analysis because “they impact the work environment far more severely than similar conduct by coequals.” At 320. The facts of Ellis are further distinguishable from the instant facts because the Court found that the plaintiffs were retaliated against because they reported the harassment to a superior. At 324. Indeed, in Ellis, the 8th Circuit Court distinguished an earlier decision it made in Smith v. Fairview Ridges Hospital, 625 F.3d 1076 (8th Cir. 2010). In the latter case, the Court refused to find a hostile work environment where most of the events involved conduct that was not particularly severe, involved co-workers as opposed to supervisors, and could only be considered non-actionable, mere “offensive utterances.” The Court further noted the infrequency of the incidents and that several of them were not of an overtly racial nature. At 321. NAM cites Reed v. Proctor & Gamble Mfg. Co., 556 Fed App’x 421, 433 (6th Cir. 2014), for the proposition that comments by white employees similar to those made by Runion can help show that conduct is sufficiently pervasive to create an abusive work environment. NAM Brief, p. 6. The 6th Circuit made that comment in a footnote referring to the opinion of the DC Circuit in Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (DC Cir. 2013). At 433, fn 2. The Reed Court, however, dismissed the discrimination claim in finding that the three instances of harassing behavior cited by the plaintiff, two of which were offensive comments (referring to the plaintiff eating watermelon and fried chicken) made by co-workers that were similar to those made by Runion, were not serious or threatening and thus were only “offensive utterances.” At 433.

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They did not create a hostile work environment. Any application of the analysis used by the Reed Court to the instant facts would clearly find that Runion did not create a hostile work environment by the isolated comments that he made. Navarro v. U.S. Tsubaki, Inc., 577 F.Supp.2d 487, 510 (D. Mass. 2008) is cited by NAM for the proposition that a co-worker’s comment that an employee “should be picking watermelons” rather than working in a machine shop and describing him as a “monkey” could show a hostile work environment. NAM Brief, p. 6-7. The Navarro Court, however, did not find a hostile work environment based on that statement alone. Indeed the finding of a hostile work environment by the Navarro Court was based on numerous instances of harassment that occurred over a period of years. At 511. Moreover, the evidence showed that supervisors were very much involved in the harassment along with co-workers of the plaintiffs. There is nothing in the opinion of the Court to suggest that, in the instant case, it would find that Runion created a hostile work environment by the isolated comments he made. In citing Dowd v. United Steelworkers of Am., 253 F.3d 1093, 1102 (8th Cir. 2001), NAM makes reference to a case that involved racial epithets hurled by picketers on a picket line toward strike breakers. NAM Brief, p. 5. That is as close as that case gets to the facts of the instant case. Dowd involved extensive offensive conduct engaged in by pickets, including union stewards. The conduct continued for weeks extending well past the end of the strike. It included not only racial slurs directed at the plaintiffs, but also threats of violence and aggressive actions such as spitting on their cars and throwing tacks under their tires. Thus, the evidence showed that the plaintiffs had cause to fear for their personal safety. In contrast, the comments of Runion were not directed at anyone specifically, nor were they of a threatening or aggressive nature. Moreover, in Dowd the union incurred liability because its stewards engaged in the

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harassment and failed to intervene when others on the picket line joined in. In addition, the union’s president was fully aware of the harassment and guilty of it himself. At 1102-1103. In sum, the cases cited by NAM do not establish that Runion created a racially hostile work environment nor do they demonstrate that the Respondent would have been held liable for it. These cases all involve the discriminatory conduct of supervisors or stewards and Runion was neither. Runion was a solitary non-supervisory employee who, on one occasion, made isolated remarks that were not directly targeted at anyone. The record does not contain any evidence that his conduct resulted in a harassment complaint being filed by an employee. His remarks were offensive utterances by a non-supervisory employee for which the Respondent would not have been held liable under any of the cases the NAM cites as authority to support its assertion. II.

There is No Reason for the Board to Revisit its Holding in Clear Pine Mouldings In its brief, the NAM suggests that the standards set by the Board in Clear Pine

Mouldings2 to evaluate picket line misconduct are old, outdated, and out of step with the case law in anti-discrimination cases as well as the currents in modern society. It notes that the case was decided prior to most of the court rulings that define current Title VII law and that a “sea change” has occurred in the meantime. There is nothing about Judge Randazzo’s finding of an unfair labor practice that requires the Board to change its standards for reviewing picket line misconduct. The fact that Clear Pine Mouldings has stood for so long as good law speaks to the strength of that Board decision and its inherent flexibility. It has clearly stood the test of time as evidenced by the fact that it has remained good law through numerous incarnations of the Board. As for the tenor of the times, there is nothing new about finding racial remarks such as those made by Runion to be                                                              2

 268 NLRB 1044 (1984). 

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reprehensible. There is also no new reason to allow an employer to discharge an employee like Runion for engaging in protected concerted activity. Counsel for the General Counsel has every confidence that if Runion had truly created a hostile work environment, a Clear Pine Mouldings analysis would have supported the decision to discharge him. Clear Pine Mouldings held that an employer cannot rely on striker misconduct to deny reinstatement unless that misconduct “reasonably tend[ed] to coerce or intimidate employees in the exercise of rights protected under the Act.” 268 NLRB at 1046. Being subjected to a hostile work environment would generally tend to coerce or intimidate employees. Moreover, Clear Pine Mouldings, and subsequent cases applying that standard, did not address conduct that was independently unlawful under another statute, and it should not be interpreted to abrogate the Board’s clear obligation to harmonize its interpretation of the Act with other federal statutes. Thus, the Board should interpret Clear Pine Mouldings as precluding an employer from denying reinstatement unless the striker’s misconduct involved a threat, coercion, or other independently unlawful conduct. III.

Conclusion Although the General Counsel acknowledges that Runion made comments on the picket

line that were reprehensible and evinced racial prejudice, NAM’s claim that there is a conflict of laws between the Board’s Clear Pine Mouldings doctrine and Title VII is nothing more than a red herring. NAM has failed to cite even one instance in which the courts have found that conduct like Runion’s created a hostile work environment and consequently held an employer liable for tolerating the misconduct. The cases relied on by the NAM are easily distinguished because they involve supervisory conduct, or union steward conduct in the case of a union defendant, and thus apply a different legal standard. Moreover, except for the Boyer-Liberto

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case, they deal with truly pervasive conduct involving multiple extremely serious incidents occurring over significant periods of time. Boyer-Liberto is easily distinguished because it involved threatening conduct by a supervisor, and included the element of retaliation. If the cases relied on by NAM establish anything, it is that the courts have found isolated comments of the sort made by a non-supervisory co-worker like Runion to be nothing more than “offensive utterances” that do not violate Title VII. The Board has long trusted the standards it set forth in Clear Pine Mouldings. Those standards have proved flexible and effective in making sense of whether and under what circumstances picket line conduct is protected. Applied to the instant facts and consistent with other Board case law, these standards clearly dictate a finding that Runion was unlawfully discharged because of his protected activity. Counsel for the General Counsel is unaware of any prior case in which a Board finding of a violation using the Clear Pine Mouldings analysis has contradicted Title VII standards. Most certainly, based on the foregoing, that is not what happened here. The arguments offered in the brief of Amicus Curiae NAM are without merit and should not be considered in reviewing the decision of ALJ Randazzo in this matter. Dated at Cleveland, Ohio this 24rd day of November, 2015. Respectfully submitted, /s/ Kelly Freeman Kelly Freeman Counsel for the General Counsel National Labor Relations Board 1695 AJC Federal Building 1240 East 9th Street Cleveland, Ohio 44199 [email protected] 216-522-3742

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Proof of Service I hereby assert that copies of the foregoing Brief of Counsel for the General Counsel in Response to the Brief of Amicus Curiae National Association of Manufacturers were served by electronic mail this day of 24th day of November, 2015 to the following: Linda E. Kelly Patrick N. Forrest Manufacturers’ Center for Legal Action 733 10th Street, N.W., #700 Washington, D.C. 20001 [email protected] [email protected] Maury Baskin Michael J. Lotito Brendan J. Fitzgerald Littler Mendelson, P.C. 1150 17th Street, N.W. #900 Washington, D.C. 20036 [email protected] [email protected] [email protected] Nancy Noall Morris Hawk Weston Hurd, LLP The Tower at Erieview 1301 East 9th Street, Suite 1900 Cleveland, Ohio 44114 [email protected] [email protected] James G. Porcaro Schwarzwald, McNair & Fusco, LLP 616 Penton Media Building 1300 East Ninth Street Cleveland, Ohio 44114-1503 [email protected]

/s/ Kelly Freeman Kelly Freeman Counsel for the General Counsel National Labor Relations Board 1695 AJC Federal Building 1240 East 9th Street Cleveland, Ohio 44199 [email protected]

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