Ruling on “Fried Chicken and Watermelon”: Do Picketers Have a Right to Express Racist Views?

When workers strike, the law affords their speech a high degree of protection. Often, picket lines— invariably in public spaces, such as sidewalks and roadsides— become raucous, with taunts directed at replacement workers. When taunts become physically intimidating, a striker loses protection of the law. But what if a striker calls replacements “niggers”? In a 2006 decision, Airo Die Casting, the NLRB said that the speech was protected. In 2011, a different case arose. Cooper Tire locked out employees, and hired replacements. The company fired a picketing white worker for making references to "fried chicken and watermelon" as a group of mostly black replacement workers crossed the picket line. Cooper said it must provide replacement workers with an atmosphere that is free of racial harassment. The case is now heading to the NLRB in Washington D.C. The United Steel Workers points out that a ruling against the picketer here could mean that future pickets who shout "fuck" (and equivalent expressions) could be fired for sexual harassment. Lost in the discussion… the divisive effect of a bargaining lockout. The company did this because the union failed to agree to a contract—and the company contributed to a racial divide by locking out a mostly white workforce and replacing them with a mostly black workforce.