Despite a federal court ruling, Cooper Tire & Rubber Co. said Wednesday it has not reinstated a unionized worker who was fired for shouting racist comments at replacement workers during the lockout of unionized workers in 2012.

“Cooper Tire & Rubber Co. is committed to maintaining a workplace free from harassment and discrimination,” Cooper Tire stated. “Throughout the (court proceedings), findings and appeals that have transpired since (the worker’s) termination, Cooper has maintained this position and we are currently evaluating further appellate options with respect to the latest rulings.”

The majority on the 8th Circuit Appeals Court gave the locked-out worker a pass.

“Impulsive behavior on the picket line is to be expected, especially when directed against nonstriking employees or strike breakers,” stated the majority opinion.

Many replacement workers reportedly were black. The locked-out employee, while picketing in January 2012, yelled to a van carrying replacement workers, “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.”

But the locked-out employee did not coerce or intimidate the temporary workers in the exercise of their rights, according to the court’s majority opinion.

“While yelling, (the locked-out worker’s) hands were in his pockets; he made no overt physical movements or gestures,” the court majority opinion stated. “There is no evidence the replacement workers heard (the locked-out employee’s) statements” though dozens in the crowd did.

The court’s majority opinion sparked a blistering dissent from the minority.

Nothing in labor law permits “outright racial insult and bigotry as expressed by (the locked-out employee) … at an entrance just slightly off the edge of the employer’s property,” the dissenting opinion stated.

The dissent also discussed federal prohibitions of hostile work environments.

“No employer in America is or can be required to employ a racial bigot,” the dissenting opinion stated.

When Cooper’s dispute with unionized workers ended in February 2012, Cooper began recalling locked-out employees. It did not recall the unionized worker who yelled the racist statements. Instead, it discharged him.

The National Labor Relations Board ordered the worker reinstated with full back pay and benefits.

That order was appealed to the 8th Circuit Court.

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