The Eighth Circuit Court of Appeals had no beef with the termination of employees who put up negative posters about their employer during a union organizing campaign.
In MikLin Enterprises, Inc., employees at ten Twin Cities’ Jimmy John’s sandwich-shop restaurants were in the process of trying to bring in a union to represent them. One big point of contention was the company’s policy prohibiting employees from calling in sick without first finding a replacement to cover their shift. Failure to attend a shift without finding a replacement resulted in termination.
Workers Roll Out Negative Ads
During the organizing campaign, the employees attempted to pressure the company by putting up 3,000 posters on public bulletin boards within the stores as well as in other locations around the Twin Cities which contained two identical images of Jimmy John’s sandwiches. The first image stated: “Your sandwich made by a healthy Jimmy John’s worker.” The second image stated: “Your sandwich made by a sick Jimmy John’s worker.” Below both images there was text that asked “Can’t tell the difference? That’s too bad because Jimmy John’s workers don’t even get paid sick days. Shoot, we can’t even call in sick. We hope your immune system is ready because you’re about to take the sandwich test.” Interestingly, the restaurants had regularly and consistently passed all health department inspections.
The six employees who coordinated the attack were terminated. They then challenged their terminations before the National Labor Relations Board (NLRB).
Under Section 7 of the National Labor Relations Act, employee communications to the public that are part of an ongoing labor dispute are protected unless they are “so disloyal, reckless, or maliciously untrue as to lose the Act’s protections.” The NLRB found for the employees, noting that “an employee’s public criticism . . . must evidence ‘a malicious motive,’” be made with knowledge of the statements’ falsity, or be made with reckless disregard for their truth in order to lose protection.
Because the NLRB found that the employee’s statements were at least arguably true, albeit hyperbole, the statements were not knowingly false and therefore were not subjectively malicious. As a result, the NLRB determined that the statements made in the posters were protected.
Claim of Protection Doesn’t Cut the Mustard
The Eighth Circuit disagreed, finding that the NLRB misstated and misapplied the law. Noting that “there is no more elemental cause for discharge of an employee than disloyalty to his employer,” the Court clarified that the operative question is not the employee’s subjective intent to harm their employer. Rather, the key inquiry is whether the employee’s public communications reasonably targeted the employer’s labor practices or if they indefensibly disparaged the quality of the employer’s product or services. In other words, although the posters dealt with terms and conditions of employment – sick leave – this alone did not protect the statements when they were made in an objective effort to harm the employer.
Under this different standard, the Court observed that an allegation that a food industry employer is selling unhealthy food is the labor-relations dispute’s “equivalent of a nuclear bomb.” Since the employees’ tactics were unnecessarily excessive, the Court concluded that the employees’ statements were unprotected and that their terminations were therefore lawful.
We first reported on this matter in 2011 in our article Firings Over “Sick Day” Flyer May Have Been Unlawful. Almost 6 years later (a far cry from the Jimmy Johns motto of “freaky fast”), we finally have some assurance that even though an employee’s statements may contain technically true allegations, such statements may still lose the protections of the NLRA if they are made in an attempt to attack and harm the employer, even in the absence of evidence of subjective malice.