NLRB Expands the Boundaries of Employee Protest; Limits Employers’ Discipline Rights

by Franczek Radelet P.C.
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Last week, the NLRB addressed whether, and to what extent, employees can criticize their employer in public. In MikLin Enterprises, the Board held 2-1 that a Jimmy John’s franchisee violated Section 8(a)(3) of the National Labor Relations Act (NLRA) when it disciplined employees for distributing posters which implied the franchisee’s sick leave policy would lead to customers getting sick from the franchisee’s food. The Board held MikLin supervisors further violated the NLRA when they encouraged employees, supervisors and managers to harass union supporters via social media.

Miklin Enterprises, Inc. operates ten Jimmy John’s sandwich shops in the Minneapolis-St. Paul area. MikLin did not offer paid sick leave. MikLin’s sick leave policy required workers to find a replacement if they called out sick, or else face discipline. Several employees, working with the Industrial Workers of the World (IWW), placed posters on bulletin boards at MikLin Jimmy John’s locations. The posters showed two identical sandwiches, one described as made by a healthy employee, the other made by a sick employee. The poster stated, “Can’t Tell the Difference? That’s too bad because Jimmy John’s employees don’t get paid sick days. Shoot, we can’t even call in sick. We hope your immune system is ready because you are about to take the sandwich test….Help Jimmy John’s workers win sick days.” MikLin eventually terminated six employees and issued warnings to three others involved in the postings.

MikLin contended that the communications were disloyal and unrelated to the dispute, and therefore not protected. The Board, applying NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), found that because the posters specifically referenced the refusal to grant paid sick leave, and because the posters encouraged the public to help workers “win” sick days, they were protected communications. Although the poster’s description of the leave policy was inaccurate, it conveyed the general impression that employees felt compelled to work while sick. Therefore, it was not maliciously untrue. Further, the message was not disloyal enough to be unprotected under Jefferson Standard. The posters did not use inflammatory language, and their message did not stray from the context of the labor dispute. The posters did not allege sandwiches were actually contaminated or mention specific customers who had become ill. Instead, the posters suggested the “realistic possibility” of sick workers transmitting illness because of MikLin’s policy.

The Board further held that certain social media postings on a Facebook page used by MikLin employees interfered with employees’ protected union activities. The Board held an assistant manager who posted a Union supporter’s phone number, and encouraged employees to call him, crossed the line. Additionally, several supervisors left comments on a crude, altered picture of that employee posted to Facebook. The Board found their comments rose to the level of harassment, meant only to humiliate the employee. Therefore, reasonable employees would be dissuaded from supporting the Union based on these comments, in violation of Section 8(a)(1).

Buried in a footnote, the Board also overruled a long-standing NLRB precedent, Coca Cola Bottling Works, 186 NLRB 1050, which held that striking employees had purposefully instilled fear in customers, and were not protected under the NLRA. Board Member Johnson issued a strong dissent, arguing Coca Cola is still viable. Johnson also would have held the false statements and greatly exaggerated potential health risks were not protected under Jefferson Standard. According to Johnson, the portrayal of an “infinitesimal risk as a clear and present danger to public health strongly signal[ed] malicious intent.”

Miklin diminishes an employer’s ability to discipline workers for publicly criticizing or disparaging their employer. The decision also puts employers and supervisors on notice that social media postings which ridicule an employee, or encourage other employees to do the same, could be a violation of the NLRA. 

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Franczek Radelet P.C.
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