Responding to Outrageous Employee Conduct in the Wake of the NLRB’s Jimmy John’s Decision
Most employers know that Section 7 of the National Labor Relations Act gives employees (in both union and non-union settings) the right to engage in protected and concerted activity, including the right to make communications to the public that are related to an ongoing dispute about the terms and conditions of employment. However, the Section 7 rights of employees are not without limitation. Communications may be deemed so disloyal, reckless or maliciously untrue that they lose their protected status. On this point, the Supreme Court noted that disloyalty might be demonstrated by “a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464, 471 (1953). A recent case arising from the International Workers of the World’s (yes the “Wobblies” are back) attempt to unionize several Jimmy John’s sandwich shops operated by MikLin Enterprises in and around the Twin Cities signals a possible departure from the rule established in Jefferson Standard.
Following a close but unsuccessful union organizing campaign, the union began a second campaign to secure paid sick days for MikLin’s employees. Part of the campaign involved putting up posters that called into question the healthfulness of sandwiches prepared in MikLin’s shops. The posters erroneously stated that employees were not allowed to call in sick, and implied that persons eating the sandwiches risked illness by doing so. Several employees supporting the campaign met with MikLin to demand that it provide sick pay to employees, and threatened to put the posters up all over the Twin Cities. The union also issued a press release entitled “Jimmy John’s Workers Blow the Whistle on Unhealthy Working Conditions.” MikLin responded by attempting to find and take down the offending posters, and by terminating those employees it knew to be involved in the union’s campaign.
Under Jefferson Standard, it would seem that MikLin had good reason to discharge the employees involved. While the campaign was related to a dispute over the terms and conditions of employment (the employer’s sick pay policy), it was not accurate (the employer didn’t force employees to work when sick, and, in fact, had a policy prohibiting it) and clearly disparaged the employer’s product with the intention of hurting its business. However, as with many recent NLRB decisions, the ALJ found a creative way to find against MikLin, and order reinstatement and restitution to the discharged employees. First, the ALJ breezed over the inaccuracy, calling it “protected hyperbole.” Next, while he noted that MikLin actually had a rule prohibiting potentially contagious employees from working, the ALJ rationalized away the disparagement of MikLin’s product opining that sick employees may attempt to cover up their illness and therefore potentially increase the risk to the public of food borne illness.
Takeaways: While the MikLin case may be ripe for reversal on appeal, it certainly demonstrates that the NLRB intends to take aggressive action where it believes an employee has been terminated for engaging in protected conduct. Before you terminate an employee for making untrue, malicious and/or disparaging communications about your business or its product or service, review the substance and purpose of the communications to determine if they may fall under the protection of Section 7. If the comments relate to a dispute over terms and conditions of employment and can in some way be considered concerted (because they were made by a group, arise out of group action or were intended to solicit group support) they may well be deemed concerted by the NLRB. Notwithstanding the MikLin decision, employers faced with outrageous conduct that may be protected should contact their labor counsel to review the circumstances and discuss alternative strategies for effectively responding to the conduct.