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Employee Disloyalty Not Sufficient for Firing Where Part of Concerted Protest, Board, Eighth Circuit Holds

The National Labor Relations Board did not err in holding a sandwich store chain violated the National Labor Relations Act by disciplining and terminating employees for placing posters on community bulletin boards in the public areas of several of its locations suggesting the chain required sick employees to come to work and make sandwiches, the federal appeals court in St. Louis has ruled. MikLin Enters., Inc. v. NLRB, No. 14-3099 (8th Cir. Mar. 25, 2016).

MikLin Enterprises owns and operates several Jimmy John’s restaurants in Minneapolis, Minnesota. It had a sick leave policy that required employees to find replacement workers when they called out sick. Several employees attempted to persuade the company to change the policy by placing posters on community bulletin boards. According to the court, the posters:

featured two identical, side-by-side photographs of a sandwich…. Above the left sandwich was a label stating: “Your Sandwich Made By A Healthy Jimmy John’s Worker.” Above the right sandwich was a label stating: “Your Sandwich Made By A Sick Jimmy John’s Worker.” Below the photographs, the poster stated: “Can’t tell the Difference?” “That’s Too Bad Because Jimmy John’s Workers Don’t 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.”

MikLin removed the posters, but . . . the employees then posted the flyer in public areas surrounding several Jimmy John’s restaurants. Those flyers also included the telephone number of MikLin’s co-owner and vice-president. The employer did not change its sick leave policy.

MikLin fired six employees for “being the leaders and developers” of the flyer campaign and disciplined three others for being “foot soldiers” in the campaign.

Unfair labor practice charges were filed against MikLin alleging violations of the NLRA. By a 2-1 vote, the NLRB held the flyers were “sufficiently related to an ongoing labor dispute to be protected and that there was nothing in the posters that was so disloyal, reckless, or maliciously untrue so as to cause the employees to lose the Act’s protection.” It said that in order to lose the NLRA’s protection, a false statement has to be made with “actual malice,” which it defined as “knowledge of falsity or reckless disregard for the truth.” The Board held that actual malice was not shown in this case.

MikLin appealed, and in a 2-1 decision, the Eighth Circuit affirmed. Finding substantial evidence to support the Board’s decision that the flyer’s untrue claim that workers could not call-out sick was not so maliciously false as to place it outside the Act’s protection, it enforced the Board’s order.

Dissenting, Judge James Loken said the Board’s definition of malice was so narrow that it effectively removed employee disloyalty from the analysis. He would have found the employees’ knowledge of the statement’s falsity concerning their ability to call in when sick was sufficient to show a malicious intent to harm the employer, which was not protected. The discharge of employees, therefore, would not violate the Act, in Judge Loken’s opinion.

The decisions in this case raise questions about the signal they might send about employee latitude when publicly disparaging their employers and how employer and employee rights will be balanced.

Jackson Lewis P.C. © 2020National Law Review, Volume VI, Number 123


About this Author

Steven S. Goodman, Jackson Lewis, Medical Leave Lawyer, Employment Disability Disputes Attorney

Steven S. Goodman is a Principal in the Long Island, New York, office of Jackson Lewis P.C. For the past 32 years, he has been engaged exclusively in the practice of labor and employment law. From 1975 until 1979, Mr. Goodman was with the National Labor Relations Board at Region 29.

Since joining the firm, Mr. Goodman has regularly counseled clients in the development and implementation of preventive labor and employee relations programs and has represented management with respect to union organizational drives and in...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...