8th Cir. Backs NLRB on Jimmy John's Protests

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By Lawrence E. Dubé

March 25 — A Jimmy John's franchisee illegally fired workers who publicly linked their complaints about sick leave to questions about restaurant food safety, the U.S. Court of Appeals for the Eighth Circuit ruled in a 2-1 decision.

The March 25 decision enforces a National Labor Relations Board order in favor of the workers. The opinion shows there is a continuing controversy about giving legal protection to employees who disseminate negative publicity about their employer's products.

MikLin Enterprises Inc. argued the employees had no legal right to make false claims that the company's policy on medical absences compromised the health of the workers who prepared customers' sandwiches. However, Judge Jane Kelly wrote for the court that exaggerated rhetoric is common in labor disputes and was protected during a publicity campaign by Minnesota restaurant workers. Judge Kermit E. Bye joined in the opinion.

Judge James B. Loken dissented in part, stating the employees lost the protection of the National Labor Relations Act by broadcasting a “scare message” about MikLin's food that was deliberately false, devastating to the employer and unnecessary for the advancement of the employees' cause.

Flier Linked Worker Leave, Health Risk

According to the decision and NLRB records, MikLin operated Jimmy John's sandwich shops in the Minneapolis-St. Paul area.

The Jimmy John's Workers Union, an Industrial Workers of the World affiliate, lost an October 2010 representation election but remained active among the employees and pressed MikLin to adopt workplace changes, including the introduction of paid sick days for employees.

The board said union supporters took the dispute public by posting in and near MikLin restaurants fliers that pictured identical sandwiches side-by-side above a message “Can't Tell the Difference?”

The flier labeled one sandwich as being made by a healthy worker and one by a sick worker. The flier asserted that workers didn't get paid sick days and couldn't even call in sick.

NLRB Found Discharges Unlawful

MikLin fired six employees for participating in the publicity campaign and the IWW filed an unfair labor practice charge.

An administrative law judge found the discharges violated Section 8(a)(3) of the NLRA, which prohibits discrimination due to union activity, and Section 8(a)(1), which forbids interference with employees' NLRA-protected activity .

The board affirmed in a 2-1 decision (361 N.L.R.B. No. 27, 200 LRRM 1604 (2014) ..

In the Eighth Circuit proceeding, MikLin argued the “sandwich” fliers were false because employees weren't precluded from calling in sick. However, Kelly observed a written company rule said, “We do not allow people to simply call in sick” and the company required employees to find their own replacements if they were ill.

The NLRB heard evidence that employees were told to report to work while sick, and Kelly said the board had sufficient evidence to conclude the employees' claims about MikLin's leave policy weren't intentionally false or maliciously motivated.

“There was sufficient evidence in the record tying the effort to obtain paid sick leave with the effect that the lack of paid sick leave could have on MikLin's product,” Kelly wrote.

Stating the board found employees did no more than suggest the “realistic potential” for illness, the court said it would defer to the NLRB's finding that the employees' communications “were not so disloyal as to lose protection under the Act” and it enforced the NLRB findings of unlawful discharges.

Dissent Sees Unprotected Attack on Employer

Dissenting from the court's ruling on the discharges, Loken cited the U.S. Supreme Court's decision in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464, 33 LRRM 2183 (1953), and argued the NLRA doesn't protect “calculated devastating attacks upon an employer's reputation and products.”

The “dramatic poster allegations of food contamination were not necessary to aid the employees' labor dispute,” Loken said. Stating “the employees punished MikLin by urging customers not to buy its sandwiches out of an unwarranted fear of becoming ill,” Loken concluded the employees' activity wasn't protected by the NLRA, and their discharges were lawful.

Michael A. Landrum of Landrum & Dobbins LLC in Edina, Minn., argued the appeal for MikLin Enterprises Inc. NLRB attorney Joel A. Heller in Washington argued for the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com