From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
A Jimmy John’s franchisee had the right to fire workers who used false and misleading claims about food safety to publicize a labor-management dispute, the U.S. Court of Appeals for the Eighth Circuit ruled July 3 ( MikLin Enters., Inc. v. NLRB , 2017 BL 229237, 8th Cir., No. 14-03099, 7/3/17 ).
The court disagreed with an earlier NLRB ruling and cautioned that the board was too protective of employee tactics that threatened serious harm to a company’s reputation.
The National Labor Relations Board said a leaflet suggesting a link between customer safety and franchisee MikLin Enterprises Inc.'s sick leave policies was legally protected, but eight appeals court judges agreed the message was sufficiently disloyal to take it outside the protection of the federal labor law. Two judges dissented.
The majority said the NLRB focused on the intentions of employees supporting an organizing campaign by the Industrial Workers of the World and didn’t adequately consider the “devastating” effects of making accusations that were false and “calculated.”
MikLin expressed satisfaction with the court ruling, saying in a statement “the attacks on its operation were made to hurt the Company, not simply to enlist the support of the public for a change in workplace policies.” A union representative was not immediately available for comment on the decision.
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. The union pressed MikLin to adopt workplace changes, including the introduction of paid sick days for employees.
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, asserting that workers didn’t get paid sick days and couldn’t even call in sick.
MikLin fired six employees for participating in the publicity campaign. The NLRB found the discharges violated the National Labor Relations Act, and a three-judge panel of the Eighth Circuit backed the board in a 2016 decision. However, the appeals court vacated the panel ruling and reheard the case en banc.
The NLRB “fundamentally misconstrued” the law by holding that no act of employee disparagement of an employer could be considered outside the protection of the NLRA unless it was “maliciously motivated to harm the employer,” Judge James B. Loken wrote for the majority.
The board also should have considered the impact of the publicity campaign and the inaccuracy of flier’s assertion that Jimmy John’s sandwich makers were unable to call in sick, the court said. The “Act does not protect such calculated, devastating attacks upon an employer’s reputation and products.”
Michael A. Landrum of Landrum Dobbins LLC in Edina, Minn., argued 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 email@example.com
Text of the opinion is available at http://www.bloomberglaw.com/public/document/MikLin_Enterprises_Inc_doing_business_as_Jimmy_Johns_Petitioner_v/1?doc_id=X178EIB5G000N0.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)