By Ronald Miller, J.D. A Jimmy John’s franchisee engaged in unfair labor practices by terminating or disciplining employees for engaging in a “Sandwich Poster” campaign that highlighted the fact the employer did not provide paid sick leave, and unlawfully solicited the removal of protected material from public places, removed union literature from an unrestricted employee bulletin board, and encouraged employees on Facebook to harass union supporters, ruled the Eighth Circuit, enforcing an NLRB order. The employer had no policy as to what could be placed on the in-store bulletin boards, and management approval was not required, making the employer’s selective removal of the flyers an unfair labor practice. Judge Loken dissented in part (MikLin Enterprises, Inc. dba Jimmy John’s v. NLRB, March 25, 2016, Kelly, J.). Since 2007, a union has been trying to organize the employees of the Jimmy John’s restaurants in Minneapolis. One of the issues highlighted by the organizing campaign was the lack of paid sick leave. Moreover, employees were required to find their own replacement if they were not going to be at work. After the union lost a representation election in October 2010, it filed objections to the conduct of the election. On January 11, 2011, the parties settled the objections in the election case, as well as separate unfair labor practice charges. Bulletin board postings. After the settlement, a union supporter posted copies of the unfair labor practice charge and a “Frequently Asked Questions” flyer about the election and settlement on a bulletin board used freely by employees. The employer had no policy limiting what employees could post on the board, but the store manager removed the postings each time they were posted. Later, employees placed Sandwich Posters, protesting the lack of paid sick leave, on community bulletin boards in several of the employer’s stores. Store managers removed those posters. On March 10, employees met with a company executive and co-owner and presented a letter requesting sick leave. They promised more posters if the employer did not meet with employees again by March 20 to discuss changing the sick leave policy. On the same date, the union issued a press release entitled, “Jimmy John’s Workers Blow the Whistle on Unhealthy Working Conditions.” The employer did not respond to the March 10 letter, so on March 20, union supporters placed posters on in-store community bulletin boards that included the executive’s phone number. Again, the employer removed the posters. On March 22, the employer fired six employees for “being the leaders and developers” of the Sandwich Poster campaign and issued written warnings to three other employees for being “foot soldiers” in the campaign. The discharge notice of two employees also cited the March 10 press release as a reason for their discharge. Facebook postings. Meanwhile, as early as October 17, 2010, an employee established a “Jimmy John’s Anti Union” Facebook group. Executives and store managers posted on the page, both during and after the organizing campaign. Many of the postings disparaged the organizing campaign and the employees who supported the union. Prior to March 20, 2011, a company executive posted a message on Facebook encouraging employees to take union posters down. Disloyalty. The NLRB agreed with an administrative law judge that the posters and the press release were sufficiently related to an ongoing labor dispute to be protected and that there was nothing in the posters or press release that was so disloyal, reckless, or maliciously untrue so as to cause the employees to lose the Act’s protection. Further, the Board unanimously agreed that the employer violated Section 8(a)(1) by removing union literature from otherwise unrestricted employee bulletin boards. Challenged findings. The employer challenged four of the Board’s findings: (1) that the conduct of the employees who participated in the Sandwich Poster campaign was protected under the Act; (2) that soliciting and encouraging employees to remove Sandwich Posters from property not belonging to the employer violated the Act; (3) that the participation of supervisors and a co-owner in posting negative comments about a union supporter violated the Act; and (4) that removing union literature from an in-store bulletin board violated the Act. Poster and press release. The employer did not challenge the Board’s findings that the poster and press release were made in the context of a labor dispute. However, it argued that these communications reached “a point where their methods of engaging in that activity [took] them outside the protection of the Act.” The Board majority determined that a statement on the poster accurately characterized the practical impact of the employer’s sick leave policy. The Eighth Circuit concluded there was substantial evidence in the record to support this finding. Further, the poster clearly stated that its purpose was to obtain paid sick leave. Thus, the Board reasonably found that the statement was not “made with either actual knowledge of [its] falsehood or with reckless disregard for [its] veracity.” Moreover, the Board majority held the statements were not so disloyal or recklessly disparaging as to lose protection under the Act. The appeals court determined that it could not say the Board erred in finding that the statements fell short of unprotected disloyalty and disparagement. Facebook plea. The Board majority also ruled that the employer acted unlawfully when one of its co-owners solicited employees to remove the publicly posted Sandwich Posters. Further, the Board unanimously agreed that the employer violated the Act when its supervisory employees harassed and solicited others to harass union supporters by means of Facebook postings and when managers removed union literature from workplace bulletin boards. Employers have a free speech right to communicate their views on unionization to employees. However, in this instance, the Board majority concluded that the Sandwich Poster was a protected communication to the public and, accordingly, it found that the co-owner’s Facebook message violated Section 8(a)(1) because encouraging employees to take down the posters could be expected to chill employees’ exercise of their Section 7 rights. The appeals court agreed. Facebook postings by supervisors. Here, the employer claimed postings by supervisors and assistant store managers on the anti-union Facebook page did not violate the Act because there was no evidence linking the postings to any particular protected activity of a union supporter. Moreover, it contended that the comments did not violate the Act because there was no pending election at the time they were posted, nor were the comments sufficiently scathing. However, the appeals court found that substantial evidence supported the Board’s findings that the postings were sufficiently linked to a union supporter’s protected activity. The employee’s support of the union was well known, and employees were encouraged to contact the employee and “tell him how they feel.” Further, all posts were made on the “Jimmy John’s Anti Union” Facebook page, along with other negative comments about the unionization effort. Removal of in-store posters. Finally, the employer contended that it was not a violation of the Act for store managers to take down union posters because they contained materially false statements. It conceded there was no evidence that the flyer disrupted workplace discipline or productivity. While an employer does not have to give unions or employees special access to bulletin boards, once an employer permits employees to use a bulletin board, it is a violation of Section 8(a)(1) of the Act to selectively prohibit union postings. “The critical question is whether the employer is discriminating against union messages, or if it has a neutral policy of permitting only certain kinds of postings,” the court noted. In this instance, the record showed that the employer had no policy as to what could be posted on the in-store bulletin boards, and management approval was not required. Thus, the employer’s selective removal of union flyers was an unfair labor practice. Partial dissent. In a partial dissent, Judge Loken agreed with the dissenting NLRB member that the employer did not violate the NLRA by removing “contaminated sandwich” posters in its stores and by discharging employees responsible for the postings. According to the dissent, because the employees were responsible for damaging disparagement, they “clearly resorted to a means of protest so disloyal as to lose the Act’s protection.” Loken asserted that this issue turned on the proper interpretation of the Supreme Court’s controlling 1953 decision in NLRB v. Local Union No. 1229, IBEW (Jefferson Standard). By requiring proof that disloyal conduct be the product of a malicious motive, as narrowly defined, the Board fundamentally misinterpreted both Jefferson Standard and Eighth Circuit decisions construing and applying Jefferson Standard, argued Loken.
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