In a decision entered last week, the Eighth Circuit Court of Appeals agreed that a Jimmy John's franchisee owner and operator violated the National Labor Relations Act (the "Act") when it, among other things: (1) fired some and disciplined other employees for posting misleading and potentially disparaging posters about the company's sandwiches and sick leave policy; and (2) created a public, anti-union Facebook page used by store employees and managers to post comments about a union and its organizers. See Miklin Enterprises Inc. v. NLRB, Nos. 14-3099, 14-3211 (8th Cir. March 25, 2016).
The union lost a representation hearing in 2010, and had filed objections to the conduct of the election and an unfair labor practice charge, both of which were settled in 2011. Around the time of the settlements, several employees placed posters featuring two identical, side-by-side photos of a sandwich on a community bulletin board in the public area of several of the franchisee's locations. Above one sandwich on the poster was the comment, "Your Sandwich Made by a Healthy Jimmy John's Workers," and above the other sandwich was the comment, "Your Sandwich Made by a Sick Jimmy John's Worker."
Below the photographs, in larger white letters, was the comment, "Can't Tell the Difference?" In smaller red letters was the comment, "That's Too Bad Because Jimmy John's Workers Don't Get Paid Sick Days. Shoot, We Can't Even Call in Sick." Below that comment, in even smaller white letters, was the comment, "We Hope Your Immune System is Ready Because You're About to Take the Sandwich Test." Finally, below that text was the comment, "Help Jimmy John's Workers Win Sick Days. Support Us Online At......" Managers removed the posters.
The employees met with the franchisee's co-owner and presented him with a letter from the union demanding a change to the sick leave policy, and when he did not respond to the letter, the union issued a press release stating, in part, that the sandwich makers were sick and tired of putting the health of their customers at risk.
Additionally, several employees posted the posters in various public places within two blocks of the franchisee's stores, and included the co-owner's phone number. The co-owner and others took down as many posters as they could find, and the franchisee fired several employees over the posters, and disciplined others.
In late 2010, a franchisee employee established a Jimmy John's Anti Union Facebook group, used by employees, managers, and one of the co-owners, and accessible to anyone with a Facebook account, to post comments about the organizing activities and the employees who supported the union. The co-owner posted a message encouraging anyone who saw the sandwich posters to take them down, and an Assistant Manager posted a union organizer's personal cell phone number with a suggestion to call him to express feelings about a union, along with the comment, "F*&# you David. Forever." A former employee posted an altered picture of a union supporter wearing union apparel and a ball cap labeled "Shithead" with feces on the bill, and encouraged others to repost it.
The union filed unfair labor practice charges claiming the franchisee violated the Act by terminating or disciplining employees for engaging in protected activity, and encouraging employees on Facebook to harass union supporters. The Board agreed that the franchisee committed most, but not all, of the violations, and the franchisee filed a petition for review.
The Court weighs in
In defense of its termination and disciplinary decisions, the franchisee argued that the sandwich poster statement about not being able to call in sick was false, and that the communication as a whole was disloyal and disparaging. The Court noted that employees have the right to self-organization, but concerted activity may lose its protected status if it is so detrimentally disloyal that it provides cause for an employer to discharge the employee. In this case, the sandwich posters were made in the context of a pending labor dispute, and although the poster comment about the inability to call in sick was factually incorrect, the Court agreed the comment was more like exaggerated rhetoric common in labor disputes, which is protected. As to the disloyalty and disparagement arguments, the Court agreed that the poster did not use language intended to degrade or humiliate, and only suggested the realistic potential for illness resulting from the handling of food by sick workers.
With respect to the allegations of Facebook harassment, the franchisee argued that none of the Facebook postings was unlawful because there was no evidence linking them to any particular protected activity, and there was no election pending at the time. The Court recognized that the Act contemplates a significant degree of vituperative speech in the heat of labor relations, but further noted that an employer's disparaging characterization of union supporters has been found unlawful when it has the coercive effect of holding employees' protected concerted activities up to ridicule and frustrating such activities.
Here, the Court found there was substantial evidence supporting the Board's finding that the postings were sufficiently linked to the union supporter's protected activity. Additionally, the combination of negative postings and the Assistant Manager's solicitation of negative comments from others could create fear of similar treatment for engaging in union activities. The Board flatly rejected the "no election pending" argument.
In short, this case underscores the fact that when it comes to judging the behavior of unions against employers, whether during or outside of an election, the scale often tips in favor of the union.