NLRB, sick leave, unions

A U.S. appeals court just issued some news employers will find very disturbing: There are times when employers have to just stand by and watch their workers disparage their businesses. 

Grab a vomit bag. This could make you a little sick (pun intended).

What happened?

A group of workers employed by MikLin Enterprises Inc., the owners of 10 Jimmy John’s sandwich shops in the Minneapolis-St. Paul, MN, area, asked MikLin for sick leave benefits.

And when the employer declined, the employees hung posters in public near its 10 restaurants.

The poster depicted two identical sandwiches sitting next to each other.

Displayed over one were the words:

“Your sandwich made by a HEALTHY Jimmy John’s worker.”

And over the other:

“Your sandwich made by a SICK Jimmy John’s worker.”

Underneath the photos was:

“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 …”

The posters then asked members of the public to call the business owner (phone number included) and say they didn’t want sick workers making their sandwiches.

Naturally, MikLin wasn’t a fan of the posters, as they threatened to put a dent in its business. So it took them down and fired the employees responsible.

Soon after, a union that had been trying to organize the shops, filed charges with the NLRB.

The union claimed MikLin’s terminations of the employees, as well as a Facebook post about the posters by MikLin’s co-owner, violated employees’ right to be able to freely discuss working conditions under the National Labor Relations Act (NLRA).

Another pro-employee ruling

Based on the NLRB’s liberal interpretation of the NLRA — and many of the controversial pro-employee rulings it has made in recent years — it came as little surprise when an administrative law judge for the NLRB agreed with the union that MikLin’s actions violated the employees’ NLRA rights (read HR Morning’s breakdown of the judge’s ruling).

After the judge’s ruling, MikLin decided to take the issue to an appeals court — surely hoping for someone to look at its situation through less pro-union lenses.

But much to MikLin’s chagrin, the appeals court also ruled the employer illegally interfered with employees’ NLRA rights.

It upheld the NLRB judge’s decision, which required MikLin to reinstate the six terminated employees with back pay, and rescind all punishments and written warnings issued to the workers.

‘Exaggerated rhetoric’ OK

Here’s one of the more troubling things about the ruling. The court basically condoned the employees’ use of what it called “exaggerated rhetoric,” saying it’s common in labor disputes and protected under the NLRA.

The court said the posters weren’t so “reckless, or maliciously untrue so as to cause the employees to lose the Act’s protection.”

It also said because the intent behind the disloyal and publicly disparaging posters was not to degrade or humiliate the employer, but rather to seek public support for the employees’ efforts to gain better sick leave benefits, the posters were NLRA-protected.

Bottom line: As long as employees’ disparaging or disloyal remarks are connected to an attempt to change their working conditions, this court is saying they’re protected by the NLRA.

Trying to have it both ways?

As bad as that seems for employers, the news only got worse — as the appeals court also ruled that the Facebook comments MikLin’s co-owner made about the powers also violated employees’ NLRA rights.

While this didn’t add to MikLin’s responsibilities post-ruling, it’ll probably irk employers to see just how much their hands are being tied under the NLRA.

The appeals court acknowledged that just as employees have speech rights under the NLRA, so to do employers.

But the court’s ruling on the Facebook issue may make some question whether those rights are weighted equally.

Here’s the MikLin co-owner’s Facebook post that was challenged in court:

So I just got a text from our pal David Boehnke, he and the IWW [union] are threatening to put up thousands of posters that threaten our business and your jobs. They plan on doing this if we don’t meet with them which we will not do. I encourage anyone to take donw [sic] any posters that they may see around the twin cities. These posters are defamatory.

MikLin said this statement was protected by Section 8 of the NLRA, which states:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.

MikLin claimed that because the post contained “no threat of reprisal or force or promise of benefit” it was protected by Section 8.

But the court disagreed. It said:

The statement that the posters “threaten our business and your jobs” easily could be viewed as a threat of reprisal if employees did not take down the posters.

Bottom line: The sandwich posters were protected speech, while the employer’s Facebook post stating they were defamatory was not.

Cite: MikLin Enterprises Inc. v. NLRB

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