Employees’ Disloyal Posters Exceeded Protected Right to Engage in Concerted Activities


The U.S. Court of Appeals for the 8th Circuit found that employees’ posters, which suggested that their employer’s sandwiches posed a health threat to customers, were so disloyal that they exceeded the employees’ right to engage in concerted activities under the National Labor Relations Act.

Facts of the Case:  In MikLin Enterprises dba Jimmy John’s v. NLRB, the union focused organizing efforts at the company’s 10 Jimmy John’s sandwich shops on a paid sick leave campaign among the employer’s workers. The union created a poster with two identical sandwiches, one purportedly made by a sick worker and one by a healthy worker. It stated:

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.

These posters, which also contained the Company owner’s personal telephone number, were distributed to more than 100 media outlets and subsequently plastered all over the city. Management removed the posters, but the Company owner was bombarded with calls from people who thought it was unsafe to eat at the stores. Six employees who coordinated the poster attack were fired, and three others received written warnings.

The National Labor Relations Board concluded that the Company had violated the NLRA, which “protects employee communications to the public that are part of and related to an ongoing labor dispute,” such as the media releases and posters. While communications may be “so disloyal, reckless, or maliciously untrue as to lose the Act’s protections,” the Board found that these communications did not rise to that level. A three-member panel of the 8th Circuit enforced the Board’s determination, but the Company was granted rehearing en banc, meaning a hearing by all the judges of the 8th Circuit.

The Court’s Decision. The en banc 8th Circuit turned to the Supreme Court decision, NLRB v. Local Union No. 1229, IBEW (Jefferson Standard), in which the Supreme Court stated that “[t]here is no more elemental cause for discharge of an employee than disloyalty to his employer.” The Supreme Court further made clear that communications are disloyal if they “mak[e] a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in an manner reasonably calculated to harm the company’s reputation and reduce its income.”

The 8th Circuit then rejected the Board’s position that communications are disloyal only if they are “maliciously motivated to harm the employer,” noting that the Jefferson Standard principle includes an objective component that focuses not on the employee’s purpose, but on the means used. The 8th Circuit also noted that the Board’s position seeks to protect any public communication intended to advance employees’ aims in a labor dispute, regardless of the manner and extent of any harm to the employer, contrary to the holding in Jefferson Standard. The 8th Circuit went on to state that the proper inquiry is “whether employee public communications reasonably targeted the employer’s labor practices, or indefensibly disparaged the quality of the employer’s product or services.”

In this case, the allegations of contaminated food were likely to have a “devastating impact” on the Company’s business. Moreover, the statement, “We can’t even call in sick” was actually “materially false and misleading,” as the Company complied with state Department of Health regulations requiring employees to call in sick if they experienced flu-like symptoms. Accordingly, the 8th Circuit found these communications so disloyal that they lost the protections of the NLRA.

Lessons Learned.  The good news for employers is that there are limits on what employees can communicate to the public during the course of a labor dispute.