In a 2-1 decision, the 8th Circuit on March 25th in MikLin Enterprises, Inc., v. National Labor Relations Board enforced an NLRB Order finding that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for participating in a poster campaign designed to focus public attention on what they felt was the franchisee’s inadequate sick leave policy. As part of the campaign, the workers hung posters at their shops and then later elsewhere suggesting that customers would not be able to visually tell the difference between sandwiches made by sick and healthy Jimmy John workers.

Noting that its employees were not told they needed to come in to work when they were sick, the franchisee protested that the workers lost their protection under the NLRA because the posters did not accurately describe the franchisee’s sick leave policy. To the contrary, employees were required to wait 24 hours before symptoms disappeared before returning to work. The 8th Circuit majority disagreed, however, stating that the posters “accurately characterized the practical impact” of the policy.

Under established Board law – that phrase is probably an oxymoron at this point, isn’t it? – otherwise protected statements lose that protection if they are made with “reckless disregard of its truth or falsity.” As it relates to the posters, the Jimmy John’s franchisee argued that the posters’ statements that workers “can’t even call in sick” was knowingly false because they knew that they were required to wait for symptoms to subside before returning to work. On the other hand, the 8th Circuit noted that the record created at the ALJ hearing included evidence that employees worked 80% of the time they were sick because they could not obtain a replacement to work for them, could not afford to miss the day of work or both. Alternatively, the court also rejected the Jimmy John’s franchisee argument that the workers’ statements were unprotected because they were disloyal and publicly disparaged its product.

Take Aways:

This dispute arose in the context of a labor dispute arising out of the workers’ efforts to organize at least in part to obtain better sick leave benefits. As a result, the court (and the Board before it) gave the workers wider latitude that they might otherwise have gotten in maintaining the protected nature of their statements. Nevertheless, employers need to be careful before resorting to self-help in these types of situations. Clearly, the Board is taking a much more lenient view of what constitutes protected statements and activity under the NLRA and this decision is an example showing that the courts are according considerable deference to the Board’s conclusions regarding such statements. Because of the deference that Board decisions are due in the courts, employers should not expect the courts to overturn Board findings on protected activity unless those findings are clearly egregious.