As our regular readers know, we’ve written a number of posts on cases where employers have found themselves in hot water for terminating employees based on Facebook activity.  In a recent case involving sandwich ship, Jimmy John’s, however, it was the employer’s Facebook activity that got them into trouble. 

Employees at Jimmy John’s were engaging in union organizing activity because they were unhappy that the company did not provide employees with paid sick leave.  They put up posters near Jimmy John’s restaurants showing two identical sub sandwiches side by side with text reading:

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 …

HELP JIMMY JOHN’S WORKERS WIN SICK DAYS

SUPPORT US ONLINE AT www.jimmyjohnsworkers.org

In response to the pro-union employees’ efforts, a rank and file employee started a Jimmy John’s Anti-Union Facebook page.  The page was public so anyone with a Facebook account could access it. 

A co-owner of Jimmy John’s posted on the page encouraging people to take the posters down. An assistant manager criticized one of the pro-union employees and posted his telephone number on the page and suggested that people text the employee to “let him know how they feel.”  Employees and the assistant manager then posted negative comments about the pro-union employee, making fun of his appearance and posting a picture showing the employee wearing a baseball cap with feces on it.  A manager posted her approval of the picture and suggested that they put copies of the picture up everywhere.

At some point, several of the pro-union employees were fired, others were disciplined, and they filed an unfair labor practices charge.  

It’s the National Labor Relations Board’s analysis of whether Jimmy John’s employees’ anti-Union Facebook comments were unlawful that makes this case interesting to us.  In fact, the Board only found one category of posts unlawful – those encouraging people to text the pro-Union employee to tell him “how they feel.”  The Board found that this was encouraging others to harass the employee for activities he engaged in which were protected.  

The rest of the anti-union Facebook posts were not unlawful because, as the Board noted, employers can engage in “a significant degree of vituperative speech in the heat of labor relations” without violating the National Labor Relations Act.  Where an employer will cross the line, however, is “if the disparagement conveys explicit or implicit threats, suggests that employees’ union activities are futile, or constitutes harassment that would reasonably interfere with employees’ Section 7 rights.” 

This is one the first examples we have seen of an employer’s Facebook conduct being brought to the forefront by the NLRB – and not the employee’s.  It will be interesting to see whether this will set a precedent for further evaluation of an employer’s response to union-organizing activity via Facebook.  As always, we will keep you posted.