Michael Starr is a Partner and Katherine Healy Marques is an Associate in Holland & Knight's New York office.
Section 7 of the National Labor Relations Act Guarantees All Workers the Right to Engage in "Concerted Activities for ... Mutual Aid or Protection".
HIGHLIGHTS:
- The NLRB's ruling in Miklin Enterprises, Inc. d/b/a Jimmy John's is based on section 7 of the National Labor Relations Act (NLRA), which guarantees all employees – whether unionized or not – the right to engage in "concerted activities for ... mutual aid or protection."
- If this NLRB decision is sustained on appeal, employers will be constrained in how they may respond to disloyal employee communications to customers denigrating their products or services when those communications are undertaken by a group of employees as a tactic to advance their demands for better pay and benefits.
The Jimmy John's sandwich franchise must have been surprised to learn that it had violated federal labor law when its disciplined employees who had posted hundreds of signs around its outlets suggesting that its sandwiches might be germ-infested for having been made by a sick employee. That, though, was the gist of the National Labor Relations Board's (NLRB or the "board") ruling in Miklin Enterprises, Inc. d/b/a Jimmy John's, 361 NLRB No. 27 (Aug. 21, 2014).
Employees Have the Right to Make Derogatory Public Statements
The legal basis for this seemingly bizarre decision is section 7 of the National Labor Relations Act (NLRA), which guarantees all employees – whether unionized or not – the right to engage in "concerted activities for ... mutual aid or protection." According to the NLRB's 2-to-1 decision in Jimmy John's, this right includes making widespread derogatory public statements about an employer's products or services provided only that the statements:
- have some connection to a dispute concerning wages, hours or working conditions
- have some element of truth
- are not intentionally malicious
While Jimmy John's had boxed itself into a corner by promulgating particularly heavy-handed personnel policies, this decision shows how far the current board will extend the scope of federal labor law to seemingly disreputable employee conduct and to all workplaces.
The case began when a group of Jimmy John's workers approached a company executive asking for paid sick leave. The workers argued that employees were effectively required to work when they were ill, since the company failed to provide paid sick leave and also had a policy of forbidding workers to call-in sick unless they had found a replacement for their shift. This kind of group request for better benefits for themselves and co-workers is, in labor law parlance, "concerted activities for ... mutual aid or protection." That brought these workers' dispute with management under federal labor law. It is clearly protected activity under federal labor law for groups of employees to publicize their dispute with management to the company's customers.
The NLRB Found "Sandwich Test" Posters Represented a Way to Build Public Support
The protesting employees adopted a particularly clever approach. They prepared "Sick Day posters" that presented side-by-side photos of identical Jimmy John's sandwiches: one labeled as having been prepared by a "healthy" worker and the other as having been made by a "sick" worker. The poster read:
When management learned that hundreds of the signs had been "plastered" in the neighborhood around outlet locations, it (unsurprisingly) removed them, posted a notice asking for managers and employees to remove the signs they found, fired six workers who it felt were most responsible and issued final written warnings to three others.
Workers' Section 7 Rights
The NLRB found that these actions infringed on the workers' section 7 rights. The decision rejected the employer argument that disseminating the posters were "so disloyal, reckless or maliciously untrue as to lose [NLRA] protection," which is the legal standard established 60 years ago by the Supreme Court in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953). The board found this precedent inapplicable because the posters at issue had some connection to the workers' dispute over the lack of paid sick leave and had some small element of truth insofar as the company's policy appeared to forbid workers from being absent due to illness unless they found their own replacement. Ignoring the poster's insinuation that Jimmy John's food might be germ-infested, the board reasoned that customers viewing the posters would "reasonably" understand that "the motive was to garner support for the campaign to improve the employee's terms and conditions of employment by obtaining paid sick leave rather than to disparage [Jimmy John's] or its product." As the board majority saw it, the blatant insinuation that you need a strong "immune system" to eat a restaurant's food is a legally protected way for restaurant workers to "garner [public] support" for better pay and benefits.
The NLRB did not stop there. It also found that a co-owner violated the labor law by posting a notice in his restaurant asking managers and employees to take down the offensive signs where they found them in the neighborhood. According to the board's analysis, because of the signs' protected status, the employer could neither induce employees to participate in their removal nor discipline those who created and disseminated the signs.
NLRB Decision, If Sustained, Will Limit Employer Disciplinary Authority for Disloyalty
The NLRB's majority decision brings under the ambit of federally protected worker rights the public disparagement of an employer's business or products making that a legitimate tactic that employees can use to advance their side of a labor dispute, as long as their comments are linked to that dispute. If this approach is sustained on appeal, employers will be constrained in how they may respond to disloyal employee communications to customers denigrating their products or services when those communications are undertaken by a group of employees as a tactic to advance their demands for better pay and benefits.
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