Employees of a Jimmy Johns franchisee were not afforded the opportunity to have paid sick leave. A number of these employees coordinated with a local union attempting to recruit employees in a marketing campaign protesting lack of such benefits. The campaign included the staple of Jimmy Johns being a sandwhich on a poster to illustrate the theme of their protest. The eighth district federal court ruled that franchisee owner unlawfully solicited the removal of protected material from public places, removed union literature from an unrestricted employee bulletin board, and encouraged employees on Facebook to harass union supporters. The Court further stated it was unlawful to terminate and/or discipline employees for engaging in protected activity and that it was an unfair labor practice. Management had no policy setting out limitations of what could be placed on in store bulletin boards or that approval was necessary.
An employee created a community anti-union Facebook page promoting awareness and posts disparaging the organizing campaign and employees supporting the union. The National Labor Relations Board agreed with an administrative law judge that the posters and materials placed on bulletin boards was not disloyal, untrue, reckless or malicious as it pertained to an ongoing labor dispute. The employer violated Section 8(a)(1) by removing union literature from otherwise unrestricted employee bulletin boards.
The employer challenged four of the Board’s findings: (1) that the conduct of the employees who participated in the Sandwich Poster campaign was protected under the Act; (2) that soliciting and encouraging employees to remove Sandwich Posters from property not belonging to the employer violated the Act; (3) that the participation of supervisors and a co-owner in posting negative comments about a union supporter violated the Act; and (4) that removing union literature from an in-store bulletin board violated the Act.
The Eighth Circuit affirmed the findings of the NLRB in that the posters clearly pertained to a labor dispute properly and accurately characterizing the practical impact of the employer’s sick leave policy and did not accept the argument that this reached “a point where their methods of engaging in that activity [took] them outside the protection of the Act.” The Court of Appeals agreed with the board holding that the employer violated the Fair Labor Standards Act protecting the right to organize and recruit by having executives and managers post on Facebook messages harassing union supporters and instructing removal of posters from bulletin boards. The Sandwich Poster was a protected communication to the public and, accordingly, it found that the co-owner’s Facebook message violated Section 8(a)(1) because encouraging employees to take down the posters could be expected to chill employees’ exercise of their Section 7 rights. The employer argued that there was no evidence that the postings were linked to any particular protected activity of a union supporter. The Court affirmed the boards findings that there was substantial evidence linking the posts to a protected activity. The support of the union but the employee was well known and employees were asked to communicate their frustration with the employee.
The Court did not accept the argument that it had not selectively removed only union materials. The employer is not required to allow use of community bulletin boards. However, once it allowed employees to post materials on the bulletin board, it must have a neutral policy towards messages and materials. That is the employer cannot limit messages to only those not involving the union in any way. “The critical question is whether the employer is discriminating against union messages, or if it has a neutral policy of permitting only certain kinds of postings,” the court noted.
In one dissent, Judge Loken agreed with the lone board dissenter that the employer did not violate the NLRA by terminating employees involved in the “contaminated sandwhich” posters and its removal of such materials. These two agreed that they “clearly resorted to a means of protest so disloyal as to lose the Act’s protection.” Loken asserted that this issue turned on the proper interpretation of the Supreme Court’s controlling 1953 decision in NLRB v. Local Union No. 1229, IBEW (Jefferson Standard). By requiring proof that disloyal conduct be the product of a malicious motive, as narrowly defined, the Board fundamentally misinterpreted both Jefferson Standard and Eighth Circuit decisions construing and applying Jefferson Standard, argued Loken.
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