When are employee statements outrageous enough or so false that they lose their protection as concerted activity? It appears that the answer to that question is that they have to be well beyond technically true and made with malice. The 8th Circuit Court of Appeals ruled recently that an inference on posters created by Jimmy John’s workers that they are not allowed to call in sick and that customers might get sick from their sandwiches because they could be made by sick workers was not so misleading to result in workers losing their protections under the Labor Act.
The Industrial Workers of the World had been trying to organize workers of a 10 store Jimmy John franchise without success. One rallying point for the union was the lack of paid sick leave for the workers and the sick leave policy in general which stated the following:
Find your own replacement if you are not going to be at work. We do not allow people to simply call in sick! We require employees and mangers [sic] to find their own replacement! NO EXCEPTIONS.
The employer later revised the sick leave policy to include the following:
Absence due to sickness: With regard to absenteeism due to flu like symptoms, Team Members are not allowed to work unless and until those symptoms have subsided for 24 hours. Each day of sickness will count as a separate absence except that an absence of two or more consecutive days for the same illness will be counted as one “occurrence” when the Team Member supplies the Company with a medical certification that the Team Member has been seen by a doctor during the illness.
Even under the new policy, workers were not granted paid time off when sick and still had to find their own replacement. Tension continued to grow between the employer and union supporters. Employees created a poster campaign featuring two identical, side-by-side photographs of a sandwich on community bulletin boards in the public area of several of the employer’s stores and in the community near the employer’s stores. Above the left sandwich was a label stating “Your Sandwich Made By A Healthy Jimmy John's Worker.” Above the right sandwich was a label stating: “Your Sandwich Made By A Sick Jimmy John's Worker.” Below the photographs, in larger white letters, the poster stated: “Can't Tell the Difference?” In smaller red letters, the poster stated: “That's Too Bad Because Jimmy John's Workers Don't Get Paid Sick Days. Shoot, We Can't Even Call In Sick.” Below that, in even smaller white letters, the posters stated: “We Hope Your Immune System Is Ready Because You're About To Take the Sandwich Test ...” Below that, in white letters approximately the same size as the labels at the top of the posters, the posters asked readers to “Help Jimmy John's Workers Win Sick Days. Support Us Online At www.jimmyjohnsworkers.org.”
The employer responded by having managers remove the posters. One non-union supporter created a “Jimmy John’s Anti-Union” Facebook group, which among other things had a message from the franchise’s president, encouraging people to remove the posters if they saw them. A franchise manager posted on the page the cell phone number of one union supporter and encouraged people to call him to “let him know how you feel.” The employer also ultimately discharged or suspended the employees who created and posted the sandwich posters.
The union and employees filed an unfair labor practice charge against the employer claiming, among other things, that the employer violated their right to engage in protected, concerted activity. The employer responded that the workers lost that protection when it wrote on the posters the false and misleading statement “Shoot, We Can't Even Call In Sick” and inferred that workers would make customers sick because they had to report to work when ill.
The NLRB ruled in favor of the workers and the union and the employer appealed. The 8th Circuit upheld the NLRB decision, finding that the posters were part of a public acknowledgement of their fight for paid sick leave, a benefit of employment. Further it agreed with the NLRB that both the statement “Shoot We Can’t Even Call In Sick” and the inference that customers could get sick from eating their food were not entirely wrong since employees indeed could not call in sick without finding their replacement. The court also found that in fact at least two cases of norovirus had been traced back to the Jimmy John’s stores so that the inference about getting sick from eating there had some truth.
The court found the exaggerated rhetoric is common in labor disputes and protected under the Act. While the court reiterated that certain conduct would result in loss of protection as concerted activity, such was not the case here. Concerted activity may lose its protected status if it is so detrimentally disloyal that it provides cause for an employer to discharge the employee. Likewise, the court reiterated the NLRB’s two-part test to determine whether an employee's communication to a third party is “materially false and misleading” or is protected as follows: (1) whether “the communication indicated it is related to an ongoing labor dispute,” and (2) whether “the communication is not so disloyal, reckless or maliciously untrue as to lose the Act's protection.
See MikLin Enterprises, Inc. v. Nat'l Labor Relations Bd., No. 14-3099, 2016 WL 1169074 (8th Cir. Mar. 25, 2016).