Tag Archives: concerted activity

Jimmy John’s Takes on Disloyal Employees and the NLRB and Wins

Doling out a refreshing victory, the U.S. Court of Appeals for the Eighth Circuit sided with Jimmy John’s in a protected, concerted activity case brought under the National Labor Relations Act (“NLRA”). On July 3, the full en banc court reversed an earlier decision of a three-member panel of the court that had affirmed a National Labor Relations Board (“NLRB”) ruling for the employees. Unless appealed to the Supreme Court, this decision brings to an end a torturous legal saga lasting over six years.

This case was set in motion in October 2010 when an Industrial Workers of the World (IWW)-affiliated union lost a union election to represent Jimmy John’s employees at ten franchised stores in the Minneapolis-St. Paul area, owned and operated by MikLin Enterprises. After the unsuccessful election, several union supporters continued to pressure the franchisee’s management to adopt workplace policy changes, including the adoption of paid sick leave. The disgruntled sandwich-makers claimed that current attendance policies forced them to work while sick.

The dispute escalated when six of these employees placed posters in and around the restaurants, calling attention to their claims. The posters featured two identical side-by-side pictures of a Jimmy John’s sandwich. One was labeled as being made by a “sick” employee and the other by a “healthy” employee. The caption below the picture read “Can’t tell the difference?” and was accompanied by a message criticizing the employer’s attendance policies. The employer terminated the six employees responsible for these posters.

The employees challenged their terminations claiming that the employer’s actions were in retaliation for concerted protected activity under the NLRA. Both the NLRB and the three-member panel of the Eighth Circuit agreed. However, the full panel of the Eighth Circuit ruled that the terminations were lawful. Specifically, it found that the claims about food safety were false and misleading and therefore, sufficiently “disloyal” to place the actions of the six employees outside of the protections of the NLRA.

The decision is heartening for employers, as many recent NLRB decisions have been overly protective of worker actions that were calculated to harm a company’s reputation.

John M. Hament
jhament@williamsparker.com
(941) 552-2555

The United States against the United States? A Government Flip-Flop That May Help Employers

On June 16, 2017, the U.S. Department of Justice did an about-face when it filed an amicus brief with the Supreme Court of the United States in an important labor arbitration case, NLRB v. Murphy Oil USA. The Murphy case presents the question of whether arbitration agreements can restrict employees from participating in class or collective actions. The brief filed by the Department of Justice argues that employers can impose such restrictions. See the full brief here.

Arbitration agreements have traditionally required employees to submit their claims to arbitration rather than through the court system. The trend over the last several years is for employers to include class action or collective proceeding waivers in such agreements. Such provisions are believed to reduce litigation costs associated with class and collective actions (which are on the rise). In response to this trend, the NLRB ruled that such waivers violate the NLRA when they are a condition of employment.

Several of the NLRB’s cases regarding such arbitration agreements have been appealed to the circuit courts, resulting in contradictory decisions on this issue. The Second, Fifth, and Eighth Circuits held that such arbitration agreements are enforceable, with the Seventh Circuit finding that these agreements violate the NLRA. There are similar challenges to agreements being made in other circuits, including the Eleventh Circuit. Based on the split of authority on this issue, the Supreme Court accepted review of the case argued before the Fifth Circuit Court of Appeals.

When the NLRB submitted its petition for writ of certiorari in Murphy, the Department of Justice supported the NLRB and its argument that the ability for an employee to engage in concerted activities is the “core substantive right” of the NLRA, and prohibiting class and collective actions infringe on that right. However, in its new brief, the Department of Justice argues that the NLRB failed to give adequate weight to the congressional policy of favoring arbitration agreements. This change of heart by the Department of Justice creates the potential for an unusual situation. Typically, when the Solicitor General’s office files an amicus brief, a lawyer for the government will present oral argument before the court on that side of the case. Given that the NLRB sits on the other side of the case, the upcoming oral arguments may consist of a lawyer for the United States arguing against a lawyer for a U.S. agency: the United States arguing against the United States.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Offensive Facebook Posts May Be Protected Speech

Human resources experts often recommend a detailed analysis before disciplining an employee for offensive statements. On April 21, 2017, the Second Circuit Court of Appeals highlighted this requirement and forced an employer to reinstate an employee who had been fired for posting highly offensive comments about his supervisor. Although this case, National Labor Relations Board v. Pier Sixty LLC, 2017 U.S. App. LEXIS 6974 (2d Cir. April 21, 2017), involved a union organizing campaign, such a dispute can arise outside the union context. It can arise in a breakroom conversation, a media interview, a picket sign, or a social media post. If the content involves protected speech, such as criticism of the terms and conditions of the employee’s employment, and especially if the speech purports to speak on behalf of or for the benefit of others, the speech may be protected, whether or not there is a union involved.

In Pier Sixty, the employee posted on Facebook that his supervisor is a “NASTY MOTHER F—ER” and “F—his mother and his entire f—ing family!!!”  The post criticized his supervisor’s communications style, saying, “…don’t know how to talk to people!!!!”  The post also included a pro-union statement, “Vote YES for the UNION!!!!!!”

The court weighed the protections (here, concerted activity) versus how abusive or “opprobrious” the comments were. The court reviewed the context of the statements, including that the employer was found to have permitted past vulgarity and to have engaged in other efforts to impede unionizing efforts. Commenting that these posts fall on the “outer bounds” of protected activity, the court declared the posts to be within the bounds of protected concerted activity and required the employer to bring the discharged employee back to work.

Employers should ensure that workplace rules are consistently enforced and that the reason for discharge does not involve and does not appear to involve a protected reason. Employers should be prepared to articulate and, if required, prove the lawful reason for discharge rather than relying on at-will status.

Kimberly Page Walker
kwalker@williamsparker.com
(941) 329-6628