MikLin Enterprises, Inc. v. NLRB

United States Court of Appeals for the Eighth Circuit · 2017 · Labor Law

Labor LawNLRASection 7 concerted activitySection 8(a)(1)Section 8(a)(3)employee disloyaltyproduct disparagementJefferson Standard

Facts

During an organizing campaign, MikLin employees affiliated with the IWW demanded paid sick leave and publicly distributed posters, press releases, and a letter suggesting that Jimmy John's sandwiches were being made by sick workers and posed a health risk to customers. The campaign urged the public to pressure MikLin and included statements such as 'SHOOT, WE CAN'T EVEN CALL IN SICK' and claims that health code violations occurred at MikLin stores nearly every day. MikLin discharged six employees who coordinated the campaign, warned three who assisted, and had also encouraged employees to remove the posters. Separate from the poster dispute, MikLin supervisors used Facebook to ridicule a union supporter, and MikLin removed union materials from employee bulletin boards while leaving its own explanation of Board proceedings posted.

Issue

Whether the employees' public sick-day poster campaign was protected concerted activity under Section 7 or unprotected disloyal product disparagement under Jefferson Standard, such that MikLin could lawfully discipline and discharge the employees and solicit removal of the posters. The court also considered whether MikLin separately violated Section 8(a)(1) by supervisors' Facebook ridicule of a union supporter and by removing union literature from in-store bulletin boards.

Rule

Even when employee communications are related to an ongoing labor dispute, Section 7 does not protect communications that constitute a sharp, public, disparaging attack upon the quality of the employer's product or its business policies in a manner reasonably calculated to harm the employer's reputation and reduce its income. The Jefferson Standard disloyalty inquiry has an objective component focused on the means used, not merely the employees' subjective motive, and protection is not preserved simply because the communications are connected to a labor dispute or were not maliciously motivated. By contrast, employer conduct violates Section 8(a)(1) when, viewed objectively, it reasonably tends to interfere with employees' exercise of Section 7 rights, including coercive ridicule of union supporters and selective removal of union materials from bulletin boards otherwise open to employee use.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Baristas at Lakefront Roasters, a fictional coffee chain in Milwaukee, are organizing for paid sick leave. They leaflet customers outside the shop with a flyer stating, "Support paid sick leave for workers—no one should be penalized for staying home when ill," and ask customers to email management, but they make no claim that the coffee or food is unsafe or defective.

If Lakefront Roasters fires the leafleters, which is the strongest assessment under the governing rule?

Explanation. The majority drew a distinction between public communications reasonably targeting labor practices and communications that indefensibly disparage the employer's product or services. A public appeal for support of paid sick leave, without accusing the product of being unsafe, is the sort of third-party communication that may remain protected. The key rule is that protection is lost when employees make a sharp, public, disparaging attack on product quality or business policies in a manner reasonably calculated to harm reputation and reduce income, not merely because they seek public support.