On August 21, 2014, the National Labor Relations Board (NLRB) issued a decision that broadens the line to which potentially disloyal actions by employees will be treated as protected activity.  In MikLin Enterprises, Inc. dba Jimmy John’s and Industrial Workers of the World [pdf], the NLRB ruled that posters and press releases alleging that Jimmy John’s was providing contaminated sandwiches to the public as a result of their failure to provide paid sick leave was protected activity.  Consequently, the termination of six Jimmy John’s employees, as well as written warnings provided to three others, was found to be in violation of the National Labor Relations Act (NLRA).

Employees of ten Jimmy John’s shops in the Minneapolis-St. Paul, Minnesota area formed a union in 2011, partially as a result of several work practices that the employees believed needed to change.  One of the primary concerns was the lack of paid sick leave, which the employees alleged resulted in sick employees returning to work and, subsequently, handling food served to the public.  When management refused to meet with them, the union began putting posters on bulletin boards in the restaurants as well as in public places that included a picture of two sandwiches and said “Can’t Tell the Difference?  That’s too bad because Jimmy John’s workers don’t get paid sick days.  Shoot, we can’t even call in sick.  We hope your immune system is ready because you are about to take the sandwich test . . . Help Jimmy John’s workers win sick days.”

The employees also alleged that they were not allowed to simply call in sick, which meant that they had to ensure that someone could work for them.  Employees who were unable to find replacements and missed work were penalized.  This was based on a Jimmy John’s rule that stated “We do not allow people to simply call in sick!  NO EXCEPTIONS!”  Jimmy John’s eventually fired six employees and issued written warnings to three other employees for their participation in the poster campaign.

In reaching its decision, the NLRB determined that the employees’ actions that led to the discharges and warnings qualified as protected activity.  The employees argued they had engaged in protected activity under the “mutual aid or protection clause” in Section 7 of the NLRA and that they sought to “improve their lot as employees through channels outside the immediate employee-employer relationship.”  Jimmy John’s contended that the actions of the employees were disloyal and therefore unprotected.  The NLRB determined that neither the posters nor the press release were shown to be disloyal, reckless or maliciously untrue to the point where the employees would lose protection under the NLRA.  The posters were clearly connected to issues involved in the labor dispute, namely the provision of paid sick leave, and the primary message of the posters was to seek support for the employees’ position in the dispute.

The NLRB held that concerted activity that is otherwise proper does not lose its protected status because it is prejudicial to the employer.  Further, communications that raise highly sensitive issues such as public safety have been found to be protected when it is sufficiently linked to a legitimate labor dispute and not maliciously motivated to harm the employer.  There was no indication that the intent of the employees was to inflict harm on Jimmy John’s, even though they have anticipated that the posters may cause some patrons to stop visiting the restaurants.  The employees’ purpose was a sincere desire to improve their terms and conditions of employment by obtaining a more flexible attendance policy that included paid sick leave.  The posters did not allege that people were getting sick or that the sandwiches were actually contaminated but suggested the realistic potential for illness resulting from employees who came to work and handled food while they were sick.

This decision shows that the NLRB is continuing to cast a wide net as to the type of actions that will be found to be protected activity.  Employers should be cautious when disciplining employees for activities that could be viewed as related to a labor dispute.  Actions that may seem disloyal or malicious to the employer may not be viewed the same way by the NLRB.