Another Court Limits the Reach of Protected Concerted Activity

The full Eighth Circuit Court of Appeals just reversed an earlier three judge panel decision and the National Labor Relations Board on an important case for employers dealing with aggressive campaigns by their employees (and unions).

The facts are key here:  As part of a union organizing campaign, employees at Minneapolis area Jimmy John's sandwich shops posted notices telling customers that they were getting sandwiches made by sick employees, because the company was not providing paid sick leave.  With union support, the employees issued press releases stating that Jimmy John's employees reported to work with various contagious illnesses, including flu and strep throat, and that there were numerous health code violations at the Jimmy John's restaurants the union sought to organize.

All of this took place during the flu season.  I'm sure by coincidence.

The employer took about a month of this activity, actually met with the union leadership in an effort to stop it, and then fired six of the employees who were most responsible for coordinating the campaign, and issued written warnings to three others.

The NLRB predictably found the discipline to be illegal under 29 U.S.C. Sec. 157, because it interfered with communications with the public that were part of an on-going labor dispute. The Board determined that the postings and news releases were, specifically,  not "so disloyal, reckless, or maliciously untrue as to lose the Act’s protections."

After an Eighth Circuit panel of three judges affirmed the Board ruling, the entire Eighth Circuit reheard the case and overruled the panel.  The Court found that the Board, and the panel,"refuses to treat as “disloyal” any public communication intended to advance employees’ aims in a labor dispute, regardless of the manner in which, and the extent to which, it harms the employer (emphasis added)." The Court determined that this position was incompatible with Supreme Court precedent, and said, "Rather than employee motive, the critical question in the Jefferson Standard disloyalty inquiry is whether employee public communications reasonably targeted the employer’s labor practices, or indefensibly disparaged the quality of the employer’s product or services."

This is important guidance for employers in these cases where their work forces, usually aided by unions, attack the substance of the employer's business and customer relationships.  When such an attack is proceeding “in a manner reasonably calculated to harm the company’s reputation and reduce its income", then it goes too far.  Employers do not have to tolerate such efforts under this decision.  While only affecting cases in the Eighth Circuit's region (MN, IA, ND, SD, NE, MO, AR), the decision provides useful guidance in resisting these tactics for all courts.