MikLin Enterprises, Inc. v. NLRB

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3099
___________________________
MikLin Enterprises, Inc., doing business as Jimmy John's
lllllllllllllllllllllPetitioner
v.
National Labor Relations Board
lllllllllllllllllllllRespondent
Industrial Workers of the World
lllllllllllllllllllllIntervenor
___________________________
No. 14-3211
___________________________
National Labor Relations Board
lllllllllllllllllllllPetitioner
v.
MikLin Enterprises, Inc., doing business as Jimmy John's
lllllllllllllllllllllRespondent
Industrial Workers of the World
lllllllllllllllllllllIntervenor
____________
National Labor Relations Board
____________
Submitted: June 11, 2015
Filed: March 25, 2016
____________
Before LOKEN, BYE, and KELLY, Circuit Judges.
____________
KELLY, Circuit Judge.
MikLin Enterprises, Inc., d/b/a/ Jimmy John’s (MikLin), petitions for review
of a National Labor Relations Board (Board) order holding MikLin engaged in unfair
labor practices. The Board found MikLin violated sections 8(a)(1) and (3) of the
National Labor Management Relations Act (Act),1 by terminating or disciplining
employees for engaging in protected concerted activity, and violated section 8(a)(1)
by soliciting the removal of protected material from public places, removing union
literature from an unrestricted employee bulletin board, and encouraging employees
on Facebook to harass union supporters. The Board cross-appeals for enforcement
of its order. We deny the petition for review and enforce the Board’s order.
I. Background
A. Facts
MikLin owns and operates ten Jimmy John’s franchises in Minneapolis and St.
Louis Park, Minnesota. The Industrial Workers of the World (IWW) has been trying
to organize employees at the ten stores since 2007. The unionization effort went
1
The Act is codified at 29 U.S.C. § 141 et seq. Sections 8(a) and (3) of the Act
are codified at 29 U.S.C. §§ 158(a)(1) and (3).
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public in September 2010. One of the issues highlighted in the organizing campaign
was MikLin’s lack of paid sick leave.
When hired, MikLin employees are given a copy of “Jimmy John’s Rules for
Employment.” Rule 11 states: “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!” On March
16, 2011, MikLin instituted a new attendance policy that established a disciplinary
point system for missing work. Employees were still required to find their own
replacements if they had to miss work.2 The new policy provided:
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.
After the IWW lost a representation election in October 2010, it filed
objections to the conduct of the election. The objections case was settled on January
11, 2011. The parties also settled an unfair labor practice case on January 11, 2011.
After the settlement, a union supporter posted copies of the unfair labor practice
2
Under the new policy, if an employee does not report to work but finds a
replacement, no points are assessed. One point is assessed if an employee calls in at
least one hour before their shift without finding a replacement; two points are
assessed if an employee calls in less than an hour before the start of the shift; and
three points are assessed for a no call/no show. Points are also assessed for tardiness.
Points accumulate on a rolling 12-month basis. An employee receives a disciplinary
coaching for 1 point, a recorded verbal warning after accumulating 2 points, a written
warning for 3 points, and is terminated after accumulating 4 points.
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charge and a “Frequently Asked Questions” (FAQ) flyer about the election and
settlement on a bulletin board used freely by employees and others at one of MikLin’s
stores. MikLin had no policy limiting what employees could post on the board. The
manager removed the postings each time they were posted.
In late January or early February 2011, employees David Boehnke, Brittany
Koppy, Davis Ritsema, and Max Specktor placed posters featuring two identical,
side-by-side photographs of a sandwich (Sandwich Posters) on community bulletin
boards in the public area of several of MikLin’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.” Managers removed the
posters.
On March 10, 2011, employees Ritsema, Specktor, Erick Forman, and Mike
Wilklow met with Rob Mulligan, co-owner and vice president of MikLin, to discuss
sick leave. They told Mulligan that MikLin employees were working while sick
because they could not find replacements or afford to take time off without pay, and
that having sick employees work jeopardized the Jimmy John’s image and risked
public safety. They presented Mulligan with a letter from IWW asking for paid sick
leave. The letter informed Mulligan that if he did not meet with the employees again
by March 20 to discuss changing MikLin’s sick-leave policy, employees would post
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the Sandwich Posters not just in stores but “in other place[s] where postings are
common, citywide.”
On March 10, the IWW issued a press release entitled, “Jimmy John’s Workers
Blow the Whistle on Unhealthy Working Conditions.” The press release stated,
“With Election Possibilities Ahead, Jimmy John’s Union Returns With Action On
Paid Sick Days” and attached a copy of the sandwich poster, a “10 Point Program for
Justice at Jimmy John’s,” and the letter the employees had presented to Mulligan that
same day. The first paragraph of the press release stated:
Sick of working sick, today the Jimmy John’s Workers Union blows the
whistle on unhealthy working conditions and demands a change in sick
leave policy. As flu season continues, the sandwich makers at this
10-store franchise are sick and tired of putting their health and the health
of their customers at risk.
MikLin did not respond to the employees’ March 10 letter. On March 20,
employees Boehnke, Specktor, Wilklow, Collins, Eddins, and Koppy posted the
Sandwich Posters in various public places within two blocks of each MikLin store.
The posters were the same as those previously posted on in-store community bulletin
boards, except these posters included Mulligan’s phone number. That evening,
Mulligan and others took down as many posters as they could find.
On March 22, MikLin fired Boehnke, Forman, Ritsema, Specktor, Wilklow,
and Micha Buckley-Farlee for “being the leaders and developers” of the Sandwich
Poster campaign, and issued final written warnings to Koppy, Isaiah Collins, and
Sean Eddins for being “foot soldiers” in the campaign. The discharge notices for
Ritsema and Buckley-Farlee also cited the March 10 press release as a reason for their
discharge.
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At least as early as October 17, 2010, a MikLin employee established a “Jimmy
John’s Anti Union” Facebook group, accessible to anyone with a Facebook account.
Rob Mulligan, store managers, assistant managers, area managers, and other
employees posted on the page, both during and after the organizing campaign. Many
of the postings disparaged the organizing activities and the employees who supported
the union, often using crude and profane language. Prior to the March 20, 2011,
posting of the Sandwich Poster, Rob Mulligan posted a message on Facebook
encouraging anyone who saw the Sandwich Posters around the Twin Cities to take
them down. Sometime in March 2011, Rene Nichols, the Assistant Manager at the
MikLin’s store where Boehnke worked, posted Boehnke’s personal cell phone
number and suggested Facebook members text Boehnke to “let him know how they
feel.” Below that, she added, “Fuck You David. Forever.”
B. Procedural History
After the MikLin employees were discharged and disciplined, IWW filed three
unfair labor practice charges. The Board’s Acting General Counsel issued a
consolidated complaint alleging MikLin committed unfair labor practices in violation
of Sections 8(a)(1) and (3) of the Act. Following a two-day evidentiary hearing, the
Administrative Law Judge (ALJ) issued a decision recommending that MikLin be
found to have committed most, but not all, of the violations alleged in the
consolidated complaint.
MikLin filed exceptions to the ALJ’s decision. On August 21, 2014, the Board
issued its Decision and Order affirming, as modified, the findings and recommended
order of the ALJ. The Board found, by a 2–1 vote, that MikLin violated Sections
8(a)(3) and (1) of the Act by discharging and issuing written final warnings to
employees because of their participation in the Sandwich Poster campaign, and
violated Section 8(a)(1) by soliciting employees to remove the Sandwich Posters
posted on non-MikLin property. The majority agreed with the ALJ that the posters
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and the press release were sufficiently related to an ongoing labor dispute to be
protected and that there was nothing in the posters or press release that was so
disloyal, reckless, or maliciously untrue so as to cause the employees to lose the Act’s
protection.
The dissent strongly disagreed, finding the statement in the poster, “Shoot. We
Can’t Even Call In Sick” to be empirically false. The dissent concluded that, because
the publishers of the posters knew the statement was false and published it anyway,
the employees’ distribution of the posters was maliciously motivated with the primary
intent to injure MikLin’s business reputation and income, rather than to redress the
employees’ sick leave grievance. The dissent found the employees had resorted to
a means of protest so disloyal that their actions lost the Act’s protection.
The Board unanimously agreed MikLin violated Section 8(a)(1) by removing
union literature from otherwise unrestricted employee bulletin boards. The Board
found certain of the statements soliciting and encouraging employees and managers
on Facebook to contact a pro-union employee about his protected activities violated
Section 8(a)(1).
MikLin filed a petition for review. The Board filed a cross-application for
enforcement. The IWW intervened on behalf of the Board.
II. Discussion
“[W]e afford great deference to the Board’s affirmation of the ALJ’s findings.”
NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 779 (8th Cir. 2013) (quotation
omitted). “We will enforce the Board’s order if it has correctly applied the law and
its factual findings are supported by substantial evidence on the record as a whole,
even if we might have reached a different decision had the matter been before us de
novo.” Id. at 779–80 (quotation omitted). “‘Substantial evidence’ is evidence that
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‘a reasonable mind might accept as adequate to support’ a finding.” NLRB v. Am.
Firestop Sols., Inc., 673 F.3d 766, 768 (8th Cir. 2012) (quoting Universal Camera
Corp. v. NLRB, 340 U.S. 474, 477 (1951)).
MikLin challenges four of the Board’s findings: (1) that the conduct of the
employees who participated in the Sandwich Poster campaign was protected under
the Act; (2) that soliciting and encouraging employees to remove Sandwich Posters
from property not belonging to MikLin violated the Act; (3) that the participation of
MikLin supervisors and a co-owner in posting negative comments about an employee
union supporter violated the Act; and (4) that removing union literature from an
in-store bulletin board violated the Act.
A. Discharge and Warning
Section 7 of the Act guarantees that “[e]mployees shall have the right to
self-organization, to form, join, or assist labor organizations . . . and to engage in
other concerted activities for the purpose of . . . mutual aid or protection.”
29 U.S.C. § 157. “[I]t is undisputed that if the employer fires an employee for having
engaged in union activities and has no other basis for the discharge, or if the reasons
that he proffers are pretextual, the employer commits an unfair labor practice.” St.
Luke’s Episcopal-Presbyterian Hosps., Inc. v. NLRB, 268 F.3d 575, 579 (8th Cir.
2001) (quoting NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 398 (1983), abrogated
on other grounds by Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v.
Greenwich Collieries, 512 U.S. 267, 277–78 (1994)). Employees do not lose
Section 7 protection simply by appealing to the public. Eastex, Inc. v. NLRB, 437
U.S. 556, 565 (1978).
Concerted activity may lose its protected status, however, if it is so
detrimentally disloyal that it provides cause for an employer to discharge the
employee. NLRB v. Local Union No. 1229, IBEW, 346 U.S. 464, 471–72 (1953).
-8-
Likewise, we have held that statements that are “materially false and misleading” are
not protected by the Act. St. Luke’s, 268 F.3d at 581. The Board has formulated its
own two-part test to determine whether an employee’s communication to a third party
is deemed protected: (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.” Mountain Shadows
Golf Resort, 330 N.L.R.B. 1238, 1240 (2000) (footnote omitted).
MikLin does not challenge the Board’s finding that the poster and press release
were made in the context of a labor dispute. See 29 U.S.C. § 152(9) (defining “labor
dispute” as “any controversy concerning terms, tenure or conditions of employment”).
We agree substantial evidence supports this finding. The poster informed the public
that “Jimmy John’s Workers Don’t Get Paid Sick Days” and asked the public to
contact MikLin’s owner to “Help Jimmy John’s Workers Win Sick Days.” The press
release also referenced MikLin’s sick-leave policy and the employees’ “demand for
paid sick days.”
MikLin argues that the employees’ speech lost its protection because the
communications reached “a point where their methods of engaging in that activity
[took] them outside the protection of the Act.” See St. Luke’s, 268 F.3d at 581
(quoting NLRB v. Red Top, Inc., 455 F.2d 721, 726 (8th Cir. 1972)). We have held
that a statement crosses the line when it is made with “reckless disregard of its truth
or falsity.” St. Luke’s, 268 F.3d at 580 (quoting Montefiore Hosp. & Med. Ctr. v.
NLRB, 621 F.2d 510, 517 (2d Cir. 1980)). MikLin contends the employees involved
in the campaign knew the statement in the poster, “Shoot, We Can’t Even Call In
Sick,” was false and that Minnesota Health Department regulations prohibited
employees from working with certain illnesses. Thus, MikLin contends, the
employees involved knew the overall message was materially false and misleading,
rendering the poster an unprotected communication.
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We begin our analysis with the recognition that “the task of maintaining the
national labor policy has been delegated to the Board, not the courts,” and that our
review is “very narrow and limited.” NLRB v. Honeywell, Inc., 722 F.2d 405, 407
(8th Cir. 1983); see also Local Union No. 1229, IBEW, 346 U.S. at 475 (recognizing
the heavy responsibility that falls on the Board to find the facts and apply legal
principles to those facts in a way consistent with the principles underlying the Act).
The Board majority found that none of the statements in the posters or the press
release were maliciously untrue—that is, “made with knowledge of their falsity or
with reckless disregard for their truth or falsity.” MikLin Enters., Inc., 361 N.L.R.B.
No. 27, at *3 (2014) (quoting MasTec Advanced Technologies, 357 N.L.R.B. No. 17,
at *5 (2011) (“Statements are maliciously untrue and unprotected, if they are made
with knowledge of their falsity or with reckless disregard for their truth or falsity.
The mere fact that statements are false, misleading or inaccurate is insufficient to
demonstrate that they are maliciously untrue.”) (internal quotation marks and citations
omitted)). The Board majority acknowledged that the statement, “[s]hoot, we can’t
even call in sick,” may not have presented MikLin’s entire sick leave policy, but
found that it accurately characterized the practical impact of the policy: that
employees were denied the ability to call in sick, either because they could not afford
it or because they could not find a replacement. The Board majority found sufficient
evidence in the record to support that impression, and accordingly found the
communications were not made with knowledge of their falsity or with reckless
disregard for the truth.3
3
MikLin argues the Board applied the wrong standard in finding the poster
protected because it “does not reflect the law in the 8th Circuit.” MikLin contends
we have adopted a standard for truthfulness that is less rigid than “maliciously
untrue.” MikLin asserts the standard we apply is whether the communications are
“materially false and misleading,” citing St. Luke’s, 268 F.3d at 580–81. Even if we
assume for purposes of analyzing Miklin’s argument that our standard is less
demanding than that applied by the Board, we nonetheless conclude the poster is
protected speech because it can be reasonably interpreted in a way that is not
materially false. “Where, as here, the evidence supports two reasonable inferences,
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We conclude there was substantial evidence in the record to support the Board
majority’s finding. First, Rule 11 of MikLin’s “Rules for Employment” states “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!” Although MikLin implemented a new attendance
policy four days prior to the posters being posted, the new policy also includes at least
a disciplinary coaching for an employee who calls in sick without a replacement. In
addition, employees testified without contradiction about being directed to work
while sick if they could not find coverage or face discipline, as well as actually
working while sick and observing other employees work while sick. The employees
who responded to an IWW survey about sick leave reported working nearly eighty
percent of the time that they were sick because they could not find coverage, could
not afford to lose a day’s pay, or both.
Finally, the poster clearly states that its purpose is to obtain paid sick leave.
We think this puts the statement, “Shoot, we can’t even call in sick,” in context.
Exaggerated rhetoric is common in labor disputes and protected under the Act. See
Old Dominion Branch No. 496, Nat’l Assoc. of Letter Carriers v. Austin, 418 U.S.
264, 286 (1974); see also Local No. 1229, IBEW, 346 U.S. 464, 476–77 (1953)
(criticizing the failure of the employees to disclose the ongoing labor dispute behind
the handbills and recognizing that disclosure of the employees’ motive “might have
lost more public support for the employees than it would have gained”); Sierra Pub.
Co. v. NLRB, 889 F.2d 210, 217 (9th Cir. 1989) (“[T]hird parties who receive appeals
for support in a labor dispute will filter the information critically so long as they are
aware it is generated out of that context.”). Constrained as we are “by the applicable
standard of review from substituting our own judgment for that of the Board,” NLRB
we may not preempt the Board’s choice between two fairly conflicting views of that
evidence.” JCR Hotel, Inc. v. NLRB, 342 F.3d 837, 842 (8th Cir. 2003) (internal
quotation omitted).
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v. Greyhound Lines, Inc., 660 F.2d 354, 358 (8th Cir. 1981), we conclude the Board
reasonably found that the statement, “Shoot, we can’t even call in sick,” was not
“made with either actual knowledge of [its] falsehood or with reckless disregard for
[its] veracity.” RELCO Locomotives, 734 F.3d at 791.
In the alternative, MikLin asserts the method the employees used crossed the
line into unprotected disloyalty and public disparagement of its product. MikLin
argues the campaign was maliciously motivated by an intent to injure MikLin’s
business reputation and income, rather than to enlist the support of the public for
IWW’s demand for paid sick leave. MikLin claims the statement, “We hope your
immune system is ready because you’re about to take the sandwich test,” only can be
read to mean that consumers are at risk by eating its sandwiches, greatly exaggerating
the potential public health problem. Finally, MikLin urges us to conclude that the
fact the posters do not distinguish Jimmy John’s, the franchiser, from MikLin, a
franchisee, further supports the conclusion that the employees were maliciously
motived.
The Board majority held the statements were not so disloyal or recklessly
disparaging as to lose protection under the Act. Whether we “might have made
different findings upon an independent consideration of the same evidence,” we
recognize “[i]t is not the function of this Court to try the case de novo or to substitute
its own appraisal of the evidence for that of the Board.” Greyhound Lines, Inc., 660
F.2d at 356 (quoting NLRB v. Brown & Root, Inc., 311 F.2d 447, 451 (8th Cir.
1963)). “It is widely recognized that not all employee activity that prejudices the
employer, and which could thus be characterized as disloyal, is denied protection
under the Act.” Five Star Transp., Inc. v. NLRB, 522 F.3d 46, 53 (1st Cir. 2008).
Concerted employee activity loses protection when it reaches “a point where their
methods of engaging in that activity [took] them outside the protection of the Act.”
See St. Luke’s, 268 F.3d at 581 (quoting NLRB v. Red Top, Inc. 455 F.2d 721, 726
(8th Cir. 1972)); see also NLRB v. Wash. Aluminum Co., 370 U.S. 9, 17 (1962)
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(interpreting the denial of Section 7 protection to employees in Local No. 1229,
IBEW to be based on “a disloyalty to the workers’ employer which this Court deemed
unnecessary to carry on the workers’ legitimate concerted activities”).
We cannot say the Board majority erred in finding that the statements fell short
of unprotected disloyalty and disparagement. The Sandwich Poster campaign was
directly tied to the dispute over sick leave and solicited public support for the
employees’ campaign. There was substantial evidence in the record tying the effort
to obtain paid sick leave with the effect that the lack of paid sick leave could have on
MikLin’s product. For example, there was uncontroverted testimony that MikLin
employees worked while sick. The posters and the press release also did not use
language intended to degrade or humiliate. Cf. NMC Finishing v. NLRB, 101 F.3d
528, 531 (8th Cir. 1996) (acknowledging that obscenity, “especially obscenity
designed to ‘degrade and humiliate’” may not be protected under the Act). The
posters identified MikLin and were all posted within a two-block radius of MikLin
stores.4
Finally, MikLin sandwiches were in fact cited on two separate occasions as the
source of a public norovirus outbreak. The Board dissent asserts the posters “greatly
exaggerated the potential public health problem” and conveyed the message that
“customers are getting sick and will continue to get sick.” We acknowledge that is
one way the poster could be viewed. We think it just as likely the poster would be
4
We find unpersuasive MikLin’s suggestion that the poster and press release
lost protection by including the name of franchiser Jimmy John’s. The posters
targeted MikLin by asking the public to contact Rob Mulligan, the co-owner of
MikLin, and were posted near MikLin stores. The press release likewise identified
the Mulligans and their “10-store franchise.” Furthermore, MikLin does business as
Jimmy John’s, and is known to the public by that name, MikLin follows Jimmy
John’s suggested sick-leave policy in Rule for Employment 11, and the notices of
termination issued to the employees when they were fired were on Jimmy John’s
forms.
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viewed in the manner the Board majority found: that the posters only “suggest the
realistic potential for illness resulting from the handling of food by workers who
come to work while sick.” See MikLin Enters., Inc., 361 N.L.R.B. No. 27, at *8.
“We may not displace the Board’s choice between two fairly conflicting views, even
if we would justifiably have made a different choice had the matter been before us de
novo.” See Midwest Precision Heating & Cooling, Inc., 408 F.3d at 458 (quotation
and alteration omitted). Accordingly, we defer to the Board majority’s finding that
the Sandwich Poster campaign communications were not so disloyal as to lose
protection under the Act.
B. Interference with Exercise of Rights
As a general rule, an employer violates Section 8(a)(1) of the Act by engaging
in conduct that “reasonably tends to interfere with the employees’ exercise of their
Section 7 rights.” Mississippi Transp., Inc. v. NLRB, 33 F.3d 972, 977–78 (8th Cir.
1994) (internal quotation and alteration omitted). In this case, the Board majority
ruled MikLin violated the Act when one of the co-owners solicited employees to
remove the publicly-posted Sandwich Posters.5 The Board unanimously agreed that
MikLin violated the Act when its supervisory employees harassed and solicited others
to harass union supporters by means of Facebook postings and managers removed
union literature from workplace bulletin boards.
i. Mulligan’s Facebook Postings
MikLin concedes co-owner Robert Mulligan’s March 20, 2011, posting on the
“Jimmy John’s Anti-Union” Facebook page encouraged and solicited employees to
take down the Sandwich Posters. MikLin asserts this did not violate the Act because
5
The dissent did not believe MikLin’s encouragement of employees to remove
the Sandwich Posters from public places violated the Act.
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these comments were an expression of opinion protected by Section 8(c) of the Act6
and contained no threat of reprisal or force or promise of benefit.7 Specifically,
Mulligan’s posting read:
So I just got a text from our pal David Boehnke, he and the IWW are
threatening to put up thousands of posters that threaten our business and
your jobs. They plan on doing this if we don’t meet with them which we
will not do. I encourage anyone to take donw [sic] any posters that they
may see around the twin cities. These posters are defamatory.
“It is well established that employers have a free speech right to communicate
their views on unionization to employees and that this right cannot be infringed by
a union or the Board.” NLRB v. Intertherm, Inc., 596 F.2d 267, 277 (8th Cir. 1979)
(citing NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1979)). But an employer
who goes beyond expressing opposition to a union to predicting the negative effects
unionization may have on its business, employees, and their incomes or work
opportunities risks violating the Act. Id. In determining whether an employer’s
challenged statement is protected under Section 8(c), “we look to the context of its
particular labor relations setting and balance the employer’s right of expression
against the equal right of employees to associate freely with a collective bargaining
6
Section 8(c) provides:
The expressing of any views, argument, or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual form, shall not
constitute or be evidence of an unfair labor practice under any of the
provisions of this subchapter, if such expression contains no threat of
reprisal or force or promise of benefit.
29 U.S.C.A. § 158(c).
7
MikLin also claims that, because the posters were not protected speech,
encouraging others to tear them down was not unlawful. Because we find the posters
were protected speech, we disagree.
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setting.” Id. This balancing takes into account “the economic dependence of the
employees on their employers, and the necessary tendency of the former, because of
[their] relationship, to pick up intended implications of the latter that might be more
readily dismissed by a more disinterested ear.” Id. (quoting Gissel Packing Co., 395
U.S. at 617).
The Board long has held that a high-level supervisor’s conduct in directing
others to remove protected signs interferes with employees’ exercise of Section 7
rights. See Williamson Piggly Wiggly, Inc., 280 N.L.R.B. 1160, 1163 (1986),
enforced, 827 F.2d 1098 (6th Cir. 1987) (store manager’s conduct in driving
employee through town to tear down protected union campaign signs from public
places found to violate Act); Muncy Corp., 211 N.L.R.B. 263, 272 (1974), enforced,
519 F.2d 169 (6th Cir. 1975) (owner’s conduct in tearing down protected union picket
signs from utility poles found to be an unfair labor practice). Here, the Board
majority concluded that the Sandwich Poster was a protected communication to the
public and accordingly found that Mulligan’s Facebook message violated Section
8(a)(1) because encouraging employees to take down the posters could be expected
to chill employees’ exercise of their Section 7 rights.
MikLin argues that Mulligan’s posting was an expression of opinion protected
by Section 8(c) because it contained “no threat of reprisal or force or promise of
benefit.” 29 U.S.C. § 158(c). Mulligan’s posting was on a Facebook page that was
open to the public, including other MikLin rank and file employees. Mulligan’s
encouragement to employees to take down the posters was not an expression of a
“view[], argument, or opinion.” See RELCO Locomotives, 734 F.3d at 781. The
statement that the posters “threaten our business and your jobs” easily could be
viewed as a threat of reprisal if employees did not take down the posters. We cannot
say that the Board erred in finding that such a posting by a MikLin co-owner
reasonably interfered with employees’ exercise of their Section 7 rights.
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ii. Facebook Postings by Supervisors
MikLin claims postings by supervisors and assistant managers on the
anti-union Facebook page did not violate the Act because there was no evidence
linking the postings to any particular protected activity of Boehnke. In addition,
MikLin contends the comments did not violate the Act because there was no pending
election at the time the comments were posted and some of the comments were posted
after Boehnke was fired. MikLin further insists the comments were not unlawful
because they were not sufficiently scathing and they were not made in person, in front
of other employees. MikLin characterizes the statements as simply a reflection of the
supervisors’ personal dislike for Boehnke and as unconnected to his union activity.
Rene Nichols, the Assistant Manager at a store where Boehnke worked, posted
Boehnke’s personal cell phone number and encouraged other employees to text him
and tell him what they thought, followed by the comment, “Fuck you David!
Forever.” A former employee posted an altered picture of Boehnke wearing union
apparel and a ball cap labeled “Shithead” with feces on the bill.8 Supervisors Eddie
Guerrero and Melissa Erickson encouraged employees to re-post the picture of
Boehnke “everywhere.”
“It is well settled that the Act countenances a significant degree of vituperative
speech in the heat of labor relations.” Trailmobile Trailer, LLC, 343 N.L.R.B. 95, 95
(2004). “Words of disparagement alone concerning a union or its officials are
insufficient for finding a violation of Section 8(a)(1).” Sears, Roebuck & Co., 305
N.L.R.B. 193, 193 (1991). Whether a violation occurs depends on the context of the
statements. See id.
8
The former employee, Ben McCarthy, had been fired several months earlier
for actually putting feces in Boehnke’s coat pocket.
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The Board has found that an employer violates Section 8(a)(1) by “denouncing
and humiliating [a union supporter] in the presence of another employee” or by
“harassing him and threatening his physical safety . . . because of his support for the
Union.” Dayton Hudson Corp., 316 N.L.R.B. 477, 483 (1995). Likewise, an
employer’s “disparaging characterization” of union supporters has been found
unlawful when it “has the coercive effect of holding employees’ protected concerted
activities up to ridicule and frustrating such activities.” Rankin & Rankin, Inc., 330
N.L.R.B. 1026, 1037 (2000). The Board has so ruled because such conduct may
“make the employees believe that their . . . loyalty to the Union [is] not worth the
effort in the face of such degradation,” thus having “the tendency of discouraging
[them] from engaging in activities protected by Section 7 of the Act.” Domsey
Trading Co., 310 N.L.R.B. 777, 793 (1993), enforced, 16 F.3d 517 (2d Cir. 1994).
We likewise have concluded that directing offensive words specifically to a
singled-out employee is unprotected conduct because an objective, reasonable
employee would tend to feel coerced, intimidated and harassed. See NMC Finishing
v. NLRB, 101 F.3d 528, 532 (8th Cir. 1996) (finding such conduct unprotected in
context of striking employees’ derision of non-striking employee); see also NLRB v.
Trumbull Asphalt Co. of Del., 327 F.2d 841, 844–45 (8th Cir. 1964). Furthermore,
“[t]here is much authority for the proposition that a supervisor commits an unfair
labor practice by ratifying the illicit threats of another.” Intertherm, Inc., 596 F.2d at
272.
Substantial evidence supports the Board’s finding that the postings were
sufficiently linked to Boehnke’s protected activity. It was well known that Boehnke
was an IWW supporter. Nichols solicited the group to contact Boehnke and “tell him
how they feel” shortly after Mulligan notified the Facebook group about the text
message he had received from Boehnke regarding the Sandwich Poster campaign.
The doctored photograph depicted Boehnke wearing a union button and contained the
IWW’s logo of three cats wearing aprons. Finally, all the posts were made on the
“Jimmy John’s Anti Union” Facebook page and there were many other negative
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comments about the unionization effort, union supporters, and the Sandwich Poster
campaign noted on the Facebook page. Other MikLin employees who witnessed
management’s reaction to Boehnke’s protected activity could reasonably fear similar
treatment for engaging in such activity and would be discouraged from exercising
their Section 7 rights. We find unpersuasive Miklin’s argument that the supervisors’
comments did not violate the Act because there was no election pending. The Act
protects the exercise of Section 7 rights from interference in a broad range of
contexts, including this one, and not just during representation campaigns. See, e.g.,
NLRB v. Washington Aluminum Co., 370 U.S. 9, 14–15 (unrepresented employees
have Section 7 rights).
iii. Removal of In-Store Posters
After the January 11, 2011, settlement, a MikLin employee posted copies of the
settled unfair-labor-practice charge and an FAQ flyer on an in-store community
bulletin board in one of MikLin’s stores. MikLin asserts it was not a violation of the
Act for a manager to take down the postings because the statements in the FAQ were
materially false statements that were intended to undermine the authority of
management. While conceding there was no evidence that the flyer disrupted
workplace discipline or productivity, MikLin nonetheless contends it had the right to
remove the postings because there was a potential for negative consequences. The
Board found this activity to be a violation of Section 8(a)(1) of the Act.
An employer has the right to prohibit union literature upon a showing that the
ban is necessary to maintain plant discipline or productivity. Am. Cast Iron Pipe Co.
v. NLRB, 600 F.2d 132, 135–36 (8th Cir. 1979) (citing Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 803 n.10 (1945)). While an employer does not have to give
unions or employees special access to bulletin boards, once an employer permits
employees to use a bulletin board, it is a violation of Section 8(a)(1) of the Act to
selectively prohibit union postings. Id. “The critical question is whether the
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employer is discriminating against union messages, or if it has a neutral policy of
permitting only certain kinds of postings.” HealthBridge Mgmt., LLC v. NLRB, 798
F.3d 1059, 1073 (D.C. Cir. 2015) (quoting Loparex LLC v. NLRB, 591 F.3d 540, 545
(7th Cir. 2009)).
The record shows that MikLin had no policy as to what could be posted on the
in-store bulletin boards, and management approval was not required. In practice,
employees posted a variety of material on the boards, including union campaign
literature as well as non-union related activity such as notices about parties or
concerts. Under these circumstances, we agree with the Board that MikLin’s
selective removal of the flyer and the charge was an unfair labor practice.
III. Conclusion
We conclude the Board’s decisions were supported by substantial evidence.
We therefore grant the Board’s application for enforcement and deny MikLin’s
petition for review.
LOKEN, Circuit Judge, dissenting in part.
I respectfully dissent from Parts II.A and II.B.i of the court’s opinion. I agree
with the dissenting Board member that MikLin did not violate the National Labor
Relations Act (“the Act”) by removing “contaminated-sandwich” posters publicly
displayed near its stores and by discharging employees responsible for this damaging
disparagement because they “clearly resorted to a means of protest so disloyal as to
lose the Act’s protection.” MikLin Enters., Inc., 361 N.L.R.B. No. 27, at *12 (2014)
(Johnson, M., dissenting in part).
A. The Board held that MikLin violated Sections 8(a)(1) and (3) of the Act
when it discharged six employees “for their participation in the [contaminated-
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sandwich] poster campaign.” Id. at *2. The Board ordered the employees reinstated
with back pay. Section 10(c) provides that the Board may not require reinstatement
or order back pay for an employee who has been discharged “for cause.” 29 U.S.C.
§ 160(c). Section § 10(c) “cannot mean that an employer is at liberty to punish a man
by discharging him for engaging in concerted activities which § 7 of the Act
protects.” NLRB v. Wash. Aluminum Co., 370 U.S. 9, 17 (1962). Thus, the critical
issue is whether publishing the contaminated-sandwich posters near MikLin’s
“Jimmy John’s” sandwich shops was concerted activity protected by § 7. This issue
turns on proper interpretation of the Supreme Court’s controlling decision in NLRB
v. Local Union No. 1229, IBEW, 346 U.S. 464, 472 (1953) (Jefferson Standard).
In Jefferson Standard, the Court considered whether a radio station violated
§ 8(a)(1) when it fired technician employees because -
at a critical time in the initiation of the company’s television service,
they sponsored or distributed 5,000 handbills making a sharp, public,
disparaging attack upon the quality of the company’s product and its
business policies, in a manner reasonably calculated to harm the
company’s reputation and reduce its income.
346 U.S. at 471. The Board held that the employer had “cause” to discharge within
the meaning of § 10(c), finding that the employees “deliberately undertook to alienate
their employer’s customers by impugning the technical quality of his product.” Id.
The Supreme Court upheld this decision. “There is no more elemental cause for
discharge of an employee than disloyalty to his employer,” the Court explained. Id.
at 472. Absent a labor controversy, the technicians’ conduct “unquestionably would
have provided adequate cause for their disciplinary discharge within the meaning of
§ 10(c).” Id. at 476. The “coexistence of a labor dispute” afforded them no defense:
Even if the attack were to be treated, as the Board has not treated it, as
a concerted activity wholly or partly within the scope of those
mentioned in § 7, the means used by the technicians in conducting the
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attack have deprived the attackers of the protection of that section, when
read in the light and context of the purpose of the Act. Id. at 476-78.
Here, distributing the contaminated-sandwich posters was part of a labor
controversy, namely, the employees’ concerted activity to unionize and to obtain
better working conditions, including sick pay. The Board majority recognized that,
under Jefferson Standard, the employee communications could nonetheless be “so
disloyal” as to be unprotected. But, noting that “Board law has developed
considerably in its approach to the question of employee disloyalty,” 361 N.L.R.B.
No. 27, at *5 n.18, the Board applied a restrictive standard that effectively gutted the
Supreme Court’s governing disloyalty principle:
To lose the Act’s protection as an act of disloyalty, an employee’s public
criticism of an employer must evidence a malicious motive. (Id. at *4,
quotation omitted.)
Even communications that raise highly sensitive issues such as public
safety have been found protected where they are sufficiently linked to
a legitimate labor dispute and are not maliciously motivated to harm the
employer. (Id. at *4-5.)
Here, where . . . the posters’ message was closely tied to the employees’
interest in obtaining sick days, the labor dispute is made clear in the
posters, and the posters were not shown to be maliciously untrue, the
posters are protected. (Id. at *5 n.18.)
In a significantly different labor law context, the Board has long held that a
defamatory false statement made during a labor dispute does not lose § 7 protection
unless made with “actual malice.” See Jolliff v. NLRB, 513 F.3d 600, 610 (6th Cir.
2008). In this defamation context, the Board defines malice “as a shorthand
expression of the ‘knowledge of falsity or reckless disregard of the truth’ standard,”
not “malice in the common-law sense -- as ‘hatred, personal spite, ill will, or desire
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to injure.’” Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 281 (1974)
(emphasis added). By adopting this narrow definition of malice as an element of the
Jefferson Standard inquiry, the Board effectively removed from the inquiry the central
§ 10(c) issue as defined by the Supreme Court -- disloyalty.
In Jefferson Standard, the Court explained that the disparaging statements lost
the Act’s protection due to “the means used by the technicians.” 346 U.S. at 477-78.
The Court described the disloyal statements as “a sharp, public, disparaging attack . . .
reasonably calculated to harm the company’s reputation and reduce its income,” and
as a deliberate effort to alienate their employer’s customers by impugning the
technical quality of its product. Id. at 471. The Court never mentioned malice, a term
that has different meanings in different legal contexts. But its characterization of the
employees’ intent was an obvious reference to malice in the common law sense,
which includes desire to injure.
Our prior cases confirm that an employee’s disloyal statements can lose § 7
protection without a showing of actual malice as the Board has defined it. In NLRB
v. Red Top, Inc., we held that a threat by employees to divulge damaging information
was unprotected because it was “an act of disloyalty to the employer’s business
interests.” 455 F.2d 721, 727 (8th Cir. 1972). And in St. Luke’s Episcopal-
Presbyterian Hospitals, Inc. v. NLRB, we expressly rejected the contention that public
disparagement of an employer “was protected activity unless maliciously false.” 268
F.3d 575, 579 (8th Cir. 2001). In St. Luke’s, a hospital discharged a nurse who went
on local television and accused her employer of “jeopardizing the health of mothers
and babies” by altering shift assignments and responsibilities. Id. at 577. We
explained that cases interpreting Jefferson Standard “establish that an employee
exceeds the boundaries of protected activity when she falsely and publicly disparages
her employer or its products and services.” Id. at 580. In reversing the Board, we
concluded that the nurse was not wrongfully discharged “because her false and
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disparaging public statement alienated her from her most important coworkers and
made her continued employment untenable.” Id. at 582.
By requiring proof that disloyal conduct be the product of a malicious motive,
as narrowly defined, the Board fundamentally misinterpreted both Jefferson Standard
and our decisions construing and applying Jefferson Standard. This is an issue of law
we review de novo. See NLRB v. U.S. Postal Serv., 660 F.3d 65, 68 (1st Cir. 2011);
N.Y. N.Y., LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002); accord Owen v.
Bristol Care, Inc., 702 F.3d 1050, 1054 (8th Cir. 2013). I would deny enforcement
for this reason alone.
B. Turning to the merits of this case, I acknowledge that applying Jefferson
Standard’s disloyalty principle is often difficult. Section 7 protects efforts by
employees and unions to seek public support for their concerted activities, and public
complaints about working conditions frequently implicate sensitive issues such as
product and workplace safety. See Misericordia Hosp. Med. Ctr. v. NLRB, 623 F.2d
808, 814 (2d Cir. 1980) (public criticisms “were a necessary” and “a responsible
attempt to remedy” a grievance). The Supreme Court in Jefferson Standard
recognized that its decision would apply only to egregious acts of employee
disloyalty; it noted the Board’s judgment that the employee tactics at issue “were
hardly less ‘indefensible’ than acts of physical sabotage.” 346 U.S. at 477.
Recognizing the disloyalty principle is limited to extreme cases, I have no difficulty
concluding that MikLin had good cause to fire the six employees.
After losing a union-representation election, pro-union employees delivered an
ultimatum to MikLin -- provide paid sick leave or we will launch a publicity
campaign claiming MikLin is serving its customers contaminated sandwiches. When
management balked, the employees acted, launching “a sharp, public, disparaging
attack upon the quality of the company’s product.” Jefferson Standard, 346 U.S. at
471. First, they hung posters in MikLin stores displaying a sandwich “made by a sick
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Jimmy John’s worker.” The poster asked whether the viewer could tell whether the
sandwich was contaminated and warned: “we hope your immune system is ready
because you’re about to take the sandwich test.” Next, the employees issued a press
release to over one hundred media outlets around the country titled “Jimmy John’s
Workers Blow the Whistle on Unhealthy Working Conditions.” The opening
paragraph declared, “As flu season continues, the sandwich makers at this 10-store
franchise are sick and tired of putting their health and the health of their customers
at risk.” An attachment accused MikLin of “put[ting] . . . customers at risk in the
name of pinching pennies.” When MikLin did not accede to the demand that it meet
with a union committee and negotiate the sick pay issue, the employees posted
hundreds of the contaminated-sandwich posters within two blocks of MikLin’s
Minneapolis sandwich shops. This version asked people to call Robert Mulligan,
MikLin’s owner, “to let him know you want healthy workers making your sandwich.”
The employees structured this attack to have the maximum adverse effect on
MikLin’s reputation and income. They chose March as a “good time” to launch the
attack “because it was flu season.” They issued a national press release, even though
their dispute was with a local Jimmy John’s franchisee. Instead of naming MikLin
in the posters, they named Jimmy John’s, embroiling the entire enterprise in their
local dispute, including the many Jimmy John’s shops in the Twin Cities not owned
by MikLin. This was not publicity “narrowly tailored to effectuate the [employees’
concerted] aims.” Five Star Transp., Inc. v. NLRB, 522 F.3d 46, 54 (1st Cir. 2008).
Rather, the employees selected and disseminated a message that would “hit the
employer where it would hurt, by interfering with its business relations with its
customers.” Red Top, 455 F.2d at 727. And the fear-mongering attack worked as
designed. Robert Mulligan testified that he was “bombarded by” calls and text
messages from customers who “were scared to eat at Jimmy John’s.”
Employee allegations that a food industry employer is selling contaminated
products are likely to have a devastating impact. As the D.C. Circuit explained:
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[W]hen a union claims that a food product produced by a struck
company is actually tainted it can be thought to be using the strike
equivalent of a nuclear bomb; the unpleasant effects will long survive
the battle. The company’s ability to sell the product, even if the strike
is subsequently settled, could well be destroyed. If a customer becomes
apprehensive to bite into Diamond’s walnuts because of a concern at
finding an impurity (even part of a worm), it is unlikely that a strike
settlement will eliminate that visceral fear.
Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259, 1267 (D.C. Cir. 1997) (en
banc) (citation omitted), cert. denied, 523 U.S. 1020 (1998). Here, the employees’
posters graphically told customers (i) that MikLin’s sandwich makers were working
when they are sick (“Shoot, we can’t even call in sick”), and (ii) that sandwiches
made when they are sick will be contaminated (“we hope your immune system is
ready”). Thus, from the array of possible tactics, the employees selected a tactic sure
“to harm [MikLin’s] reputation and reduce its income.” Jefferson Standard, 346 U.S.
at 471. The Act does not protect such calculated, devastating attacks upon an
employer’s reputation and products. See Endicott Interconnect Techs., Inc. v. NLRB,
453 F.3d 532, 537 (D.C. Cir. 2006); accord Coca Cola Bottling Works, Inc., 186
N.L.R.B. 1050, 1054 (1970) (finding employee “Health Warning” leaflet unprotected
because “the main thrust of the leaflet was to create fear in the public’s mind that
drinking Coca Cola would be harmful to the health of the purchaser because of the
presence of foreign objects such as roaches and mice in the bottle”).9
Significantly, the employees’ scare message was deliberately false. They knew
MikLin required its employees to call in sick if they had experienced flu-like
symptoms in the last 24 hours, as Minnesota Department of Health regulations
9
The Board did not cite Diamond Walnut Growers or St. Luke’s, the most
relevant circuit court authorities. It dismissed Coca Cola as Board precedent that “has
been implicitly overruled.” MikLin, 361 N.L.R.B. No. 27, at *5 n.18.
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required. The record is full of examples of MikLin providing time off to sick
employees. In addition, the posters grossly exaggerated the danger of eating a
MikLin sandwich. Over the employer’s ten-year history, when its ten stores served
eight million sandwiches, the Department of Health investigated just two reports of
gastrointestinal illness among MikLin’s employees or customers, in January 2006 and
January 2007. As the ALJ noted: “Given [MikLin’s] record over a 10-year period one
could regard the risk of becoming ill by eating at one of [its] shops to be
infinitesimal.” MikLin, 361 N.L.R.B. No. 27, at *23. The employees’ decision to
portray an infinitesimal risk as a clear and present threat to customers was recklessly
misleading, suggesting a predominant intent to harm MikLin in the wake of their
unsuccessful union election, not an appeal for public support. See St. Luke’s, 268
F.3d at 580-81.
Moreover, the dramatic poster allegations of food contamination were not
necessary to aid the employees’ labor dispute. As the ALJ noted, “there has been no
direct correlation established between these incidents and the absence of sick leave.”
MikLin, 361 N.L.R.B. No. 27, at *23. Rather, the employees punished MikLin by
urging customers not to buy its sandwiches out of an unwarranted fear of becoming
ill. See Montefiore Hosp. & Med. Ctr. v. NLRB, 621 F.2d 510, 517 (2d Cir. 1980).
The employees’ misleading contaminated-sandwich allegations were both
devastating to MikLin’s business and unnecessary to advance their concerted activity.
This is precisely the type of “detrimental disloyalty” that falls outside the protection
of § 7. As Board Member Johnson stated, “Any employee who is willing to make up
allegations out of whole cloth against his or her employer is obviously far more
disloyal, in any meaningful sense of that word, then one who acts upon a reasonable
but mistaken belief.” 361 N.L.R.B. No. 27, at *12 (Johnson, M., dissenting in part).
Because the publicity campaign was unprotected activity, MikLin did not violate the
Act by discharging employees responsible for the disloyal public campaign, and by
urging employees on an employee-created Anti-Union Facebook page to remove the
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disparaging posters from public property near where they worked. See Jefferson
Standard, 346 U.S. at 478; Endicott, 453 F.3d at 538.
For these reasons, I respectfully dissent from Parts II.A and II.B.i of the court’s
opinion. I join Parts II.B.ii and II.B.iii for the reasons stated.
______________________________
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