On July 3, 2017, the Eighth Circuit overturned a National Labor Relations Board (the “Board”) decision finding that a Jimmy John’s franchisee, MikLin Enterprises, Inc. (“MikLin”) violated the National Labor Relations Act (“NLRA”) when it discharged and disciplined employees who publicly distributed posters suggesting that consumers may become sick from eating sandwiches made by sick workers. The posters, which were distributed during a union organizing drive, were part of a campaign to demand paid sick leave. Among other things, the posters stated that Jimmy John’s workers “can’t even call in sick” and showed photos of sandwiches accompanied by phrases such as “we hope your immune system is ready because you’re about to take the sandwich test.” When MikLin fired six of the employees who coordinated the posters and issued written warnings to others, an unfair labor practice charge quickly followed. In March 2014, the Board affirmed the Administrative Law Judge’s finding that Section 7 of the NLRA protected the employees’ activity. Specifically, the Board found that the posters were not so “disloyal, reckless, or maliciously untrue as to lose the Act’s protection.” MikLin Enters., Inc., 361 N.L.R.B. No. 27 (2014). Following a re-hearing en banc, the Eighth Court overturned most of the Board’s Order, finding that the employees’ communications—which would otherwise be protected under Section 7 because they were related to a labor dispute—were so disloyal that they lost protection of the NLRA. MikLin Enters., Inc., No. 14-3099 (8th Cir. July 3, 2017).

The decision is significant because it puts a more employer-friendly gloss on the Board’s interpretation of the long-standing Jefferson Standard test for employee disloyalty. NLRB v. Local Union No. 1229, IBEW, 346 U.S. 464 (1953). Under Jefferson Standard, employee communications lose Section 7 protection if they “mak[e] a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm company reputation and its income.” According to the Court, the Board misconstrued the Jefferson Standard test by requiring a “malicious motive” in order for communications to lose protection. To the contrary, the Court held, the test contains an objective component that focuses on the means used to conduct the attack and whether they reflect “indefensible employee disloyalty.” By suggesting that food served by Jimmy John’s could be filled with cold and flu germs, the employees leveled just the type of devastating attack on the restaurant’s business for which the employer could take disciplinary action.