Miklin Enterprises, Inc. v. National Labor Relations Board
861 F.3d 812
| 8th Cir. | 2017Background
- MikLin Enterprises operates 10 Jimmy John’s franchises; employees and IWW organized for paid sick leave and lost a 2010 election, then pursued further campaign activity and charges.
- IWW supporters created and distributed a “Sick Day” poster and press releases during flu season suggesting sandwiches might be contaminated because employees work while sick; posters listed a co-owner’s phone number and were placed publicly.
- MikLin removed posters, updated its sick-leave policy, and fired six employees and disciplined others for coordinating or assisting the poster campaign; it also had managers remove union literature from in-store bulletin boards and supervisors posted anti-union Facebook messages targeting a union supporter.
- The NLRB ALJ and majority concluded the posters and press releases were concerted, Section 7-protected activity (not so disloyal or maliciously untrue), but found other employer actions (Facebook posts, removal of union literature) unlawful.
- The Eighth Circuit en banc reviewed whether Jefferson Standard’s disloyalty principle deprives employees of Section 7 protection when means used are objectively calculated to harm the employer, and held the poster campaign was unprotected disloyalty but enforced the Board’s findings on other violations.
Issues
| Issue | Plaintiff's Argument (MikLin) | Defendant's Argument (NLRB/IWW) | Held |
|---|---|---|---|
| Whether Sick Day posters and press releases were protected Section 7 concerted activity or unprotected disloyalty under Jefferson Standard | Posters were a calculated, reputation-damaging attack unrelated to legitimate labor advocacy and thus justified discharge for cause | Communications were tied to the labor dispute (sick-leave demand) and lacked malicious motive; they were protected concerted activity | Court: Posters/press releases were objectively “sharp, public, disparaging” and materially misleading during flu season; means were so disloyal as to lose Section 7 protection — Board’s contrary finding not enforced |
| Whether employer solicitation of employees to remove the posters (co-owner’s Facebook post) violated § 8(a)(1) | Soliciting removal of unprotected posters is lawful and does not interfere with Section 7 rights | Board: post unlawfully restrained employees because it targeted protected activity (if posters protected) | Court: Because posters were unprotected, solicitation to remove them did not violate § 8(a)(1); that portion of Board order not enforced |
| Whether managers’ Facebook posts disparaging a union supporter violated § 8(a)(1) | Employer argued posts were noncoercive opinion protected by § 8(c) | Board: managers’ public ridicule would reasonably intimidate employees and deter union support | Court: Substantial evidence supports Board — managers’ disparagement coerced employees; enforcement affirmed |
| Whether removal of in-store union literature violated § 8(a)(1) | MikLin claimed flyers were false/misleading and removal was legitimate | NLRB: removal interfered with employees’ Section 7 right to communicate about an ongoing rerun election; bulletin board access made posts protected | Court: Substantial evidence supported Board; removal interfered with Section 7; enforcement affirmed |
Key Cases Cited
- NLRB v. Local Union No. 1229, IBEW, 346 U.S. 464 (1953) (establishes Jefferson Standard: employees may lose §7 protection for ‘‘sharp, public, disparaging attack’’ that is disloyal and calculated to harm employer)
- Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) (Section 7 protects third-party communications related to labor disputes)
- NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) (Jefferson Standard’s disloyalty exception does not swallow protections for concerted activity aimed at improving working conditions)
- St. Luke’s Episcopal–Presbyterian Hosp. v. NLRB, 268 F.3d 575 (8th Cir. 2001) (employee public statements can be unprotected when materially false or disparaging to employer’s services)
- Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259 (D.C. Cir. 1997) (product disparagement can have devastating, long-lasting effects on employer’s business and may be unprotected)
- Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53 (1966) (actual-malice standard applied in defamation context during representation campaigns; distinct from disloyalty inquiry)