Eighth Circuit: Appeals Court Clarifies When Employees Forfeit NLRA Protections Based on Disloyal and Disparaging Activities

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All Employers with AR, IA, MN, MO, NE, ND, SD Employees

EFFECTIVE

July 3, 2017

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In MikLin Enterprises, Inc., v. NLRB, the Eighth Circuit Court of Appeal reversed, in part, a National Labor Relations Board (“NLRB”) ruling, stating that certain employee activity was disloyal, reckless, and maliciously untrue, losing union-related protection under the National Labor Relations Act (“NLRA”).

Following a defeated union vote, employees posted pictures in MikLin-owned stores and in public places implying that customers’ health would be compromised by eating the company’s food, because the workers did not get paid sick days and were not able to call in sick. The employer removed the posters when discovered and terminated or disciplined the employees who coordinated the campaign, based on their involvement. An assistant manager of the employer also posted on Facebook the phone number of a union-supporting employee who was terminated for displaying the posters, suggesting that others “let him know how you feel.” Another employee posted information on in-store bulletin boards related to the failed union election and subsequent settlement; however, the information was routinely removed or defaced.

The NLRB stated that the employer violated the NLRA when it discharged or disciplined employees who distributed the posters, solicited employees to remove the posters, encouraged employees to disparage a union supporter, and removed union literature from in-store bulletin boards.

However, the Eighth Circuit stated that the poster attacks were sufficiently disloyal under Jefferson Standard to lose NLRA protection, permitting responsive action by the employer.  The court identified the Jefferson Standard inquiry as being based on whether an employee’s public communications reasonably targeted the labor practices of the employer, or disparaged the employer’s product or service quality. The court stated that the employer did not violate the NLRA by encouraging employees to remove the posters because the posters contained statements that were: “sharp” and with potentially devastating effect on a food-related business, “reasonably calculated to harm the company’s reputation and reduce its income” because it told customers that the food might make them sick, and “materially false and misleading.” Further, the employer’s product or business did not have to be in an initial stage for Jefferson Standard to apply; it was sufficient that the employees’ suggestion, that the employer’s food was contaminated during flu-season, was intended to harm the employer at a critical time.

Additionally, the court stated that referring to a labor dispute in connection with disparaging comments about an employer’s product is not necessarily protected under the NLRA, and the disparaging activity may still be found to be disloyal. Conversely, the court agreed with the NLRB that the employer violated the NLRA by posting messages on Facebook degrading a pro-union employee and by removing union literature from in-store bulletin boards.

Action Items

  1. Review policies and practices impacting union activity for consistency with this ruling.
  2. Seek legal counsel before taking action that impacts an employee’s terms and conditions of employment based on any potentially related union activity.
  3. Arrange for manager training on handling labor disputes, including not disparaging involved employees.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2017 ManagEase, Incorporated.

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