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Eighth Circuit Enforces Limits to NLRA Protected Acts

The sick leave policy at 10 Jimmy John’s franchises owned by MikLin Enterprises was part of an organized labor campaign. As part of the campaign, employees posted flyers, press releases, and “open letters” to the media that suggested customers could be tainted by the food being prepared by sick workers. One slogan was “Shoot, We Can’t Even Call in Sick,” and customers were given the impression that workers with the flu, strep throat and colds were preparing their food. Six of the workers were fired for these acts and the remaining employees were given disciplinary notices. The National Labor Relations Board (NLRB) found that Section 7 of the National Labor Relations Act (NRLA) protected these acts. Because they were concerted activities intended for the mutual aid or protection of employees, the NLRB determined that the terminations and write-ups were an unlawful interference.

The Eighth Circuit Court of Appeals refused to enforce that decision. Both the NLRB and the circuit court applied the “disloyalty test” to decide whether the terminations were unlawful. In reaching a disparate conclusion, the appeals court held that employees may be fired for “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.” Proclaiming that a company in the food industry was selling unhealthy food was considered by the court to be “devastating” on its business. It was further noted by the court that the postings were “materially false and misleading” in suggesting that employees were not allowed to call in sick.