Employee criticism of an employer: Be careful how you react

Imagine you own or manage 10 Jimmy John’s restaurants. A handful of your employees place posters in your restaurants depicting identical sandwiches, where one sandwich is described as made by a healthy worker and the other as made by a sick worker.

The posters state “Can’t tell the difference? Too bad because Jimmy John’s workers don’t get paid sick days. Shoot, we can’t even call in sick. Hope your immune system is ready because you are about to take the sandwich test… Help Jimmy John’s workers win sick days.”

The first reaction of most owners and managers might be to rip down the posters, identify the responsible employees, and discipline or even discharge them. However, those employers may find themselves answering to the National Labor Relations Board for violating their employees’ rights to concerted activity under the National Labor Relations Act. Indeed, in an Aug. 21, 2014, 2-1 decision by the Board, MikLin Enterprises was found to have violated the employees’ rights by terminating six employees for what it considered disloyal action. MikLin Enterprises, Inc., d/b/a Jimmy John’s and Industrial Workers of the World.

Some employees of 10 different Jimmy John’s restaurants in the Minneapolis-St. Paul area tried to start a union, and lost the election by an 85-87 margin in October 2010. The union filed objections and unfair labor practice allegations that were ultimately settled in January 2011. The poster incident described above occurred from January to March 2011. The Board described the lack of paid sick leave as one of the issues the employees raised during the organizing campaign.

Board decision
The majority of the Board’s three-person panel found that the posters were part of the “sick days” campaign and related to an ongoing labor dispute, and communicating this employee concern regarding sick days was protected, concerted activity under the NLRA. The majority then analyzed whether the communications lost their protection because they were based on recklessness, disloyalty or malicious untruth. The Board placed a high burden on the employer and relied on an earlier decision, which held, “the mere fact the statements are false, misleading or inaccurate is insufficient to demonstrate that they are maliciously untrue.”

The Board also found that the communications were not so disloyal as to lose protection of the NLRA. While the remarks might undermine the business relationship between the employer and its customers, and result in a financial loss to the employer, since these communications were not made at a critical time in the initiation of the Jimmy John’s business, did not use inflammatory language, and did not stray from the context of the labor dispute, they remained protected activity. There is no evidence that the employees’ or union’s purpose was to inflict harm on the Respondent or that they acted recklessly without regard for the economic detriment to the Respondent’s business, the Board concluded.

There was a vigorous dissent from the third member of the three-member panel, who would have found that the employees’ communication was unprotected under the test in NLRB v. Electrical Workers Local 1229 (Jefferson Standard) 346 US 464 (1953). The dissent argued that the statements in the poster were “maliciously motivated with the primary intent to injure MikLin’s business reputation and income, rather than to address the employees’ sick leave grievance.”

The majority decision also contained a discussion of social media postings that the Board found interfered with the employees’ protected activities. Several supervisors left comments on a crudely altered picture of a union-supporting employee on Facebook, and the Board found that their comments and other actions rose to the level of harassment meant to humiliate the employee, and dissuade other employees from supporting the union, constituting a separate violation of the NLRA.

Employer response
An employer must be extremely cautious when responding to a public criticism or disparaging remarks made by their employees, and must avoid making personally disparaging remarks directed to employees who support unions. Responding with counseling or discipline when an employee ridicules the employer, whether the criticism takes place at the workplace or over the Internet, should only follow a careful review of the message to see if it meets the tests articulated in the MikLin case:

1. Is the communication related to a labor practice of the company? Does it relate to wages, hours, or working conditions, and is therefore protected?

2. If so, is the communication so disloyal, reckless or maliciously untrue as to lose protection under the NLRA?

It will not be difficult for employees to wrap themselves in concerted and therefore protected activity, as they publicly describe workplace issues. Of course, defamation and disloyal conduct, especially if maliciously untrue, can still be checked by an employer.

Please keep posted on the development of these cases as they will likely be challenged by an appeal and face federal court of appeals review. For now, when faced with critical disciplinary decisions related to employee communications, consult with counsel.

Thomas Godar is an attorney in the Human Resources Law Practice Group at Whyte Hirschboeck Dudek.

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