861 F.3d 812 (8th Cir. 2017), 14-3099, MikLin Enters., Inc. v. National Labor Relations Board

Docket Nº:14-3099, 14-3211
Citation:861 F.3d 812
Opinion Judge:LOKEN, Circuit Judge, with whom SMITH, Chief Judge, WOLLMAN, RILEY, GRUENDER, and SHEPHERD, Circuit Judges, join.
Party Name:MikLin Enterprises, Inc., doing business as Jimmy John's, Petitioner v. National Labor Relations Board, Respondent Industrial Workers of the World, Intervenor; National Labor Relations Board, Petitioner v. MikLin Enterprises, Inc., doing business as Jimmy John's, Respondent Industrial Workers of the World, Intervenor
Attorney:For MikLin Enterprises, Inc., doing business as Jimmy John's, Petitioner (14-3099): Mary Grace Dobbins, Michael Arthur Landrum, LANDRUM & DOBBINS LLC, Edina, MN. For National Labor Relations Board, Respondent (14-3099): Jennifer Abruzzo, Linda Dreeben, Deputy Associate General Counsel, John H. Fe...
Judge Panel:Before RILEY, Chief Judge,[*] WOLLMAN, LOKEN, MURPHY, SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc. LOKEN, Circuit Judge, with whom SMITH, Chief Judge, WOLLMAN, RILEY, GRUENDER, and SHEPHERD, Circuit Judges, join. COLLOTON, Circuit Judge, with whom BENTON, Circu...
Case Date:July 03, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 812

861 F.3d 812 (8th Cir. 2017)

MikLin Enterprises, Inc., doing business as Jimmy John's, Petitioner

v.

National Labor Relations Board, Respondent Industrial Workers of the World, Intervenor;

National Labor Relations Board, Petitioner

v.

MikLin Enterprises, Inc., doing business as Jimmy John's, Respondent Industrial Workers of the World, Intervenor

Nos. 14-3099, 14-3211

United States Court of Appeals, Eighth Circuit

July 3, 2017

Submitted September 19, 2016

Petitions for Review of an Order of the National Labor Relations Board.

For MikLin Enterprises, Inc., doing business as Jimmy John's, Petitioner (14-3099): Mary Grace Dobbins, Michael Arthur Landrum, LANDRUM & DOBBINS LLC, Edina, MN.

For National Labor Relations Board, Respondent (14-3099): Jennifer Abruzzo, Linda Dreeben, Deputy Associate General Counsel, John H. Ferguson, Richard F. Griffin, Jr., Joel Abraham Heller, NATIONAL LABOR RELATIONS BOARD, Washington, DC; Florence Brammer, Marlin O. Osthus, NATIONAL LABOR RELATIONS BOARD, Minneapolis, MN; Timothy J. Louris, MILLER & O'BRIEN, Minneapolis, MN; Kira Dellinger Vol, NATIONAL LABOR RELATIONS BOARD, Office of the Executive Secretary, Washington, DC.

For Industrial Workers of the World (14-3099, 14-3211), Intervenor: Timothy J. Louris, M. William O'Brien, MILLER & O'BRIEN, Minneapolis, MN.

For National Labor Relations Board, Petitioner (14-3211): Jennifer Abruzzo, Linda Dreeben, Deputy Associate General Counsel, John H. Ferguson, Richard F. Griffin, Jr., Joel Abraham Heller, NATIONAL LABOR RELATIONS BOARD, Washington, DC; Florence Brammer, Marlin O. Osthus, NATIONAL LABOR RELATIONS BOARD, Minneapolis, MN; Timothy J. Louris, MILLER & O'BRIEN, Minneapolis, MN; Kira Dellinger Vol, NATIONAL LABOR RELATIONS BOARD, Office of the Executive Secretary, Washington, DC.

For MikLin Enterprises, Inc., doing business as Jimmy John's, Respondent (14-3211): Mary Grace Dobbins, Michael Arthur Landrum, LANDRUM & DOBBINS LLC, Edina, MN.

Before RILEY, Chief Judge,[*] WOLLMAN, LOKEN, MURPHY, SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc. LOKEN, Circuit Judge, with whom SMITH, Chief Judge, WOLLMAN, RILEY, GRUENDER, and SHEPHERD, Circuit Judges, join. COLLOTON, Circuit Judge, with whom BENTON, Circuit Judge, joins, concurring in the judgment. KELLY, Circuit Judge, with whom MURPHY, Circuit Judge, joins, dissenting in part.

OPINION

LOKEN, Circuit Judge, with whom SMITH, Chief Judge, WOLLMAN, RILEY, GRUENDER, and SHEPHERD, Circuit Judges, join.

MikLin Enterprises, Inc. (" MikLin" ) petitions for review of a National Labor Relations Board (" Board" ) Order holding that MikLin violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (" NLRA" or " the Act" ), 29 U.S.C. § § 158(a)(1) and (3), when it (i) discharged and disciplined employees who publicly distributed posters suggesting that MikLin's " Jimmy John's" sandwiches posed a health risk to consumers; (ii) solicited employees to aid in removing the posters; (iii) encouraged employees to disparage a union supporter; and (iv) removed union literature from in-store bulletin boards. MikLin argues that the Board misapplied governing law and its decision is not supported by substantial evidence. The Board cross-petitions for enforcement of its Order. A divided panel enforced the Order in its entirety. We granted rehearing en banc and vacated the panel decision. We now conclude that the means the disciplined employees used in their poster attack were so disloyal as to exceed their right to engage in concerted activities protected by the NLRA, as construed in a controlling Supreme Court precedent, N.L.R.B. v. Local Union No. 1229, IBEW, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953) (" Jefferson Standard" ). We therefore decline to enforce the determination that MikLin violated the Act by disciplining and discharging those employees and by soliciting removal of the unprotected posters. We enforce the remainder of the Order, as so modified.

I. Background .

A. The " Sick Day Posters" Campaign.

MikLin is a family enterprise that owns and operates ten Jimmy John's sandwich-shop franchises in the Minneapolis-St. Paul area. Michael Mulligan is president and co-owner; Robert Mulligan, his son, is vice-president. In 2007, several MikLin workers began an organizing campaign seeking representation by the Industrial Workers of the World (" IWW" ) union. The IWW lost a Board-conducted election in October 2010, filed unfair labor practice charges and objections to the election with the Board, and continued its organizing campaign by urging MikLin to provide employees holiday pay in late 2010. On January 10, 2011, MikLin and the IWW settled the IWW's objections. MikLin admitted no wrongdoing but agreed to a Board-conducted rerun election if the IWW filed for the election after sixty days but not later than after eighteen months.

With the holiday season passed, the IWW decided its next " march on the boss" group action would be to demand paid sick leave. The IWW concluded that the approach of flu season was a good time to raise the issue. At this time, MikLin's handbook required any employee who would be absent from a shift to find a replacement and notify the store manager. Rule 11 of Jimmy John's Rules for Employment, which employees received when hired, stated: " Find your own replacement if you are not going to be at work. We do not allow people to simply call in sick! We require our employees and [managers] to find their own replacement! NO EXCEPTIONS!" Failure to follow this procedure resulted in termination. MikLin did not offer paid leave for sick employees, though an employee with sufficient tenure was entitled to paid leave to care for a sick child.

Organizers of the IWW sick leave campaign began their attack in late January and early February 2011 by designing and posting on community bulletin boards in MikLin stores posters that prominently featured two identical images of a Jimmy John's sandwich. Above the first image were the words, " YOUR SANDWICH MADE BY A HEALTHY JIMMY JOHN'S WORKER." The text above the second image said, " YOUR SANDWICH MADE BY A SICK JIMMY JOHN'S WORKER." " HEALTHY" and " SICK" were in red letters, larger than the surrounding text in white. Below the pictures, white text asked: " CAN'T TELL THE DIFFERENCE?" The response, in red and slightly smaller: " THAT'S TOO BAD BECAUSE JIMMY JOHN'S WORKERS DON'T GET PAID SICK DAYS. SHOOT, WE CAN'T EVEN CALL IN SICK." Below, in slightly smaller white text, was the warning, " WE HOPE YOUR IMMUNE SYSTEM IS READY BECAUSE YOU'RE ABOUT TO TAKE THE SANDWICH TEST." Text at the bottom of the poster asked readers to help the workers win paid sick days by going to their website.

MikLin managers quickly removed the posters from store bulletin boards. On the morning of March 10 -- the day before the IWW could request a rerun election IWW supporters distributed a press release, letter, and the sandwich poster to more than one hundred media contacts, including local newspapers and major news outlets such as the Associated Press, Reuters, Bloomberg, and NBC News. The press release highlighted " unhealthy company behavior." Its second sentence framed the message: " As flu season continues, the sandwich makers at this 10-store franchise are sick and tired of putting their health and the health of their customers at risk." The release declared: " According to findings of a union survey, Jimmy John's workers have reported having to work with strep throat, colds and even the flu." The release ended with a threat: if Robert and Michael Mulligan would not talk with IWW supporters about their demands for paid sick leave, the supporters would proceed with " dramatic action" by " plastering the city with thousands of Sick Day posters."

Employees attached to the press release a " sick leave letter" to the Mulligans which asserted that health code violations occur at MikLin stores nearly every day. The employees complained: " By working sick, we are jeopardizing the entirety of [the company's] image and risking public safety." The letter accused MikLin of refusing to put customers first, risking customers' health, and " shoving [customers] to the bottom of the well of importance." Like the press release, the letter concluded with a threat: if the Mulligans would not meet the employees' demands, the campaign would " move forward with [its] Sick Day posters by posting them not only in stores, but on the University's Campus, in hospitals, on street corners, and any other place where postings are common, citywide."

Also on March 10, four organizers met with Robert Mulligan. They told Mulligan that MikLin's attendance policy and low wages pressured employees to work while sick. Mulligan said MikLin was in the process of reforming its policies...

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