Miklin Enters., Inc. v. Nat'l Labor Relations Bd.
| Decision Date | 25 March 2016 |
| Docket Number | 14–3211.,Nos. 14–3099,s. 14–3099 |
| Citation | 818 F.3d 397 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael Arthur Landrum, argued, Mary G. Dobbins, on the brief, Edina MN, for petitioner/cross respondent.
Joel A. Heller, NLRB, argued, Washington, DC, for respondent/cross appellant and intervenor.
M. William O'Brien and Timothy J. Louris, on the brief, Minneapolis, MN, for intervenor.
Before LOKEN, BYE, and KELLY, Circuit Judges.
KELLY
, Circuit Judge.
MikLin Enterprises, Inc., d/b/a/ Jimmy John's (MikLin), petitions for review of a National Labor Relations Board (Board) order holding MikLin engaged in unfair labor practices. The Board found MikLin violated sections 8(a)(1) and (3) of the National Labor Management Relations Act (Act),1 by terminating or disciplining employees for engaging in protected concerted activity, and violated section 8(a)(1) by soliciting the removal of protected material from public places, removing union literature from an unrestricted employee bulletin board, and encouraging employees on Facebook to harass union supporters. The Board cross-appeals for enforcement of its order. We deny the petition for review and enforce the Board's order.
MikLin owns and operates ten Jimmy John's franchises in Minneapolis and St. Louis Park, Minnesota. The Industrial Workers of the World (IWW) has been trying to organize employees at the ten stores since 2007. The unionization effort went public in September 2010. One of the issues highlighted in the organizing campaign was MikLin's lack of paid sick leave.
When hired, MikLin employees are given a copy of "Jimmy John's Rules for Employment." Rule 11 states: On March 16, 2011, MikLin instituted a new attendance policy that established a disciplinary point system for missing work. Employees were still required to find their own replacements if they had to miss work.2 The new policy provided:
Absence due to sickness: With regard to absenteeism due to flu like symptoms, Team Members are not allowed to work unless and until those symptoms have subsided for 24 hours. Each day of sickness will count as a separate absence except that an absence of two or more consecutive days for the same illness will be counted as one "occurrence" when the Team Member supplies the Company with a medical certification that the Team Member has been seen by a doctor during the illness.
After the IWW lost a representation election in October 2010, it filed objections to the conduct of the election. The objections case was settled on January 11, 2011. The parties also settled an unfair labor practice case on January 11, 2011. After the settlement, a union supporter posted copies of the unfair labor practice charge and a "Frequently Asked Questions" (FAQ) flyer about the election and settlement on a bulletin board used freely by employees and others at one of MikLin's stores. MikLin had no policy limiting what employees could post on the board. The manager removed the postings each time they were posted.
In late January or early February 2011, employees David Boehnke, Brittany Koppy, Davis Ritsema, and Max Specktor placed posters featuring two identical, side-by-side photographs of a sandwich (Sandwich Posters) on community bulletin boards in the public area of several of MikLin's stores. Above the left sandwich was a label stating "Your Sandwich Made By A Healthy Jimmy John's Worker." Above the right sandwich was a label stating: "Your Sandwich Made By A Sick Jimmy John's Worker." Below the photographs, in larger white letters, the poster stated: "Can't Tell the Difference?" In smaller red letters, the poster stated: Below that, in even smaller white letters, the posters stated: "We Hope Your Immune System Is Ready Because You're About To Take the Sandwich Test ..." Below that, in white letters approximately the same size as the labels at the top of the posters, the posters asked readers to Managers removed the posters.
On March 10, 2011, employees Ritsema, Specktor, Erick Forman, and Mike Wilklow met with Rob Mulligan, co-owner and vice president of MikLin, to discuss sick leave. They told Mulligan that MikLin employees were working while sick because they could not find replacements or afford to take time off without pay, and that having sick employees work jeopardized the Jimmy John's image and risked public safety. They presented Mulligan with a letter from IWW asking for paid sick leave. The letter informed Mulligan that if he did not meet with the employees again by March 20 to discuss changing MikLin's sick-leave policy, employees would post the Sandwich Posters not just in stores but "in other place[s] where postings are common, citywide."
On March 10, the IWW issued a press release entitled, "Jimmy John's Workers Blow the Whistle on Unhealthy Working Conditions." The press release stated, "With Election Possibilities Ahead, Jimmy John's Union Returns With Action On Paid Sick Days" and attached a copy of the sandwich poster, a "10 Point Program for Justice at Jimmy John's," and the letter the employees had presented to Mulligan that same day. The first paragraph of the press release stated:
Sick of working sick, today the Jimmy John's Workers Union blows the whistle on unhealthy working conditions and demands a change in sick leave policy. 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.
MikLin did not respond to the employees' March 10 letter. On March 20, employees Boehnke, Specktor, Wilklow, Collins, Eddins, and Koppy posted the Sandwich Posters in various public places within two blocks of each MikLin store. The posters were the same as those previously posted on in-store community bulletin boards, except these posters included Mulligan's phone number. That evening, Mulligan and others took down as many posters as they could find.
On March 22, MikLin fired Boehnke, Forman, Ritsema, Specktor, Wilklow, and Micha Buckley–Farlee for "being the leaders and developers" of the Sandwich Poster campaign, and issued final written warnings to Koppy, Isaiah Collins, and Sean Eddins for being "foot soldiers" in the campaign. The discharge notices for Ritsema and Buckley–Farlee also cited the March 10 press release as a reason for their discharge.
At least as early as October 17, 2010, a MikLin employee established a "Jimmy John's Anti Union" Facebook group, accessible to anyone with a Facebook account. Rob Mulligan, store managers, assistant managers, area managers, and other employees posted on the page, both during and after the organizing campaign. Many of the postings disparaged the organizing activities and the employees who supported the union, often using crude and profane language. Prior to the March 20, 2011, posting of the Sandwich Poster, Rob Mulligan posted a message on Facebook encouraging anyone who saw the Sandwich Posters around the Twin Cities to take them down. Sometime in March 2011, Rene Nichols, the Assistant Manager at the MikLin's store where Boehnke worked, posted Boehnke's personal cell phone number and suggested Facebook members text Boehnke to "let him know how they feel." Below that, she added,
After the MikLin employees were discharged and disciplined, IWW filed three unfair labor practice charges. The Board's Acting General Counsel issued a consolidated complaint alleging MikLin committed unfair labor practices in violation of Sections 8(a)(1) and (3) of the Act. Following a two-day evidentiary hearing, the Administrative Law Judge (ALJ) issued a decision recommending that MikLin be found to have committed most, but not all, of the violations alleged in the consolidated complaint.
MikLin filed exceptions to the ALJ's decision. On August 21, 2014, the Board issued its Decision and Order affirming, as modified, the findings and recommended order of the ALJ. The Board found, by a 2–1 vote, that MikLin violated Sections 8(a)(3) and (1) of the Act by discharging and issuing written final warnings to employees because of their participation in the Sandwich Poster campaign, and violated Section 8(a)(1)
by soliciting employees to remove the Sandwich Posters posted on non-MikLin property. The majority agreed with the ALJ that the posters and the press release were sufficiently related to an ongoing labor dispute to be protected and that there was nothing in the posters or press release that was so disloyal, reckless, or maliciously untrue so as to cause the employees to lose the Act's protection.
The dissent strongly disagreed, finding the statement in the poster, to be empirically false. The dissent concluded that, because the publishers of the posters knew the statement was false and published it anyway, the employees' distribution of the posters was maliciously motivated with the primary intent to injure MikLin's business reputation and income, rather than to redress the employees' sick leave grievance. The dissent found the employees had resorted to a means of protest so disloyal that their actions lost the Act's protection.
The Board unanimously agreed MikLin violated Section 8(a)(1)
by removing union literature from otherwise unrestricted...
To continue reading
Request your trial