NLRB Rules that Attack on Safety of Employer’s Products is Protected Employee Concerted Activity

As previously discussed on the Employment Law Alert, the National Labor Relations Board has taken several pro-union actions and issued many pro-union decisions over the last few years that impact union and non-union businesses alike, which recently include issuing the latest “quickie” election rule and increasing protections afforded to union-related communications made through companies’ e-mail systems. In MikLin Enterprises, Inc., d/b/a Jimmy John’s, the Board rendered another pro-union decision, a decision which serves to remind all employers to be mindful of the NLRB when considering employee discipline for disloyalty when the allegedly disloyal acts relate to employee dissatisfaction with working conditions.

The Jimmy John’s Decision

In Jimmy John’s, the Board decided that a franchisee of the Jimmy John’s chain, committed unfair labor practices by discharging and disciplining employees who posted notices in its stores and throughout the local community suggesting that employees were contaminating sandwiches the company sold to the public. Specifically, the posters “displayed side-by-side pictures of a sandwich, one described as made by a healthy Jimmy John’s worker and the other as made by a sick worker,” which read, “Can’t Tell the Difference? That’s too bad because Jimmy John’s workers don’t get paid sick days. Shoot, we can’t even call in sick. We hope your immune system is ready because you are about to take the sandwich test. . . . Help Jimmy John’s workers win sick days.” The posters urged readers to contact the owner, and provided the owner’s name and telephone number. The employees, who were considering unionizing, claimed that they posted the notices in response to the company’s sick leave policy, which required an employee to find another employee to take over his/her shifts if s/he wanted to take an excused sick day. Employees who participated in poster campaign were either discharged or issued written warnings.

The Board concluded that the employees’ postings constituted “protected concerted activity” because the posters were expressly related to an ongoing labor dispute and referenced a working condition, namely, the company’s sick policy. The NLRB found that the postings were not “so disloyal, reckless, or maliciously untrue” so as to lose the National Labor Relations Act’s protections largely because, in the Board’s view, the posters were not made “at a critical time” in the initiation of the business’ operations, did not use inflammatory language, and did not stray from the labor dispute. The Board ruled that, although the claim made in the employees’ postings that they were not permitted to call in sick was not literally true, it reasonably characterized the impact of the employer’s policy and thus was not maliciously false. The Board further ruled that the implication in the postings that the employer’s customers could get sick by eating the employer’s sandwiches was protected concerted activity because the employer did not present evidence that the words were published with knowledge of their falsity or with reckless disregard o whether they were true or false. The Board concluded that there was no evidence that the employees intended “to inflict harm” upon the company or that they “acted recklessly without regard for the economic detriment” to the company.

One member of the Board issued a dissenting opinion, and the decision is on appeal to the United States Court of Appeals for the Eighth Circuit.


Regardless of the outcome of the appeal in Jimmy John’s, the decision is representative of the analysis the current Board will undertake when deciding whether employee conduct, considered disloyal by the employer, will, nevertheless, constitute protected concerted activity. Thus, employers must tread carefully when considering taking action against employees protesting working conditions.

For answers to any questions regarding this blog or with regard to labor relations generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department for assistance.

You may also like...