Following an unsuccessful effort to unionize franchise restaurants of the Jimmy John’s chain around the Minneapolis area, run by a firm named MikLin, the Industrial Workers of the World union (“Wobblies”) began a second campaign, as John Hauge 
explains at Minnesota Employer:
Part of the campaign involved putting up posters that called into question the healthfulness of sandwiches prepared in MikLin’s shops. The posters erroneously stated that employees were not allowed to call in sick, and implied that persons eating the sandwiches risked illness by doing so. Several employees supporting the campaign met with MikLin to demand that it provide sick pay to employees, and threatened to put the posters up all over the Twin Cities. The union also issued a press release entitled “Jimmy John’s Workers Blow the Whistle on Unhealthy Working Conditions.”
In a 1953 case called NLRB v. Electrical Workers Local 1229 (Jefferson Standard), the U.S. Supreme Court ruled that although federal labor law in general forbids employers to dismiss workers for union advocacy, it makes an exception for expressions of “disloyalty”, as in the case of “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.” In those cases, the Court ruled, an employer was still free to dismiss the disloyal workers, union activists or no.
You might think that would fit the facts of the Jimmy John’s case quite well, especially given the falsity of the assertion that the restaurant workers couldn’t take sick leave. But an administrative law judge at the NLRB has disagreed, ordering back pay and reinstatement for the dismissed union workers and dismissing the falsity as mere “hyperbole.”
Hauge at Minnesota Employer calls the decision “creative” and warns readers that (assuming the decision is not overturned at the board level) the NLRB may be increasingly inclined to extend protection against “retaliation” to a wider swath of “untrue, malicious and/or disparaging” talk during union campaigns. At least when it comes from the pro-union side.
17 Comments
Given broad protections for “symbolic speech,” the next step will protect “union activists” who intentionally infect the food.
A few years ago I read about a fast food worker who hated the police and used to spit on the sandwiches that the cops ordered. He was convicted of something or other. Maybe he should have appealed his conviction on the grounds that his actions constituted “protected symbolic speech.”
This is a report of a decision by an ALJ, not the NLRB, and is appealable to the Board as a matter of right. (The fact that the NLRB presently does not contain a legal quorum due to Obama’s illegal “recess appointments” is another thing.) ALJ’s can and do make significant errors, and are often reversed by the Board on appeal when their biases get the best of them.
And even if the Board, if it ever gets a legal quorum, upholds the clearly erroneous ruling of the ALJ. its decision is reviewable by Circuit Court of Appeals.
The decision is wrong, but this fight is not over, not by a long shot.
[…] http://overlawyered.com/2012/05 […]
Thanks. I’ve reworded slightly to make sure this distinction gets across.
There is a midtown hotel that was going through a labor dispute — big plastic rat parked outside. Also people were handing out leaflets saying the place was infested with bedbugs. I recall being mildly curious about what would happen when they went back to work. Would there still be bedbugs?
Bob
A better question is will there be a hotel or a restaurant to go back to work at after they drive all the customers away. This strikes me more as extortion which last I looked was illegal.
Wouldn’t this be an example of libel?
it’s all handy dandy as long as the union doing it pays its protection money to the Obama campaign…
These workers are going to feel like real winners when they find that this restaurant has closed down and they get turned down for every service job they apply for in the local area.
It’s surprising, but this tactic has a long history. I recall seeing similar pickets, complete with rat, back in the late 60s in DC.
[…] reports on an administrative law judge for the National Labor Relations Board ruling that a restaurant can’t fire workers over false posters claiming its food is unsafe. Note the subplot of a failed union certification attempt at the company’s Minneapolis […]
Definition: “Extortion (also called blackmail, shakedown, outwresting, and exaction) is a criminal offence which occurs when a person unlawfully obtains either money, property or services from a person(s), entity, or institution, through coercion”. Libel is more to just making false statements. I think it’s more extortion because they are doing it to force the company to accept the union even though they lost the election.
[…] NLRB Allows Wobblies To Get Away With Posting Falsehoods […]
To understand this tactic of this union, you have to realize the motivation of some unions (usually the ones on the far left, the original CIO unions.) One union official explained to me, during my stint as a trial attorney at the Newark, NJ, NLRB in the 60’s, “You don’t understand. We establish what we see are the minimum acceptable conditions in an area for [industry employers]. If a company is unwilling or unable to accept those conditions, we would rather see them close down than have its employees work for unacceptable conditions.”
When I asked about the people who lose their jobs, he said they’d be better off in the long run.
That philosophy motivates many unionists, and leads to situations such as Hostess Cupcakes’ dilemma, the demise of all but the big three in the auto industry, Eastern Airlines’ closure at the hand of theMachinists’, etc.. The closing of one restaurant doesn’t faze them; they feel another will open willing to accept their terms.
The posters erroneously stated that employees were not allowed to call in sick,……
The arbitrator in this case found that this was in fact true. The handbook the company gives out and has employees sign says that if you can’t make work because you are ill, you have to find a replacement or be subject to immediate termination.
To me, that says “you can’t call in sick.”
@Chris: I’ve always thought of a union as being like an army. If winning the battle means that some of the soldiers die, well, the rest of them will be happier afterwards.