Employee Disloyalty Can Trump Employee Rights to Communicate Freely with the Public under the NLRA (Even Before Trump Appointees Begin to Issue Decisions Under It)


During a union organizing drive at Jimmy John's sandwich shops in Minnesota, the union protested the company's sick leave policy requiring employees to find a replacement if they called in sick by publicly circulating posters suggesting that Jimmy John's was selling sandwiches made by sick employees.  The company fired the six employees who circulated the posters, and the employees and the union brought a proceeding against Jimmy John's challenging the terminations. The National Labor Relations Board (NLRB) and the original federal appeals court that heard the case found that such conduct by the employees was permitted under the National Labor Relations Act (NLRA) provisions relating to employee rights to communicate with the public. However, when the company appealed to the full United States 8th Circuit Court of Appeals, that Court found that such behavior was so disloyal to the company that the terminations were justified. The Court relied particularly on a 1953 United States Supreme Court case that found that criticism of an employer's product is not protectable conduct, as opposed to communications targeting the employer's labor practices.

Many commentators expect that President Trump's new appointees to the NLRB will issue more pro-employer decisions as cases make their way to them, and we will be watching.  Please contact us if you have any questions.