MikLin Enter., Inc. v. NLRB, No. 14-3099 (8th Cir. 2016)
Annotate this CaseMikLin, owner and operator of a Jimmy John's franchise, petitioned for review of the Board's order holding that the company engaged in unfair labor practices in violation of sections 8(a)(1) and (3) of the National Labor Management Relations Act, 29 U.S.C. 158(a)(1) and (3). The court concluded that that the Board did not err in determining that MikLIn violated the Act by terminating or disciplining employees for engaging in protected concerted activity, and 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. In regard to the Sandwich Poster campaign, the court concluded that the Board's decisions were supported by substantial evidence where the communications at issue were not made with either actual knowledge of its falsehood or with reckless disregard for its veracity, and the statements were not so disloyal or recklessly disparaging as to lose protection under the Act. In regard to the Facebook postings, substantial evidence supports the Board’s finding that the postings were sufficiently linked to the employee’s protected activity. In regard to removal of the in-store posters, the record shows that MikLin had no policy as to what could be posted on the in-store bulletin boards, and management approval was not required. Therefore, MikLin's selective removal of the flyer and the charge was an unfair labor practice. Accordingly, the court granted the Board's application for enforcement.
Court Description: Kelly, Author, with Loken and Bye, Circuit Judges] Petition for Review - National Labor Relations Board. The Board did not err in finding that the employer violated Sections 8(a)(1) and (3) of the National Labor Management Relations Act by terminating or disciplining employees for engaging in protected concerted activity and violated Section 8(a)(1) by soliciting the removal of protected materials from public places, removing union literature from an unrestricted employee bulletin board and encouraging employees on Facebook to harass union supporters; the materials the employees distributed or posted were not materially false and misleading and did not lose their status as protected communications; the Board did not err in finding there was sufficient evidence in the record to find the communications were not made with knowledge of their falsity or with reckless disregard for the truth; likewise, the Board did not err in finding that the statements fell short of unprotected disloyalty and disparagement. Judge Loken, dissenting.
The court issued a subsequent related opinion or order on July 3, 2017.
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