Jimmy Johns workers' posters were 'too disloyal' to be protected activity

Dive Brief:

The 8th U.S. Court of Appeals upheld the firing of six workers by a Jimmy John's franchisee, the Star Tribune reports. The court sided with the Minneapolis–Saint Paul restaurant because it said that, in trying to express their desire to unionize and protest the company's lack of paid sick leave, the workers' posters criticizing the safety of the company's product was too disparaging to merit protection under the National Labor Relations Act.
In 2014, the National Labor Relations Board (NLRB) decided that the workers' rights were violated and that the restaurant should rehire them and provide them back pay, according to the Star Tribune. A three-judge panel of the 8th Circuit initially agreed in a 2016 ruling, but the full court has now reversed.
The appeals court did side with the NLRB's stand that MikLin Enterprises, the owner of 10 Jimmy John's franchisees, violated the law by encouraging employees and supervisors to harass a union leader and fellow employee, however.

Dive Insight:

Even in workplaces where employees aren't expressing a desire to unionize, employers must remember that those employees still have rights under the NLRA, namely to engage in concerted activity to improve their working conditions.

But, as the 8th Circuit's ruling shows, workers can lose that protection at a certain point. The Jimmy Johns employees distributed posters warning customers that they were “about to take the sandwich test" — and find out whether a healthy or a sick employee had prepared their meal. The court said the posters were misleading, disparaging and likely to have a devastating effect on the business.

Additionally, while businesses have seen a largely pro-employee NLRB in recent years, Republicans just took control of the majority of NLRB seats. Therefore, it's likely that employers might see more of the kind of decisions business groups expect from a GOP-dominated body, instead of the pro-labor stand they felt the Democrat-controlled Board took. Experts also have predicted that the Board might eventually roll back stances that were perceived to be pro-labor, including joint-employer liability and graduate students' collective bargaining rights.

As we've seen, however, nothing is guaranteed.