NLRB Judge Finds Fast-Food Facebook® Post Encouraged Harassment of Union Supporter

A National Labor Relations Board (NLRB) administrative law judge has determined that the owner of 10 Jimmy John’s fast-food restaurants in the Minneapolis-St. Paul area violated federal law during a labor dispute by, among other matters, posting a pro-union employee’s phone number on its Facebook® page and suggesting that members text the employee to “let him know how they feel.” Miklin Enters., Inc. d/b/a Jimmy John’s and IWW, Nos. 18-CA-19707, -19727, -19760 (N.L.R.B., Div. of Judges, decided April 20, 2012). According to the judge, the assistant manager’s posts encouraged other employees and managers to “harass” the employee “for activities that were protected, as well as some that were arguably unprotected.” A co-owner’s subsequent Facebook® posts disparaging the employee further “condoned such harassment.”

The employer terminated the pro-union employee and several others for
posting flyers on restaurant bulletin boards and in areas near the restaurants
suggesting that public health could be affected by the company’s sick leave
policies, which, according to the judge, could have provided “a powerful
economic incentive for employees to work when ill and to conceal illness that
would exclude them from work.” The employer also apparently encouraged
managers and employees to tear the posters down. The judge determined
that the posters were protected under federal law and that the employer,
therefore, violated the law by removing them and disciplining the employees who posted them. The employer was ordered to offer the terminated employees reinstatement and remove any disciplinary warnings as to others
from its employment files.