The National Labor Relations Board ruled that MikLin Enterprises Inc., a 10-unit Jimmy John’s franchisee in the Minneapolis-St. Paul area, committed unfair labor practices against members of the Jimmy John’s Workers Union, an organization comprising several of its employees.
The Jimmy John’s union is supported by the Industrial Workers of the World, or IWW.
Administrative law judge Arthur Amchan ruled Friday that MikLin violated the National Labor Relations Act by firing six employees and issuing written warnings to three others on March 20, 2011, after those workers pressed the franchisee for paid sick leave and posted about 3,000 posters calling attention to MikLin’s sick-leave policy.
The poster featured two pictures of Jimmy John’s sandwiches side by side with a caption reading: “Your sandwich made by a healthy Jimmy John’s worker. Your sandwich made by a sick Jimmy John’s worker. Can’t tell the difference? That’s too bad, because Jimmy John’s workers don’t get paid sick days. Shoot, we can’t even call in sick.”
MikLin Enterprises owners Mike and Rob Mulligan argued in court that the National Labor Relations Act did not protect the union members’ actions because they showed disloyalty to their employer and demonstrated a malicious intent to disparage Jimmy John’s products and MikLin’s reputation.
The NLRB disagreed, however, ruling that the “sick day” posters were sufficiently connected to a labor dispute, and thus protected by the act. Not only were the posters connected to the issue of paid sick leave, the NLRB noted, but they also did not stray from the truth so egregiously as to lose the act’s protection.
“There is no question that if employees posted or handed out flyers asking the public not to patronize their employer because they did not get paid sick leave, such conduct would be protected,” Amchan wrote in his decision. “The postings were clearly tied to a labor dispute. … The statement, ‘Shoot, we can’t even call in sick,’ is not a sufficient departure from the truth to render the posters unprotected. … The union’s first factual assertion, that Jimmy John’s employees do not get paid sick days, is true, at least with regard to MikLin.”
A call to MikLin co-owner Mike Mulligan was not returned by press time.
The company’s justification for firing six workers was disclosed in the termination notice of union member Micah Buckley-Farley, which the IWW entered as evidence in the hearing before the NLRB in February.
“The widespread malicious distribution of these posters on March 20 was clearly intended to harm the company and to injure its business and reputation and that of the owners,” the termination notice read. “Its malicious intent is underscored by its failure to identify MikLin Enterprises and its calculated blanket indictment of all other Jimmy John’s stores in the country, none of which has any kind of dispute with the IWW. You clearly intended to damage not only the Jimmy John’s brand image of all franchisees, but that of the franchisor organization as well.”
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The termination notices for Buckley-Farley and Davis Ritsema also noted their role in distributing the union’s press release, which included an image of the “sick day” poster, as grounds for their firing, according to Amchan’s decision. The NLRB also ruled that MikLin officials violated the act by removing the union’s “sick day” poster from its property and from nearby posts.
The board dismissed the claim that MikLin disparaged union supporters, with one exception. A restaurant manager for MikLin was found in violation of the National Labor Relations Act for encouraging members of an anti-union group to harass union member David Boehnke by posting Boehnke’s cell phone number on their Facebook group page and telling people to text him indiscriminately.
The board dismissed the charge that Mike Mulligan illegally interrogated union supporter Buckley-Farley.
The board has ordered MikLin to reinstate the six fired workers and to give them back pay. Union members celebrated the judge’s decision but noted that a lengthy appeal process could delay the fired workers' reinstatement and restitution.
“It has already been over a year since we were illegally fired for telling the truth,” Erik Forman, one of the six fired workers, said in a statement. “For all the hard work and dedication of the NLRB’s civil servants, employers like Jimmy John’s prefer to break the law and drag cases through the courts for years, rather than let workers exercise their right to win fair pay, sick days and respect through union organization.”
Champaign, Ill.-based Jimmy John’s has more than 1,400 restaurants in the United States.
Contact Mark Brandau at [email protected].
Follow him on Twitter: @Mark_from_NRN