Sick of having to find coverage when ill, Jimmy John’s employees who took their message public soon found themselves on permanent leave. In this 2-1 decision, the Eighth Circuit backed a National Labor Relations Board (“Board”) ruling that a franchisee unlawfully discharged employees for publicizing information suggesting the company’s sick leave policy posed food safety risks to consumers. MikLin Enterprises, Inc. v. NLRB, No. 14-3099 (8th Cir. March 25, 2016).
MikLin owns and operates several Jimmy John’s franchises in the Minneapolis-St. Paul area. It has a strict sick leave policy that calls for discipline action against any employee who fails to find coverage when sick.
Employee efforts to change the policy were backed by the Industrial Workers of the World (IWW), following the organization’s failed attempt to unionize MikLin’s employees. MikLin resisted, prompting employees to take the conflict public by posting fliers near MikLin owned restaurants depicting pictures of two identical sandwiches. Above the left sandwich was a statement: “Your Sandwich Made By a Healthy Jimmy John’s Worker.” Above the right was a statement: “Your Sandwich Made By a Sick Jimmy John’s Worker.” Below both was a message: “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.”
Six employees were fired for participating in the campaign while several others were disciplined. IWW responded by filing an unfair labor practice charge.
The National Labor Relations Act (NLRA) prohibits discrimination due to union activity. In other words, if an employer fires an employee for engaging in union activities, the employer commits an unfair labor practice. However, concerted activity loses its protected status if it is so detrimentally disloyal to the employer it provides cause to discharge an employee. In this case, there was no dispute that the employee posters were made in the context of a labor dispute. The issue was whether the activity was “so disloyal, reckless or maliciously untrue as to lose the Act’s protection.” The Board said it was not. The Eighth Circuit agreed.
Rejecting MikLin’s argument that the employees “knew the overall message was materially false and misleading”, the court concluded there was substantial evidence that employees were directed to, and did in fact work while sick to avoid discipline. The sandwich poster campaign communications were therefore “not so disloyal” as to lose the Act’s protections, making the employee terminations unlawful.