The National Labor Relations Board recently served up a decision that would have been pretty hard for one Jimmy John’s franchisee to swallow. In what may be the first example of a sandwich (or more specifically, a photo of a sandwich) launching a labor board case, the NLRB found in a 2-1 ruling that MikLin Enterprises Inc., which operates 10 Jimmy John’s restaurants in Minnesota, had violated Section 8 of the National Labor Relations Act by committing unfair labor practices against employees who protested against unpaid sick leave.
The trouble all began for MikLin when workers, with a letter from the Industrial Workers of the World, which shortly beforehand had tried and failed by a slim margin to unionize the Jimmy John’s restaurants, went to the franchisee and presented a request from the IWW to have a meeting with MikLin over the employees’ desire for paid sick days. If management didn’t grant the union a meeting, the letter said, the employees would start a poster campaign to protest the lack of paid leave.
When MikLin refused to meet, the employees put up posters at the franchisee’s Jimmy John’s locations and in public spaces near the stores showing photos of two identical sandwiches. The posters read that a healthy Jimmy John’s worker could have made one sandwich and a sick one could have made the other, with no difference visible to the customer.
The argument seems to be that without paid sick leave, sick sandwich makers will come into work and customers’ immune systems will have to “take the sandwich test” to find out if their food is crawling with germs. The posters then implored people to “help Jimmy John’s workers win sick days.” A few days after the posters went up, six of the employees involved were fired, and three were issued written warnings.
The majority in this board ruling looked at a previous case, Jefferson Standard, to decide whether the employees acted within the bounds of the NLRA when displaying their posters. The board members determined that the employees met the first requirement of the Jefferson Standard case to make the communication out of bounds, which was the relationship of communications to an ongoing labor dispute. The second requirement is that the communications be “so disloyal, reckless or maliciously untrue as to lose the Act’s protection.” For the majority, there was enough truth to the posters that this requirement was not met.
Lyle Shapiro, a shareholder at Richman Greer, told CorpCounsel.com that when unions get into the mix, generally employees get “broad rights to communicate and speak out.” At the same time, he stressed that the NLRB tends to delve pretty deeply into the facts of each specific case. “What this opinion emphasizes in my view,” he said, “is that when you’re falling under National Labor Relations Board review, it is a super, super fact-intensive analysis as to whether the speech or conduct is going to be protected or not.”
Certainly, the facts in this case got plenty of attention, particularly as the posters were analyzed line by line. The board members disagreed, for example, over a line that said: “Shoot, we can’t even call in sick.” The lone dissenter pointed out that Jimmy John’s employees can actually call in sick, provided they come up with a replacement to take over their shift. The board’s majority disagreed, saying the statement falls short of a falsehood as “the poster’s message involves the kind of hyperbole expected and tolerated in labor disputes.”
Employers and in-house attorneys can help their cases—or preferably avoid getting in trouble with the NLRB altogether—by exercising caution when it comes to employee discipline and employee speech, particularly when that person (germ-ridden sandwich maker or not) is working in conjunction with organized labor.
“The most important lesson is to have constant communication between business folks and the legal department before action is taken,” Shapiro recommended. “Once you take action, you can never take that back.” He added that companies also need to be “wary” of the trend within the current board to make rulings that lean toward stronger protections of employee speech and conduct.