There are plenty of categories that constitute protected speech under the National Labor Relations Act, but actively telling customers of a food chain that employees are sick around food? Yes, says the National Labor Relations Board (NLRB), that can be protected speech as well.

On August 21, the NLRB ordered a Minnesota Jimmy John’s franchise to rehire workers that had put up posters suggesting sandwiches were made by sick workers, calling their protests protected speech. The franchise was also found to be promoting anti-union activity in other ways as well.

As part of a 2011 protest organized through the Industrial Workers of the World union, six workers had posted signs around Minneapolis and St. Louis Park, Minnesota, protesting their lack of sick days. On the posters, the workers posted two identical pictures of a sandwich, claiming one was made by a healthy worker, and one was made by a sick worker.

“Can’t tell the difference?” the poster read. “That’s too bad because Jimmy John’s workers don’t get paid sick days. Shoot, we can’t even call in sick. We hope your immune system is ready because you’re about to take the sandwich test.”



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MikLin Enterprises, Inc., the owner of the Jimmy John’s franchises in question, then fired the six employees for  painting the company in a false light. “These posters are false and misleading at best, and in the view of our company, they are defamatory, disparaging, and dishonest,” he told Twin Cities Business in 2011.

However, the NLRB disagreed. Although companies may punish employees for posting untrue or reckless facts, the Board said that the employees claim they lacked sick days was “factually accurate” and the posters “demonstrated that they were motivated by a sincere desire to improve their terms and conditions of employment.”

Bloomberg also reports that the NLRB found fault with the franchisee in other ways, including encouraging its employees to disparage a union supporter on Facebook.