Union ‘Attacks’ on Jimmy John’s Went Too Far, Court Says

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By Lawrence E. Dubé

A Jimmy John’s franchisee had the right to fire workers who used false and misleading claims about food safety to publicize a labor-management dispute, the U.S. Court of Appeals for the Eighth Circuit ruled July 3 ( MikLin Enters., Inc. v. NLRB , 2017 BL 229237, 8th Cir., No. 14-03099, 7/3/17 ).

The court disagreed with an earlier NLRB ruling and cautioned that the board was too protective of employee tactics that threatened serious harm to a company’s reputation.

The National Labor Relations Board said a leaflet suggesting a link between customer safety and franchisee MikLin Enterprises Inc.'s sick leave policies was legally protected, but eight appeals court judges agreed the message was sufficiently disloyal to take it outside the protection of the federal labor law. Two judges dissented.

The majority said the NLRB focused on the intentions of employees supporting an organizing campaign by the Industrial Workers of the World and didn’t adequately consider the “devastating” effects of making accusations that were false and “calculated.”

MikLin expressed satisfaction with the court ruling, saying in a statement “the attacks on its operation were made to hurt the Company, not simply to enlist the support of the public for a change in workplace policies.” A union representative was not immediately available for comment on the decision.

Leaflet Seen as Calculated Attack

MikLin operated Jimmy John’s sandwich shops in the Minneapolis-St. Paul area. The Jimmy John’s Workers Union, an Industrial Workers of the World affiliate, lost an October 2010 representation election but remained active among the employees. The union pressed MikLin to adopt workplace changes, including the introduction of paid sick days for employees.

Union supporters took the dispute public by posting in and near MikLin restaurants fliers that pictured identical sandwiches side-by-side above a message “Can’t Tell the Difference?” The flier labeled one sandwich as being made by a healthy worker and one by a sick worker, asserting that workers didn’t get paid sick days and couldn’t even call in sick.

MikLin fired six employees for participating in the publicity campaign. The NLRB found the discharges violated the National Labor Relations Act, and a three-judge panel of the Eighth Circuit backed the board in a 2016 decision. However, the appeals court vacated the panel ruling and reheard the case en banc.

The NLRB “fundamentally misconstrued” the law by holding that no act of employee disparagement of an employer could be considered outside the protection of the NLRA unless it was “maliciously motivated to harm the employer,” Judge James B. Loken wrote for the majority.

The board also should have considered the impact of the publicity campaign and the inaccuracy of flier’s assertion that Jimmy John’s sandwich makers were unable to call in sick, the court said. The “Act does not protect such calculated, devastating attacks upon an employer’s reputation and products.”

Michael A. Landrum of Landrum Dobbins LLC in Edina, Minn., argued for MikLin Enterprises Inc. NLRB attorney Joel A. Heller in Washington argued for the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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