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NLRB Holds That a Jimmy John’s Franchisee had Unfair Labor Practices, Protects Employees’ Free Speech

Article by Laura Benson

On April 21, 2014, the National Labor Relations Board (NLRB) held that a franchisee of the Jimmy John’s sandwich chain committed unfair labor practices by:

  1. Discharging six employees
  2. Issuing written warnings to three employees who participated in a public campaign in which they complained about the company’s employee sick leave policy
  3. Removing and encouraging the removal of union postings and posters within the Jimmy John’s stores that pertained to the sick leave policy
  4. Disparaging union supporters

The NLRB decision ordered the franchisee to cease and desist disparaging or promoting the disparagement of pro-union workers. Additionally, the decision required the franchisee to offer reinstatement for discharged employees, rescind each disputed written warning, and provide full back-pay to each employee for lost earnings and/or other benefits.

The franchisee, MikLin Enterprises, Inc., operates 10 Jimmy John’s shops in the Minneapolis-St. Paul area. Industrial Workers of the World had been involved in a campaign to unionize the shops in that area in 2010. As part of that campaign, pro-union workers disputed the franchisee’s sick leave policy, since MikLin did not provide paid sick leave and required employees to find replacements when they were ill and unable to work. Industrial Workers of the World lost their election to unionize the shops in October 2010. In March 2011, MikLin declined to provide sick leave or to change its sick leave policy. In response, pro-union employees placed posters near the ten shops and around the area displaying two identical Jimmy John’s sandwiches side by side. The left-side sandwich was described as having been made by a healthy worker, the right-side sandwich by a sick worker. “Can’t tell the difference?” the poster said. “That’s too bad because Jimmy John’s workers don’t get paid sick days.”

The franchisee acted immediately to remove the signs posted on general community boards inside the Jimmy John’s shops, as well as in surrounding areas. The franchisee additionally promoted the removal of these posters by other workers. Two days later, six employees involved in the postings were fired and three others received written warnings. In a publicly accessible Facebook page titled, “Jimmy John’s Anti-Union Facebook page,” an Assistant Manager at one of MikLin’s stores posted a pro-union employee’s telephone number and suggested that Facebook members text him to “let him know how they feel.”

In response to their discharge of six employees and their issue of written warnings to three employees, MikLin argued that the “posters are false and misleading at best, and in the view of our company, they are defamatory, disparaging, and dishonest.” Nonetheless, the NLRB held that the employees’ activities were protected because it was part of an ongoing labor dispute. Despite the poster’s exaggerated claim that workers were not permitted sick leave and could make customers sick, the NLRB held that this language was “protected hyperbole” as “any person viewing the posters … would reasonably understand that the motive for the communications was to garner support for the campaign to improve the employees’ terms and conditions of employment.”

The NLRB’s decision makes clear that speech arising from labor disputes is protected so long as it is not “so disloyal, reckless, or maliciously untrue [as] to lose the Act’s protection.” Even if an employer believes that conduct is malicious and harmful to their business, the employer must establish through “clear and convincing evidence” that the accused party realized the statement was false or that the party entertained serious doubt as to the truth of the statement for it to be classified as unprotected speech. Furthermore, the NLRB’s decision also demonstrates that if a business generally allows persons to post on community boards inside their establishment, they may not prohibit employees from posting work-related signs on that board or remove such signs, so long as it qualifies as protected speech.