According to the 8th Circuit Court of Appeals, MikLin, a family enterprise that owns and operates ten Jimmy John’s sandwich shops in the Minneapolis-St-Paul area, did not violate the NLRA when they fired six employees after several union sponsored attacks.
MikLin employees started an organizing campaign in 2007 seeking to be represented by the Industrial Workers of the World Union. In 2010, the IWW lost a Board-conducted election, but remained active with the employees. Paid sick leave was among the benefits most sought by the IWW for employees.
Union supporters strategically planned their attack against MikLin on this issue in January and February 2011, intentionally right around flu season. They took this issue public by posting flyers on community bulletin boards in MikLin stores picturing identical Jimmy John’s sandwiches, side-by-side. It labeled one as being made by a healthy Jimmy John’s worker, and the other by a sick Jimmy John’s worker. Below it asks the question, “Can’t tell the difference?” The poster additionally stated that workers don’t get paid sick days, and are not allowed to call in sick.
After MikLin managers removed these posters, the IWW issued press releases, asserting that the enterprise shops violated health codes nearly every day. Additionally, the IWW posted a new version of the poster, including the vice president’s personal phone number with instructions to call him. These posters were placed in several locations near the MikLin stores, and the vice president was flooded with phone calls for close to month by individuals concerned with the safety of the food served at the franchise shops.
As a result, MikLin fired six employees for participating in the attack, and issued three warnings to those who assisted. A NLRB Administrative Law Judge found that the messages on the posters were concerted, protected activity under Section 7 of the NLRA because they addressed an ongoing labor dispute between the enterprise and the Union, and therefore the employees were protected from discipline and firing because of their involvement with the creation and posting of the posters.
The 8th Circuit reversed the ALJ’s decision, stating that the messages expressed by the IWW were sufficiently disloyal to the enterprise to fall outside of the protections of Section 7 of the NLRA. While Section 7 protects employee communications to the public that are part of an ongoing labor dispute, those protections can be lost when the communications are so disloyal, reckless, or maliciously untrue.
The Appeals Court, here saw the attacks as both disloyal and maliciously untrue. The attacks could reasonably calculate significant injury to the company’s reputation and reduce its income. Both the posters and the press releases were used to convince the public that those Jimmy John’s stores were selling contaminated food, which would likely have a destructive impact on its business. Additionally, the court found that these posters attacked the enterprise’s image by stating that MikLin did not value their customers and employees were unable to call in sick.
Disloyalty is often a difficult principal to establish. Here, however, the employees’ attacks against the enterprise were so detrimentally disloyal and untrue as to provide cause for termination on those employees responsible for the attack, and discipline on those who assisted.
