If employees badmouth your company — even in a way that hurts business — you’ve got to grin and bear it if the criticisms are made under the guise of attempting to improve work conditions.
That was the takeaway from a recent ruling by a National Labor Relations Board (NLRB) judge against a Jimmy John’s sandwich shop franchisee.
The Industrial Workers of the World, a union, filed charges against MikLin Enterprises, Inc., which operates 10 Jimmy John’s sandwich shops in the Minneapolis-St. Paul, MN area.
The union claimed MikLin engaged in unfair labor practices when it fired six of its sandwich shop employees and reprimanded three others who were involved in a poster campaign to get the franchisee to provide workers paid sick leave.
‘… about to take the sandwich test …’
This all started when a group of Jimmy John’s employees asked MikLin for sick leave benefits.
After the employer declined, employees posted notices near its 10 restaurants.
The poster depicted two identical sandwiches sitting next to each other.
Displayed over one were the words: “Your sandwich made by a HEALTHY Jimmy John’s worker.”
And over the other: “Your sandwich made by a SICK Jimmy John’s worker.”
Underneath the photos was “Can’t tell the difference? 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 …”
The posters then asked members of the public to call the business owner (phone number included) and say they didn’t want sick workers making their sandwiches.
Naturally, MikLin wasn’t a fan of the posters, which threatened to put a dent in its business. So it took them down and took action against the employees responsible.
Soon after, the union, which had been trying to unionize the shops, filed charges with the NLRB.
Judge: Posters weren’t inaccurate or reckless
An administrative law judge for the NLRB agreed with the union that MikLin’s actions against the employees were unfair. As a result, the judge ordered MikLin to reinstate the six terminated employees with back pay, and rescind all punishments and written warnings issued to the other workers.
MikLin claimed the workers intended to harm its business, so its actions were justified.
The judge said employees can lose the protection of the NLRB if their communications to the public are “reckless, or maliciously untrue” — but he said neither was the case here.
He said the claim on the posters — that workers lacked paid sick days — was accurate and there was no evidence the workers acted recklessly. Instead, he said they demonstrated that they were simply trying to improve the terms and conditions of their employment — which are protected activities.
In addition to placing all the involved employees back into good standing with the company, MikLin was also forced to display a posted notice at all of its locations explaining workers rights to:
- form, join or assist a union
- choose representatives to bargain on their behalf
- act together with other employees for their benefit and protection, and
- choose not to engage in any of these protected activities.
It also had to explain MikLin’s actions to make all the employees responsible for the sick leave posters whole.
Case: MikLin Enterprises, Inc. and Industrial Workers of the World