The Eighth Circuit Court of
Appeals has upheld a determination by the National Labor Relations Board which
held that a Minnesota Jimmy John’s franchise violated federal labor law during
a union attempt to organize its employees.
What did the employer do to get in such trouble with the NLRB, you
ask? MikLin Enterprises Inc., the
franchisee, was found guilty of removing posters placed near its restaurant
entrances by certain pro-union employees and terminating the employees
responsible for the postings. Why would
an employer get so upset about a poster, you ask? The posters in this case complained that
employees were not paid sick leave and, therefore, implied that Jimmy John’s
sandwiches were being prepared by sick employees who might get customers
sick. Specifically, the posters stated
to potential customers approaching the restaurant: “We Hope Your Immune System
Is Ready Because You’re About To Take the Sandwich Test ...” Clearly, the
posters were deliberately designed to drive customers away and harm the Jimmy
John’s franchise’s reputation and business.
The case raises the question: Just how far can employees go in the name
of promoting a union? The answer from
the NLRB and, on appeal, the 8th Circuit? Pretty far!
At least one appellate judge dissented, arguing that such “damaging
disparagement” crossed the line of what federal labor law ought to protect as
“concerted activity” in support of a union.
Many employers and people in general, probably agree with the dissenting
judge!
Questions? Contact Attorney James Sherman at (952) 746-1700 or jasherman@wesselssherman.com.
