Eighth Circuit Affirms NLRB Decision in MikLin Enterprises, Inc. d/b/a Jimmy John’s

In a 2-1 decision issued by the Eighth Circuit on March 25, the Court upheld Region 18’s issuance of a complaint against MikLin Enterprises, Inc. d/b/a Jimmy John’s and the Board’s decision in this matter. The company, a franchisee which owns and operates Jimmy John’s stores in Minneapolis and St. Louis Park, Minnesota, fired six employees and issued final written warnings to three other employees, all of whom were involved in a campaign to convince the company to grant paid sick leave for employees of the ten area locations.
The employees’ campaign included posting flyers and issuing press releases, asking the public to contact MikLin’s owner to "Help Jimmy John’s Workers Win Sick Days." The company argued that the employees’ posters were untrue because they claimed employees are not permitted to call in sick and therefore the employees engaged in unprotected conduct.  While the court majority acknowledged that the statement was not literally true, in fact in context it was clear that employees were protesting the lack of paid sick leave and the fact that if employees called in sick without finding their own replacements, they would be disciplined.
The Court majority also rejected MikLin’s argument that the posters lost protection because they disparaged the company’s product, when the posters contained pictures of two sandwiches side-by-side and above one was the label "Your Sandwich Made By A healthy Jimmy John's Worker," and above the other was the label "Your Sandwich Made By A Sick Jimmy John’s Worker," with additional language about the lack of paid sick leave and their hope that customers’ immune systems were ready for the sandwich test.  The Court majority found that the employees did not lose the protection of the Act.