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8th Circuit Rules for Employees in Jimmy John's NLRA Case

By Jonathan R. Tung, Esq. on April 04, 2016 | Last updated on March 21, 2019

The Eighth Circuit just upheld another NLRA ruling for workers who protested their employer's employment acts or policies. It looks like the end of the sandwich case that has ruffled a few feathers.

Increasingly, it appears that the NLRA has a lot of teeth, further frothing up the controversial debate as to what kind of legal protections employees enjoy when they actively publish negative publicity about their employers.

Jimmy John's Workers

The petitioner was MikLin which operated a Jimmy John's in the Minneapolis-St.Paul area. The local union sought MikLin requested that MikLin adopt changes to the employee's employment arrangement including adding in paid sick days for employees. MikLin initially dug in its heels.

Can't Tell the Difference?

At the same time, union supporters decided to add fuel to the fire by posting a flyer in and near Miklin restaurants. The flyer leads the viewer to conclude that customers run the risk of getting sick without even assuming that risk. It additionally read that workers did not get paid sick-leave and asked people to call-in and demand change.

MikLin Fires Six Employees

MikLin did what was expected and fired six employees for participating in the publicity stunt, but the worker's union filed suit. The administrative law judge concluded that the firings were in violation of the NLRA because the workers were retaliated against due to "union activity" and for NLRA-protected activity. Thus, the legal issue to be determined was whether such activities are covered under the NLRA.

A "Realistic Potential" for Illness

The NLRB quickly affirmed the ALJ's ruling 2-1. Appealing again, MikLin again reiterated the malicious and false nature of the flyer in suggesting that employees were not allowed to call in sick. But the Eighth Circuit concluded that the Board was well within its reasoning to conclude that employees were within the protected limitations. In its view, the employees did nothing more than to suggest the "realistic potential" for illness, and that because of this, it would defer to the NLRB because the flyer was "not so disloyal as to lose protection under the [NLRA]."

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