Jimmy John’s franchisee MikLin Enterprises, Inc. does not offer its employees sick leave. Instead, if an employee is sick, he or she can take time off only after ensuring that his or her shift is covered. Some employees do not like having the burden placed on them to find replacements and would rather be allowed to just call in sick and have the company scramble to re-staff the shift. A few years ago, the Jimmy John’s Workers Union was formed, but employees voted against unionization. Undeterred, the union remained active and, similar to what is trending throughout the fast food industry, the union sought to bargain with the company despite not representing the employees.
One item that the union bargained for was sick days. When the company refused to bargain with the union – because the union did not represent the employees, duh – the union posted fliers in and around the restaurants that pictured two identical sandwiches side-by-side above the message “Can’t Tell the Difference?” The flier labeled one sandwich as being made by a healthy worker and one by a sick worker, and said employees don’t get paid sick days and (misleadingly) cannot even call in sick. The employees responsible for the fliers were terminated.
An Administrative Law Judge found the discharges violated Sections 8(a)(1) and (3) of the National Labor Relations Act, which prohibit discrimination due to union activity and forbids interference with an employee’s NLRA-protected activity, respectfully. The Board affirmed the holding because the posters did not allege any customers had been sickened by contaminated food, rather, they “only suggest the realistic potential for illness resulting from the handling of food by workers who come to work while sick.” The lone management-side Board Member who heard the case dissented and opined that it was inaccurate to claim that employees could not take any time off for illness, the posters exaggerated the potential for any food contamination, and the union failed to show any remotely reasonable correlation between the alleged health problem and the employer’s lack of sick leave.