Posted on April 30, 2012 by Marylee Abrams

More Than Sandwiches Being Served at Jimmy John's: Chapter 2

The local Minneapolis office of the NLRB issued a decision last week, finding a Jimmy John’s franchisee illegally fired six employees for protected activity. This case is a follow-up to a blog I posted last fall about a failed union organizing campaign at Jimmy John’s, which resulted in a settlement agreement and a rerun election.

Chapter 2 of the sandwich saga involved the termination of six employees for posting 3,000 notices near ten Jimmy John’s sandwich shops owned by Milkin Enterprises. The employees had asked the employer to provide paid sick leave, and to change a sick leave policy that required employees to find replacements when they are ill and unable to work. Milkin Enterprises rejected the request, and the employees posted notices near ten sandwich shops warning customers their sandwiches could be made by ill employees. The postings included pictures of two identical sandwiches, and asked:

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…

HELP JIMMY JOHN’S WORKERS WIN SICK DAYS
SUPPORT US ONLINE AT www.jimmyjohnsworkers.org

The Judge ruled the employees’ activity was protected activity under the NLRA, as it was part of an on-going labor dispute. The employer was ordered to reinstate the employees with full back-pay and any other lost benefits.

The employer’s case was argued byMichael Landrum and Mary Dobbins of Landrum Dobbins. Mary is an accomplished law school classmate of mine. She expressed her disappointment over the result stating, “We believe the conduct of the employees was egregious and should not be protected.“

Under these circumstances, the employees had no concern for the business enterprise, or the impact the postings may have on patrons of Jimmy John’s. Instead their only concern was improving their working conditions. This is a really tough spot for employers today. The NLRB pendulum has shifted so far in the direction of protecting employee speech, it leaves little room for employers to protect their businesses. The next step is a review by the full Board. I will keep you posted.
 

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Posted on December 8, 2011 by Marylee Abrams

Court Rules: Governor Dayton Can't Help Organize a Union Through Executive Order

Ramsey County Judge Dale Lindman issued a temporary restraining order this week, halting Minnesota Governor Dayton’s attempt to organize licensed daycare workers via Executive Order. Judge Lindman stated after three hours of hearing, "If unionization of day care is to become the law of Minnesota, it must first be submitted to the lawmaking body of the state." His order remains in effect at least until another court hearing scheduled on Jan. 16, 2012.

What is so unique about the case is that Governor Dayton tried to use his Executive Order powers, to organize the daycare workers. This is contrary to the typical union election which begins with employee interest, followed by union campaigning, and then if there is sufficient support, the Union seeks an election. Minnesota employees have had the right to form and join unions, and enjoyed collective bargaining rights over terms and conditions of employment since the adoption of PELRA back in 1971. (Minn. Stat. 179A. et seq.) This is the first time in my 29 years practicing labor and employment law, where I have seen a sitting Governor call for a union election.

Governor Dayton’s unionizing efforts only applied to the 4,300 licensed family daycare providers who participate in a state subsidized child care program. Judge Lindman indicated an election that leaves out most of the state’s 11,000 licensed providers would be “very harmful,” although he indicated he was not ruling on the merits of the case.

Tim Pugmire, writing for MPR News reported, “Solicitor General Alan Gilbert, who represented Dayton in the hearing, argued that the Executive Order was not an attempt to make law. Gilbert said the Governor was simply trying to enable a dialog about whether child care providers should organize a union.” Tom Copeland, writing for SEIU, one of the unions behind the organizing push, suggests this is much more than an attempt to “enable a dialogue.” In an open letter Copeland used typical union rhetoric stating: 

These two unions are working cooperatively for the purpose of bringing new resources and benefits to the family child care field. Their goals include an increase in state subsidy rates, uniform interpretation of licensing rules, policies and procedures, access to affordable health insurance, and more. Successful organizing by these two unions in Delaware, Illinois, Iowa, Kansas, Maine, Maryland, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Washington, Wisconsin, and other states have generated tens of millions of dollars for increased subsidies for low income parents, lower parent co-payments, as well as increased access to training, and a strong voice for family child care at the state level.

There is already a legislative avenue in place if Minnesota employees want to organize and join a union. Licensed daycare providers should follow the same route other employees have taken since 1971. The Governor should not be the front man for AFSCME and SEIU, or their attempts to further their union organizing efforts.

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