The poster read, “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.”
With the text was an image of two identical pictures of sandwiches, claiming that one was made by a healthy worker and the other by a sick sandwich maker. The depictions flew in the face of the company’s tagline of “Freaky Fresh.”
Six union employees working for MikLin Enterprises, a franchisor that owns 10 sandwich shops, circulated the notices. Timed for the flu season of 2011, the workers were protesting the company’s sick leave policy. They were not only disputing the mandate to find replacements to take their shifts when ill, but also claiming that the policy put customers’ health at risk.
The Industrial Workers of the World had the posters and press releases distributed to more than 100 local and national news organizations. The union then doubled down, threatening wider release if their demands went ignored. MikLin responded by firing the employees responsible for distributing the negative material.
The National Labor Relations Board ruled that the Minnesota-based company violated protections for employee communications to the public involving ongoing labor disputes. A three-judge appeals panel affirmed the NLRB’s decision for the workers who were part of an IWW unionization drive in MikLin-owned shops.
However, the full 8th U.S. Circuit Court of Appeals reversed the decision, concluding that the sheer disloyalty shown by the poster attack was not protected by federal labor law.