MikLin Enterprises, Inc. v. NLRB

MikLin Enterprises, Inc. (MikLin) (plaintiff) operated 10 Jimmy John’s sandwich-shop franchises in Minneapolis. MikLin’s policy was that employees could call out sick, but they needed to find workers to cover their shifts. Sick time was unpaid. MikLin’s employees wanted to force their employer to offer paid sick leave. To accomplish this goal, some employees began a public campaign. First, employees timed their initial attack to coincide with flu season. The employees posted flyers on bulletin boards in Jimmy John’s locations that had two sandwiches that appeared identical, with purportedly one made by a healthy employee and one by a sick employee. The text on the poster asked if customers could tell the difference and raised concern that customers’ immune systems were going to endure the sandwich test. The poster falsely claimed that employees could not call out sick. After store managers took the posters down, the employees moved to their next attack, sending the poster, a press release, and a letter to over 100 press outlets. The letter contained false claims that health-code violations were a daily occurrence and MikLin was putting customers’ health at risk. The press release and letter threatened that if demands were not met, the employees would cover the city with thousands of posters. The employees acted on this threat, and they added coowner Robert Mulligan’s personal phone number to the flyers, which instructed people to call him. Mulligan was overwhelmed with calls from people who were afraid to eat at Jimmy John’s. After this, six employees responsible for the attack were terminated, and three others who assisted received written warnings. The discharged employees appealed to the National Labor Relations Board (the board) (defendant), which ruled that MikLin had transgressed the National Labor Relations Act (the act). The administrative-law judge determined that the act protected concerted activity related to labor disputes that was not disloyal, maliciously untrue, or malicious in motivation, none of which the judge felt was true in this case. A divided panel of the board affirmed. Jimmy John’s sought review, and the board filed a cross-petition to enforce the order. After a divided panel of the Eighth Circuit enforced the entire order, the Eighth Circuit granted en banc review.