Last March, Erik Forman was fired, along with five of his friends, from his job at a Jimmy John's sandwich shop in Minneapolis. A delivery man, Forman says he loved the work almost as much as he hated the company. More than a year later, he and his friends are still fighting to get back on the payroll and pick up their next shifts.
"For us, it's bigger than Jimmy John's, and it's bigger than our minimum wage jobs," Forman, 27, says. "We want go back there to do what we started to do."
What Forman and his friends had started to do was organize as a union with the Industrial Workers of the World (IWW), a labor group well to the left of most traditional American unions. With many of them working for around minimum wage, they felt the pay was too low and the benefits too skimpy. But Jimmy John's franchises, like virtually all fast-food restaurants in the U.S., are union-free. The IWW narrowly lost an election for representation at 10 Jimmy John's. Amidst a very public and ugly spat between employees and managers over the shops' sick-day policy, six workers were given their walking papers.
Forman and his colleagues claimed they'd been illegally fired, and last month a federal administrative law judge agreed. In an April 20 ruling not commonly associated with the fast-food industry, the judge ordered Jimmy John's to reinstate the workers at the sandwich shop, with backpay.
Nonetheless, it could still be months before Forman is delivering turkey sandwiches again, if ever. The Jimmy John's franchise company, MikLin Enterprises, says it plans on appealing the ruling. The process could drag on for years.
"The six MikLin employees were discharged in March 2011 because of their malicious actions to disparage Jimmy John’s and its products, not because of their union organizing activity," the company, which runs 10 franchises in the Minneapolis area, said in a statement. Champaign, Ill.-based Jimmy John's, which has more than 1,200 stores, said through a spokeswoman that it doesn't comment on litigation.
The IWW had started its campaign to organize MikLin's stores back in 2007, according to court documents. Workers voted in a representation election in the fall of 2010, with the union narrowly losing 87 to 85. The IWW claimed the company had unfairly swayed the vote, and the union was allowed to file a petition for a rerun election. But the second election would never happen.
As the campaign escalated, pro-union workers took on management over the company's sick-day policy. Like at many restaurants, the Jimmy John's workers had to find their own replacements if they wanted to call in sick, and they wouldn't get paid for the day. If they couldn't find someone to fill in, they were assigned demerits according to the company's disciplinary system for attendance. Believing this system to be unjust, Forman and his colleagues decided to make the public aware of it. That's where the company's claims of disparagement come in.
The workers hung posters on community bulletin boards that included two identical photos of a sandwich. Under one of them: "Your sandwich made by a healthy Jimmy John's worker." Under the other: "Your sandwich made by a sick Jimmy John's worker."
Beneath, it 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." When the company didn't agree to grant paid sick days, the workers plastered the posters on lamposts, trash cans and mailboxes throughout the neighborhood.
Not surprisingly, the dispute also spilled over onto Facebook, where a rank-and-file worker at one of the Jimmy John's had established an anti-union page that was open to the public. An assistant manager at one of the stores wrote "fuck you" on the page to a pro-union worker, and also made a mocking reference to his apparent "unibrow" ("lolz," she added). Rob Mulligan, one of the franchisees, encouraged workers on the page to tear down the sick-day posters, according to court documents.
The six workers deemed the ringleaders of the poster campaign were fired in March 2011, effectively a death knell for the union drive. (The workers weren't all employed at the same Jimmy John's location but had been part of the same union effort.) In a disciplinary notice given to some workers, the company deemed the "widespread malicious distribution" of the posters an effort "to harm the company and to injure its business and reputation and that of the owners."
In his ruling last month, Arthur J. Amchan, an administrative law judge for the National Labor Relations Board (NLRB) -- the federal agency that enforces labor law and mediates between companies and unions -- found that the hanging of sick-day posters amounts to "protected" activity under the law because workers were in the midst of a labor dispute. Firing the six workers was illegal, he said. As for the sick-day issue more generally, Amchan wrote that "the lack of paid sick leave provides a powerful economic incentive for employees to work when ill and to conceal illness."
"The decision is not a huge surprise for us," says Tim Louris, pro-bono counsel for the workers. "We've been saying all along that these employees were well within their rights taking their sick-day campaign to the public."
Finding new work after Jimmy John's wasn't easy for any of them, Forman says. He has a degree from Macalester College, a liberal arts school, but hasn't found much work outside of the low-paying service industry. He's been pouring much of his energy into labor activism, he says, still hopeful that he'll unionize Jimmy John's.
"Everyone is trying to get by," he says of his colleagues. "At this point, just about everybody has found something [for work]. Everyone is still broke, but we're scraping by like millions of other people in the industry. It was absolutely worth it and none of us regret it."
Micah, another one of the fired workers, says he found a similarly low-paying job in the retail industry. The 24-year-old also has a degree, from the University of Minnesota, but he says he hasn't been able to find a typical post-college job since his graduation in 2010, either. He went 10 months without a job after getting fired from Jimmy John's, where he earned $7.50 an hour.
"The retail gig is alright, it's a lot more decent than Jimmy John's," says Micah, asking that his last name not be used so as not to jeopardize the new job. "But sick days, low pay -- the issues are universal."
Forman says after the recent ruling he headed to Jimmy John's to meet with his boss, only to be rebuffed and ordered off the property. He says he expects the company will fight the reinstatement order until the very end. Still, he thinks that he and his friends will ultimately prevail, and that someday they'll all be slinging sandwiches again.
"We're making tentative plans to work at Jimmy John's in 2013 or 2014," he says. "I'm clearing my schedule."
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Posted: 05/01/2012 12:17 pm Updated: 05/01/2012 12:25 pm