A federal administrative law judge has ruled that a Twin Cities Jimmy John's franchisee violated the union organizing rights of six employees by firing them last year after they publicly protested the restaurants' sick leave policy.

The workers, who were all active in an attempt to unionize 10 local Jimmy John's, must be reinstated to their jobs and given back pay, according to an order late Friday by the Washington, D.C.,-based judge, Arthur Amchan.

"It's certainly a victory," said Erik Forman, one of the fired workers.

MikLin Enterprises, owner of the 10 Jimmy John's, said in an e-mail that, "we respectfully disagree with the [judge's] findings ... and we will decide our next steps shortly."

MikLin, owned by Mike Mulligan and his son Rob Mulligan, can appeal the decision, and Forman said he thinks the company will do so. Reinstatement of the fired workers would be postponed pending an appeal.

Amchan upheld much of a National Labor Relations Board complaint against MikLin. The board's Minneapolis office pressed the complaint after investigating unfair labor practice charges filed by the union against MikLin.

David Boehnke, shown in 2010 at the sandwich shop, was among the workers that a judge said deserved reinstatement and back pay.
Glen Stubbe, Star Tribune
David Boehnke, shown in 2010 at the sandwich shop, was among the workers that a judge said deserved reinstatement and back pay.

The judge's ruling is the latest turn in an unusual unionization battle pitting the Industrial Workers of the World against the popular sandwich chain.

In October 2010, the IWW narrowly lost a union election to represent MikLin's workers -- 87-85. It was a rare attempt to organize the fast-food industry, conducted by a union outside of the mainstream labor movement and known for grass-roots militancy.

After the election, pro-union workers continued their organizing efforts at Jimmy John's, focusing on MikLin's lack of paid sick leave. MikLin's employees were and still are subject to discipline if they call in sick without finding a replacement, according to Amchan's ruling.

MikLin in an e-mail said its absentee policies are fair and typical for the quick-serve food industry, and called "patently false" any claims that employees are required to work while sick.

Union activists claim that MikLin's sick leave policy gave ill workers an economic incentive to show up for work, thus jeopardizing public health. Last spring, activist workers put up posters near Jimmy John's outlets, implying that sick employees might be making sandwiches.

The posters featured pictures of two sandwiches with the text, "Can't tell the difference? That's too bad because Jimmy John's workers don't get paid sick days .... We hope your immune system is ready, because you are about to take the sandwich test."

MikLin fired six workers for a "malicious" effort to damage the Jimmy John's brand. But Amchan ruled that the posters were protected speech under the National Labor Relations Act. He also concluded that Rob Mulligan violated labor law by encouraging employees to tear down the posters.

MikLin can appeal the administrative law judge's decision to the full board of the National Labor Relations Board in Washington D.C. If the board rules in the workers' favor, the company can then appeal to a federal court.

The appeals process could take one to two years to play out. "It's pretty frustrating," Forman said.

Mike Hughlett • 612-673-7003