In
a decision emblematic of the new climate of Trumpian governance, a
federal appeals court in St. Louis ruled on July 3 that it is
acceptable for the boss of a fast-food chain to fire workers for the
sin of being “disloyal.”
The
U.S. Court of Appeals for the Eighth Circuit reversed a
ruling issued by the Obama-era National Labor Relations Board (NLRB)
in a case spawned by a labor organizing drive at the Jimmy John’s
fast-food chain. The court held that Miklin Enterprises, the owner of
Jimmy John’s franchises in Minneapolis, had the right to fire six
pro-union advocates because they demonstrated “disloyalty” by
distributing flyers in 2011 that implied the company was selling
unsafe food contaminated by employees obliged to work while sick with
the flu.
The
organizers designed and distributed memes that showed images of
identical Jimmy John's sandwiches. One was “made by a healthy
Jimmy John’s worker,” the other by a “sick” worker. “Can’t
tell the different?” the poster continued. “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.”
The
Minneapolis union campaign, launched by the Industrial Workers of the
World (IWW or ‘Wobblies’), has been high-profile from the start.
First erupting in 2010, the effort quickly developed into an intense
legal fight at the NLRB before advancing to the federal courts. It
even spilled over into the U.S. Congress in 2014 with
the revelation that
Jimmy John’s routinely required its low-paid sandwich makers to
sign questionable “non-compete agreements.”
Threatened
with punitive action by the attorneys general in several states,
Jimmy John’s rescinded its
non-compete policies in 2016, but not before the company’s
reputation had been tarnished.
Like
the non-compete agreements, the July 3 court decision is an
unwarranted attack on labor rights, says William B. Gould IV, a labor
law professor at Stanford University and former chairman of the
federal labor board.
“The
first thing that strikes you is how archaic this feels,” Gould
tells In These Times. “The legal basis is from a case in the 1950s
when people had a whole different concept of loyalty owed to their
employer.
“In
those days,” Gould continues, “the assumption was that loyalty
was a two-way street: You were loyal to the company and the company
was loyal to you. Now, with Uber and Lyft and the others, companies
are even refusing to admit that you are one of their employees, so
there isn’t much talk about loyalty owed to the employer anymore.”
The
July 3 decision turns on the interpretation of ‘loyalty’
articulated in the 1953 Supreme Court case National
Labor Relations Board v. Local Union 1229 International Brotherhood
of Electrical Workers,
known as “Jefferson Standard” for short. Earlier in the process
of the more recent NLRB case, the labor agency’s Obama appointees
had ruled that the firing of the workers was an illegal violation of
their rights to form a union. But the appeals court decision reversed
that decision, asserting that the disloyalty displayed by the
pamphlets gave the employer the right to fire the workers, Gould
explains.
The
court stated, “(W)hile an employee's subjective intent is of course
relevant to the disloyalty inquiry—"sharp, public, disparaging
attack" suggests an intent to harm the Jefferson
Standard principle
includes an objective component that focuses, not on the
employee's purpose,
but on the means used—whether
the disparaging attack was ‘reasonably calculated to harm the
company's reputation and reduce its income,’ to such an extent that
it was harmful, indefensible disparagement of the employer or its
product.”
Erik
Forman was fired six years ago for organizing a union at a Jimmy
John’s in Minneapolis. He told In
These Times,
“The big takeaway for me is that this ruling means workers do not
have the right to tell the truth about their employer,” he said,
adding: “The ruling is incredibly slanted towards the employer.
They frame our campaign for sick days as an attack on the employer
and turn logic on its head. We told the truth about the risk to the
public.”
“Employers'
motivation wasn't just to stop the sick-day campaign,” Forman
continued. “It was to stop our unionization effort.”
According
to Gould, “This case comes from the 8th Circuit which is the most
conservative in the country. It’s the worst circuit in the country
for a labor union, or for labor rights.”
The
ultra-conservative nature of the ruling may have the unintended
benefit of limiting its applicability to workers other than the
Minneapolis Jimmy John’s employees, the former NLRB chairman adds.
Other judicial districts may not be eager to follow its lead because
many traditionally defer to the NLRB in matters of this kind, he
says, and few employers will want to take the legal risk of relying
on a circuit court ruling that has not been confirmed by the Supreme
Court.
The
reversal of the Obama-era NLRB decision mirrors action in
Congress, where several measures are under consideration to roll back
pro-worker measures adopted by the labor board during Obama’s
tenure. This week, the U.S. Senate is considering the nomination
of two Trump NLRB appointees, both of whom have been criticized as
anti-worker by the AFL-CIO.
Carmen
Spell, an NLRB representative at the agency’s Washington, D.C.
headquarters, would only comment that “(w)e are considering options
at this time” on how the agency will respond to the court ruling.
Jane
Hardey, a spokeswoman for Jimmy John’s, declined any comment,
asserting that the legal case involved only the Minneapolis franchise
owner, and did not involve the sandwich chain company itself. Hardey
did not respond to a request from In These Times for a telephone
interview with Jimmy John Liautard, the controversial founder of the
franchise.
According
to the Jimmy John’s web site, the rapidly growing chain currently
has 2,701 locations in 48 states. The number of employees is
estimated at over 100,000.
“The
fact that we were fired over six years ago in retaliation for union
organizing should tell everyone that you cannot rely on labor law in
this country,” says Forman. “Every single decision can now be
appealed up to a Trump Supreme Court. We need to find new ways of
building and exercising power on our own.”
>> The article above was written by Bruce Vail, and is reprinted from In These Times.
No comments:
Post a Comment