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Jimmy John s Complaint

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					                        UNITED STATES OF AMERICA
                BEFORE THE NATIONAL LABOR RELATIONS BOARD
                              Eighteenth Region


MIKLIN ENTERPRISES, INC.
d/b/a JIMMY JOHN’S

                                                Cases 18-CA-19707
                   and                                18-CA-19727
                                                      18-CA-19760


INDUSTRIAL WORKERS OF THE
WORLD



                     ORDER CONSOLIDATING CASES,
             CONSOLIDATED COMPLAINT AND NOTICE OF HEARING


      Industrial Workers of the World, Twin Cities General Membership Branch, herein

called by its correct name, Industrial Workers of the World, has charged in Cases

18-CA-19707 and 18-CA-19760, and Jimmy John’s Workers Union, herein also called

by its correct name, Industrial Workers of the World, and hereinafter called the Union,

has charged in Case 18-CA-19727, that MikLin Enterprises, Inc. d/b/a Jimmy John's,

herein called Respondent, has been engaging in unfair labor practices as set forth in the

National Labor Relations Act, 29 U.S.C. Sec. 151, et seq., herein called the Act. Based

thereon, and in order to avoid unnecessary costs or delay, the Acting General Counsel,

by the undersigned, pursuant to Section 102.33 of the Rules and Regulations of the

National Labor Relations Board, herein called the Board, ORDERS that these cases are

consolidated.
      These cases having been consolidated, the Acting General Counsel, by the

undersigned, pursuant to Section 10(b) of the Act and Section 102.15 of the Rules and

Regulations of the Board, issues this Order Consolidating Cases, Consolidated

Complaint and Notice of Hearing and alleges as follows:

      1.(a) The charge in Case 18-CA-19707 was filed by the Union on March 7, 2011,

and a copy was served on Respondent by first class mail on about the same date.

      (b) The charge in Case 18-CA-19727 was filed by the Union on March 24, 2011,

and a copy was served on Respondent by first class mail on about the same date.

      (c) The charge in Case 18-CA-19760 was filed by the Union on April 22, 2011,

and a copy was served on Respondent by first class mail on about the same date.

      2.(a) At all material times, Respondent, a Minnesota corporation with offices and

places of business in Minneapolis, Minnesota, has been engaged in the operation of

retail sandwich shops.

      (b) During the calendar year ending December 31, 2010, Respondent, in

conducting its business operations described above in subparagraph (a), derived gross

revenues in excess of $500,000.

      (c) During the calendar year ending December 31, 2010, Respondent, in

conducting its business operations described above in subparagraph (a), purchased

and received at its Minneapolis, Minnesota facilities goods valued in excess of $50,000

directly from points located outside the State of Minnesota.

      (d) At all material times, Respondent has been an employer engaged in

commerce within the meaning of Section 2(2), (6) and (7) of the Act.




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       3. At all material times, the Union has been a labor organization within the

meaning of Section 2(5) of the Act.

       4. At all material times, the following individuals held the positions set forth

opposite their respective names and have been supervisors of Respondent within the

meaning of Section 2(11) of the Act and agents of Respondent within the meaning of

Section 2(13) of the Act:

          Jason Effertz            –       Area Manager

          Melissa Erickson         –       General Manager, Franklin store

          Eddie Guererro           –       Assistant Manager, Oak Street store

          Dylan Hiler              –       General Manager, Calhoun store

          Michael Mulligan         –       Co-owner

          Rob Mulligan             –       Co-owner

          Rene Nichols             –       Assistant Manager, Skyway store

       5. Since about October 23, 2010, Respondent has interfered with, restrained

and coerced employees in the exercise of their Section 7 rights by engaging in the

following acts and conduct:

       (a) On about October 23, 2010, Respondent, through its Assistant Manager

Eddie Guerrero, in a posting on an employee’s Facebook website page called “Jimmy

John’s Anti Union,” herein called the Website, threatened a mass firing of employees

because of their Union or other concerted protected activities.

       (b) On about January 27, 2011, Respondent, through its Co-owner Michael

Mulligan, at its Dinkytown store, interrogated an employee about employees’ Union or

other concerted protected activities.




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          (c) On about February 10, 2011, Respondent, through its Area Manager Jason

Effertz, removed Union postings from its Riverside store.

          (d) On about March 20, 2011, Respondent, through its Assistant Manager Rene

Nichols, coerced a pro-Union employee by posting the employee’s telephone number

on the Website and soliciting other employees to call or text the employee.

          (e) On about March 20, 2011, in the same Website posting described above in

subparagraph (d), Respondent, through its Assistant Manager Rene Nichols,

disparaged the same employee described above in subparagraph (d).

          (f) On about March 20, 2011, Respondent, through its Co-owner Rob Mulligan,

in a posting on the Website, disparaged the same employee described above in

subparagraph (d).

          (g) On about March 20, 2011, in the same Website posting described above in

subparagraph (f), Respondent, through its Co-owner Rob Mulligan, solicited and

encouraged employees to remove Union posters protesting Respondent’s sick leave

policy.

          (h) On about March 20, 2011, Respondent, through its Assistant Manager Eddie

Guerrero, in a posting on the Website, disparaged the employee described above in

subparagraph (d).

          (i) On about March 31, 2011, Respondent, through its General Manager Melissa

Erickson and Assistant Manager Eddie Guerrero, in a posting on the Website,

disparaged the employee described above in subparagraph (d).




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       (j) On about March 31, 2011, Respondent, through its Assistant Manager Rene

Nichols, in a posting on the Website, disparaged the employee described above in

subparagraph (d).

       6.(a) On about March 22 or 23, 2011, Respondent terminated employees Max

Specktor, David Boehnke, Davis Ritsema, Mike Wilklow, Erik Forman, and Micah

Buckley-Farlee.

       (b) On about March 22 or 23, 2011, Respondent issued final written warnings to

employees Ayo Collins, Brittany Koppy, Dan Rude, and Sean Eddins.

       (c) Respondent engaged in the conduct described above in subparagraphs (a)

and (b) because the named employees engaged in concerted protected activities,

including protesting Respondent’s sick leave policy, and to discourage employees from

engaging in these activities.

       (d) Respondent engaged in the conduct described above in subparagraphs (a)

and (b) because the named employees joined, formed or assisted the Union and

engaged in Union or other concerted protected activities, and to discourage employees

from engaging in these activities.

       7. By engaging in the conduct described above in paragraph 5, subparagraphs

(a) through (j), and paragraph 6, subparagraphs (a) through (c), Respondent has

interfered with, restrained and coerced employees in the exercise of rights guaranteed

in Section 7 of the Act, in violation of Section 8(a)(1) of the Act.

       8. By engaging in the conduct described above in paragraph 6, subparagraphs

(a), (b), and (d), Respondent has been discriminating in regard to the hire or tenure or




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terms or conditions of employment of its employees, thereby discouraging membership

in a labor organization, in violation of Section 8(a)(1) and (3) of the Act.

       9. The unfair labor practices of Respondent described above affect commerce

within the meaning of Section 2(6) and (7) of the Act.

       WHEREFORE, as part of the remedy for the unfair labor practices alleged above

in paragraph 6, subparagraph (a), the Acting General Counsel seeks an order requiring

reimbursement of amounts equal to the difference in taxes owed upon receipt of a lump-

sum payment and taxes that would have been owed had there been no discrimination.

       FURTHER, the Acting General Counsel seeks, as part of the remedy for the

allegations in paragraph 6, subparagraph (a), that Respondent be required to submit the

appropriate documentation to the Social Security Administration to ensure that when

backpay is paid, it will be allocated to the appropriate periods.

       Respondent is notified that, pursuant to Sections 102.20 and 102.21 of the

Board’s Rules and Regulations, it must file an answer to this Consolidated Complaint.

The answer must be received by this office on or before November 23, 2011, or

postmarked on or before November 22, 2011. Respondent should file an original and

four copies of the answer with this office and serve a copy of the answer on each of the

other parties.

       An answer may also be filed electronically by using the E-Filing system on the

Agency’s website. In order to file an answer electronically, access the Agency’s website

at http://www.nlrb.gov, click on File Case Documents, enter the NLRB Case Number,

and follow the detailed instructions. The responsibility for the receipt and usability of the

answer rests exclusively upon the sender. Unless notification on the Agency’s website




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informs users that the Agency’s E-Filing system is officially determined to be in technical

failure because it is unable to receive documents for a continuous period of more than 2

hours after 12:00 noon (Eastern Time) on the due date for filing, a failure to timely file

the answer will not be excused on the basis that the transmission could not be

accomplished because the Agency’s website was off-line or unavailable for some other

reason. The Board’s Rules and Regulations require that an answer be signed by

counsel or non-attorney representative for represented parties or by the party if not

represented. See Sections 102.21. If the answer being filed electronically is a pdf

document containing the required signature, no paper copies of the answer need to be

transmitted to the Regional Office. However, if the electronic version of an answer to a

complaint is not a pdf file containing the required signature, then the E-filing rules

require that such answer containing the required signature be submitted to the Regional

Office by traditional means within three (3) business days after the date of electronic

filing. Service of the answer on each of the other parties must be accomplished in

conformance with the requirements of Section 102.114 of the Board’s Rules and

Regulations. The answer may not be filed by facsimile transmission. If no answer is

filed, the Board may find, pursuant to a Motion for Default Judgment, that the allegations

in the consolidated complaint are true.

       PLEASE TAKE NOTICE THAT on January 17, 2012, at 1:00 p.m., and on

consecutive days thereafter until concluded, a hearing will be conducted in the NLRB

Hearing Room, Suite 790, 330 South Second Avenue, Minneapolis, Minnesota, before

an administrative Law Judge of the National Labor Relations Board. At the hearing,

Respondent and any other party to this proceeding have the right to appear and present




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testimony regarding the allegations in this Consolidated Complaint. The procedures to

be followed at the hearing are described in the attached Form NLRB-4668. The

procedure to request a postponement of the hearing is described in the attached Form

NLRB-4338.

      Dated at Minneapolis, Minnesota, this 9th day of November, 2011.


                                        /s/ Marlin O. Osthus


                                        Marlin O. Osthus, Regional Director
                                        Eighteenth Region
                                        National Labor Relations Board
                                        330 South Second Avenue, Suite 790
                                        Minneapolis, Minnesota 55401


Attachments




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