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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