Jimmy John's

Mexico City, Mexico

I learned on a bus back from the 2,000-year-old ruins of Teotihuacán that after 6 years of litigation, we had lost. Jimmy John's was never going to ask me to return to my sandwich delivery job.

I did an interview on the bus with a reporter for Minnesota Public Radio. I was all amped up and didn't have it all together. I tried to impress on him the fact that it didn't really matter that we lost this ruling - because we had already lost by virtue of the case dragging on for 6 years. It went something like this:

The best case scenario for me at this point was that they'd offer me a minimum wage job and somewhere around $10,000 in back pay. Granted $10,000 is a fair amount of money - enough to travel to Antarctica for instance. But the six of us had been fired for our union organizing activity. Justice would have been an immediate return and to let them fire us after all the legal bullshit. But six years later the union effort is kaput and we're scattered all over the world engaged in different careers. The case at this point was a farce.

None of that made it in the article he wrote, but he did get a decent quote from me:

"Looking at it now, I don't think we had anything to lose," Wicklow [sic] said in an interview with MPR News. "I think that workers in a similar situation, they just have to understand that the courts aren't going to help them at all."

*

Later that evening I found myself at the same rooftop bar where I'd been drinking a watered down martini my first night in Mexico City. I took the opportunity to try to explain to my date, Amistad, the history of the Jimmy John's case. Seemed appropriate for a second date.

Early in 2011 myself and five other bicycle delivery guys were fired from a Jimmy John's franchise in Minneapolis. The stated reason was because we had plastered the city with posters claiming JJs workers had to work when they were sick (which was true). The company thought they had a right to fire us for this. We thought we were protected by federal labor law, so we filed a complaint with the labor board. This was in March 2011.

Some time later the labor board agreed to take on our case, and eventually we went into a courtroom and gave depositions in front of an administrative law judge. I remember being questioned about an article I wrote for Profane Existence. I had to define "corporate bullshit" in front of a judge. What I meant by that, your honor, was for example cleaning already clean tables, or emptying empty trash cans, because that's what the checklist says you have to do. In April 2012 - one year after we'd been fired - the judge ruled in our favor.

Of course that's meaningless in the USA. Because instead of reinstating you, the company can appeal the decision to the entire labor board. Which they did.

The Labor Board took their sweet time with this one. There's no new hearing for this type of appeal. The company submitted a brief in which they explained why they thought the case should be reconsidered and we submitted a rebuttal. The Labor Board then took 2 years to read them over, along with the written record of the case, and in August 2014 - 3 years after we had been fired - the board sided with us and said we could have our jobs back.

Of course that means nothing in the USA, because the company can appeal the board's decision to a federal appellate court. Which they did.

The 8th District Federal Appellate Court held a hearing with a 3-judge panel. By this time only two of us lived in Minnesota, and I was the only one to make the trek down to the federal courthouse in St. Paul for the hearing. I remember court coming to order with a loud "God bless the United States of America and this court!" Also that the one vocal judge was viciously anti-union. One other judge seemed sympathetic and the other didn't say a word.

The appellate court took a couple years to mull that one over, and in August 2016 - 5.5 years after we had been fired - we won a split decision in which the two Clinton appointees said we should get our jobs back and the one Bush appointee dissented.

Which of course means nothing in the USA, because the company can appeal that decision to the entire federal appellate court, which they did. I took the occasion to make a road trip to St. Louis to watch the appeal hearing. I stayed in the basement of a hot mom who let me borrow her pass for the City Museum. Decent trip all in all.

After this round of appeals (known as an en banc appeal) there's only one more round - the Supreme Court. But the company didn't have to take it that far, because a year later in July 2017 while I was in Mexico City, the district court ruled against us.

I think we were always going to lose the case. Even if the court hadn't agreed to hear the case en banc, I think it's likely the Supreme Court would have taken the case and ruled against us. The higher up you go in the courts in the USA the more conservative and anti-worker they become.

Back in 2011 when we were fired my comrade Erik Forman had argued for an occupation of the downtown franchise office. This was around the time of the occupy movement. He wanted to pressure the city to step in and force the franchise to recognize us. I'm not sure that would have worked, but in retrospect I think we had nothing to lose. Labor rights in the USA are a myth.

I'm not sure how much of that came through in my broken Spanish. I don't think Amistad was too interested anyway. Eventually we moved onto other topics and ended up together in a hotel bathroom. It was a hotel bar.