MikLin Enterprises, Inc. v. NLRB

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3099
___________________________
MikLin Enterprises, Inc., doing business as Jimmy John’s
lllllllllllllllllllllPetitioner
v.
National Labor Relations Board
lllllllllllllllllllllRespondent
Industrial Workers of the World
lllllllllllllllllllllIntervenor
___________________________
No. 14-3211
___________________________
National Labor Relations Board
lllllllllllllllllllllPetitioner
v.
MikLin Enterprises, Inc., doing business as Jimmy John’s
lllllllllllllllllllllRespondent
Industrial Workers of the World
lllllllllllllllllllllIntervenor
____________
Petitions for Review of an Order of the
National Labor Relations Board
____________
Submitted: September 19, 2016
Filed: July 3, 2017
____________
Before RILEY, Chief Judge,* WOLLMAN, LOKEN, MURPHY, SMITH,
COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit
Judges, En Banc.
____________
LOKEN, Circuit Judge, with whom SMITH, Chief Judge, WOLLMAN, RILEY,
GRUENDER, and SHEPHERD, Circuit Judges, join.
MikLin Enterprises, Inc. (“MikLin”) petitions for review of a National Labor
Relations Board (“Board”) Order holding that MikLin violated Sections 8(a)(1) and
8(a)(3) of the National Labor Relations Act (“NLRA” or “the Act”), 29 U.S.C.
§§ 158(a)(1) and (3), when it (i) discharged and disciplined employees who publicly
distributed posters suggesting that MikLin’s “Jimmy John’s” sandwiches posed a
health risk to consumers; (ii) solicited employees to aid in removing the posters; (iii)
encouraged employees to disparage a union supporter; and (iv) removed union
literature from in-store bulletin boards. MikLin argues that the Board misapplied
governing law and its decision is not supported by substantial evidence. The Board
cross-petitions for enforcement of its Order. A divided panel enforced the Order in
its entirety. We granted rehearing en banc and vacated the panel decision. We now
conclude that the means the disciplined employees used in their poster attack were
*
The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
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so disloyal as to exceed their right to engage in concerted activities protected by the
NLRA, as construed in a controlling Supreme Court precedent, NLRB v. Local Union
No. 1229, IBEW, 346 U.S. 464 (1953) (“Jefferson Standard”). We therefore decline
to enforce the determination that MikLin violated the Act by disciplining and
discharging those employees and by soliciting removal of the unprotected posters.
We enforce the remainder of the Order, as so modified.
I. Background.
A. The “Sick Day Posters” Campaign. MikLin is a family enterprise that
owns and operates ten Jimmy John’s sandwich-shop franchises in the Minneapolis-St.
Paul area. Michael Mulligan is president and co-owner; Robert Mulligan, his son, is
vice-president. In 2007, several MikLin workers began an organizing campaign
seeking representation by the Industrial Workers of the World (“IWW”) union. The
IWW lost a Board-conducted election in October 2010, filed unfair labor practice
charges and objections to the election with the Board, and continued its organizing
campaign by urging MikLin to provide employees holiday pay in late 2010. On
January 10, 2011, MikLin and the IWW settled the IWW’s objections. MikLin
admitted no wrongdoing but agreed to a Board-conducted rerun election if the IWW
filed for the election after sixty days but not later than after eighteen months.
With the holiday season passed, the IWW decided its next “march on the boss”
group action would be to demand paid sick leave. The IWW concluded that the
approach of flu season was a good time to raise the issue. At this time, MikLin’s
handbook required any employee who would be absent from a shift to find a
replacement and notify the store manager. Rule 11 of Jimmy John’s Rules for
Employment, which employees received when hired, stated: “Find your own
replacement if you are not going to be at work. We do not allow people to simply call
in sick! We require our employees and [managers] to find their own replacement!
NO EXCEPTIONS!” Failure to follow this procedure resulted in termination.
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MikLin did not offer paid leave for sick employees, though an employee with
sufficient tenure was entitled to paid leave to care for a sick child.
Organizers of the IWW sick leave campaign began their attack in late January
and early February 2011 by designing and posting on community bulletin boards in
MikLin stores posters that prominently featured two identical images of a Jimmy
John’s sandwich. Above the first image were the words, “YOUR SANDWICH
MADE BY A HEALTHY JIMMY JOHN’S WORKER.” The text above the second
image said, “YOUR SANDWICH MADE BY A SICK JIMMY JOHN’S WORKER.”
“HEALTHY” and “SICK” were in red letters, larger than the surrounding text in
white. Below the pictures, white text asked: “CAN’T TELL THE DIFFERENCE?”
The response, in red and slightly smaller: “THAT’S TOO BAD BECAUSE JIMMY
JOHN’S WORKERS DON’T GET PAID SICK DAYS. SHOOT, WE CAN’T EVEN
CALL IN SICK.” Below, in slightly smaller white text, was the warning, “WE HOPE
YOUR IMMUNE SYSTEM IS READY BECAUSE YOU’RE ABOUT TO TAKE
THE SANDWICH TEST.” Text at the bottom of the poster asked readers to help the
workers win paid sick days by going to their website.
MikLin managers quickly removed the posters from store bulletin boards. On
the morning of March 10 -- the day before the IWW could request a rerun election --
IWW supporters distributed a press release, letter, and the sandwich poster to more
than one hundred media contacts, including local newspapers and major news outlets
such as the Associated Press, Reuters, Bloomberg, and NBC News. The press release
highlighted “unhealthy company behavior.” Its second sentence framed the message:
“As flu season continues, the sandwich makers at this 10-store franchise are sick and
tired of putting their health and the health of their customers at risk.” The release
declared: “According to findings of a union survey, Jimmy John’s workers have
reported having to work with strep throat, colds and even the flu.” The release ended
with a threat: if Robert and Michael Mulligan would not talk with IWW supporters
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about their demands for paid sick leave, the supporters would proceed with “dramatic
action” by “plastering the city with thousands of Sick Day posters.”
Employees attached to the press release a “sick leave letter” to the Mulligans
which asserted that health code violations occur at MikLin stores nearly every day.
The employees complained: “By working sick, we are jeopardizing the entirety of
[the company’s] image and risking public safety.” The letter accused MikLin of
refusing to put customers first, risking customers’ health, and “shoving [customers]
to the bottom of the well of importance.” Like the press release, the letter concluded
with a threat: if the Mulligans would not meet the employees’ demands, the
campaign would “move forward with [its] Sick Day posters by posting them not only
in stores, but on the University’s Campus, in hospitals, on street corners, and any
other place where postings are common, citywide.”
Also on March 10, four organizers met with Robert Mulligan. They told
Mulligan that MikLin’s attendance policy and low wages pressured employees to
work while sick. Mulligan said MikLin was in the process of reforming its policies.
The organizers provided Mulligan a printed version of their letter and press release
and warned that, unless MikLin took action to fix the sick day policy within ten days,
employees would display sandwich posters throughout the area. Employees who
attended felt they had achieved some “common ground.”
MikLin posted a new sick leave policy in each store on March 16. The new
policy provided a sliding scale of disciplinary points for absences. An employee who
did not report but found a replacement would receive no points. An absent employee
who could not find a replacement but notified the store manager at least one hour
before shift start would receive one point. An absent employee without a replacement
who called less than one hour prior to shift start would receive two points. An absent
employee who did not call the manager and did not find a replacement would receive
three points. An employee who received four disciplinary points within a twelve-
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month period would be terminated. The policy emphasized: “With regard to
absenteeism due to flu like symptoms, Team Members are not allowed to work
unless and until those symptoms have subsided for 24 hours.” Between March 10 and
March 20, MikLin posted a notice in its stores reminding workers: “[f]or those who
‘don’t feel good’ we have a policy that expects them to find a replacement for their
shift . . . . [T]he record clearly shows that we have demonstrated flexibility with
regard to excusing those who cannot find replacements.”
On March 20, IWW supporters implemented their threat to plaster the city with
a new version of the Sick Day posters they had placed in MikLin stores in January
and February. The bottom of the publicly distributed posters incorporated one
change: rather than asking for support of the employees’ request for paid sick leave,
the public posters listed Robert Mulligan’s personal telephone number and instructed
customers to call him to “LET HIM KNOW YOU WANT HEALTHY WORKERS
MAKING YOUR SANDWICH!” A copy of the publicly distributed posters appears
as Appendix A to this opinion. Organizers placed posters in various locations near
MikLin stores, including lampposts, trash cans, and mailboxes. Robert Mulligan
testified that he was “bombarded by phone calls” for close to a month from people
who thought it was unsafe to eat at Jimmy John’s. Concerned about the effect on
MikLin’s business, Mulligan and some managers took down the public posters. On
March 22, MikLin fired six employees who coordinated the attack and issued written
warnings to three who assisted.
The IWW continued its sick leave attack. In a press release issued a day after
the terminations, a discharged employee stated: “It just isn’t safe -- customers are
getting their sandwiches made by people with the flu, and they have no
idea . . . . [R]ather than safeguard public health and do the right thing for their
employees and their customers, Jimmy John’s owners Mike and Rob Mulligan are
trying to silence us.” On March 30, the IWW issued another press release stating that
“[c]ustomers have a right to know that their sandwich could be filled with germs,”
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that IWW members have a duty to speak out on this “public health issue,” and that
employees “blew the whistle by posting 3000 copies of a poster advising the public
of health risks at the sandwich chain.” The release quoted one employee as stating:
“The unfettered greed of franchise owner Mike Mulligan and Jimmy John Liautaud
himself jeopardizes the health of thousands of customers and workers almost every
day. We will speak out until they realize that no one wants to eat a sandwich filled
with cold and flu germs.”
B. The NLRB Proceedings. Following a two-day evidentiary hearing, the
Board’s Administrative Law Judge (“ALJ”) concluded that MikLin violated Sections
8(a)(1) and 8(a)(3) of the Act. Citing prior Board decisions, the ALJ ruled that
“Section 7 [29 U.S.C. § 157] protects employee communications to the public that are
part of and related to an ongoing labor dispute,” such as the Sick Day posters and
related press releases, unless they are “so disloyal, reckless, or maliciously untrue as
to lose the Act’s protections.” To lose Section 7 protection, “an employee’s public
criticism . . . must evidence ‘a malicious motive’” or be made with knowledge of the
statements’ falsity or with reckless disregard for their truth or falsity.
The ALJ found that the Sick Day posters were not maliciously untrue. While
“it is not literally true that employees could not call in sick,” the ALJ observed,
employees “are subject to discipline if they call in sick without finding a
replacement.” Thus, the assertion, “SHOOT, WE CAN’T EVEN CALL IN SICK,”
was “protected hyperbole.” The ALJ acknowledged record evidence that MikLin had
served more than six million sandwiches over its ten-year existence and had been
investigated by the Minnesota Department of Health only two times for food borne
disease -- once in 2006 and once in 2007, when the investigating sanitarian “noted
overall compliance with food code requirements and no critical violations.” The ALJ
found, however, “it is at least arguable that [MikLin’s] sick leave policy subjects the
public to an increased risk of food borne disease,” and MikLin “could have waged its
own publicity campaign” to attract consumers. The ALJ made no mention of the false
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assertion in the open letter accompanying the IWW press release that health code
violations occurred at MikLin stores nearly every day. Nor did the ALJ even attempt
to analyze and apply the disloyalty principle of Jefferson Standard.
A divided panel of the Board affirmed the ALJ’s findings and conclusions.
MikLin Enters., Inc., 361 N.L.R.B. No. 27, at *7 (2014). The majority concluded
“that neither the posters nor the press release were shown to be so disloyal, reckless,
or maliciously untrue as to lose the Act’s protection.” The public communications
“were clearly related to the ongoing labor dispute concerning the employees’ desire
for paid sick leave. . . . Indeed, any person viewing the posters and press release
would reasonably understand that the motive for the communications was to garner
support for the campaign to improve the employees’ terms and conditions of
employment by obtaining paid sick leave rather than to disparage [MikLin] or its
product.” Nor were any of the statements maliciously untrue.
Turning to the question of disloyalty, the majority noted that “Board law has
developed considerably in its approach to the question of employee disloyalty.” “To
lose the Act’s protection as an act of disloyalty, an employee’s public criticism of an
employer must evidence a malicious motive,” even if the public communication
“raise[s] highly sensitive issues such as public safety.” Accepting the majority’s
summary of prior Board decisions, the dissenting Member would nonetheless have
held the Sick Day posters and press release unprotected, because “it is well
established that employees lose the Act’s protection if their means of protest are
‘flagrantly disloyal, wholly incommensurate with any grievances which they may
have, and manifested by public disparagement of the employer’s product or
undermining of its reputation,’” quoting Five Star Transportation, Inc., 349 N.L.R.B.
42, 44-47 (2007), enforced, 522 F.3d 46 (1st Cir. 2008).
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II. “Sick Day” Poster Issues.
It is well established that an employer commits an unfair labor practice if it
discharges employees for engaging in concerted activities that are protected by
Section 7 of the NLRA, including communications to third parties or to the public
that seek to “improve their lot as employees through channels outside the immediate
employee-employer relationship.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
Section 10(c) of the Act, however, expressly limits the Board’s broad authority to
remedy unlawful employee discharges: “No order of the Board shall require the
reinstatement of any individual as an employee . . . if such individual was suspended
or discharged for cause.” 29 U.S.C. § 160(c). The interplay between Section 7 and
Section 10(c) was the critical question the Supreme Court addressed in Jefferson
Standard.
A. In Jefferson Standard, the Court upheld the Board’s decision that a
broadcasting station did not violate the Act when it fired technicians who distributed
handbills “making a sharp, public, disparaging attack upon the quality of the
company’s product and its business policies, in a manner reasonably calculated to
harm the company’s reputation and reduce its income.” 346 U.S. at 471. After
bargaining negotiations broke down, employees first picketed the station for treating
its employees unfairly. When this tactic failed, the employees distributed thousands
of handbills, signed “WBT Technicians,” criticizing the station’s poor programming
quality and asserting that Jefferson Standard did not value its customers and
considered the local city to be a “second-class community.” Id. at 468. The Board
found the employee handbills unprotected because the technicians “deliberately
undertook to alienate their employer’s customers by impugning the technical quality
of his product.” Jefferson Standard Broadcasting Co., 94 N.L.R.B. 1507, 1511
(1951). Though the technicians’ purpose was “to extract a concession from the
employer with respect to the terms of their employment,” the Board found that they
lost the Act’s protection when they failed to disclose their interests as employees. Id.
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at 1511. The Board reasoned that the technicians lost the Act’s protection because
“the gist of [the technicians’] appeal to the public was that the employer ought to be
boycotted because he offered a shoddy product to the consuming public -- not
because he was ‘unfair’ to the employees who worked on that product.” Id. at 1512.
The Board declined to decide whether the product disparagement in the handbills
would justify discharge “had it been uttered in the context of a conventional appeal
for support of the union in the labor dispute.” Id. at 1512 n.18.
The Supreme Court, in affirming the Board, decided the case on broader
grounds. After quoting the “for cause” language of Section 10(c), the Court declared
that “[t]here is no more elemental cause for discharge of an employee than disloyalty
to his employer.” Jefferson Standard, 346 U.S. at 472. Congress in the NLRA “did
not weaken the underlying contractual bonds and loyalties of employer and
employee.” Id. at 473. Absent a labor controversy, the technicians’ conduct
“unquestionably would have provided adequate cause for their disciplinary discharge
within the meaning of § 10(c). . . . The fortuity of the coexistence of a labor dispute
affords these technicians no substantial defense.” Id. at 476. Thus, the handbill
attack targeting “the quality of the company’s product . . . was as adequate a cause for
the discharge of its sponsors as if the labor controversy had not been pending.” Id.
at 477. Though the Court noted several times that the technicians failed to disclose
a connection between their labor dispute and the handbill attack, the Court declined
to remand for further consideration of whether the handbills were an “appeal for
support in the pending dispute,” rather than “a concerted separable attack,” because
the attack would be unprotected either way:
Even if the attack were to be treated, as the Board has not treated it, as
a concerted activity wholly or partly within the scope of those
mentioned in § 7, the means used by the technicians in conducting the
attack have deprived the attackers of the protection of that section, when
read in the light and context of the purpose of the Act.
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Id. at 477-78.
The Supreme Court’s decision not to remand in Jefferson Standard made clear
that the Court’s disloyalty ruling includes communications that otherwise would fall
within Section 7 protection, if those communications “mak[e] a sharp, public,
disparaging attack upon the quality of the company’s product and its business
policies, in a manner reasonably calculated to harm the company’s reputation and
reduce its income.” 346 U.S. at 471. In NLRB v. Washington Aluminum Co., 370
U.S. 9, 17 (1962), the Court confirmed that Section 10(c) “cannot mean that an
employer is at liberty to punish a man by discharging him for engaging in concerted
activities which § 7 of the Act protects.” But the Court explained that Jefferson
Standard “denied the protection of § 7 to activities characterized as ‘indefensible’
because they were there found to show a disloyalty to the workers’ employer which
[the] Court deemed unnecessary to carry on the workers’ legitimate concerted
activities.” Id., quoting Jefferson Standard, 346 U.S. at 477. Thus, we reject the
dissent’s suggestion that Jefferson Standard does not apply in this case because the
employees’ disparaging communications “expressly reference[d] ongoing labor
disputes.” Post at 31.1
B. Board decisions applying Jefferson Standard initially recognized that
employers may protect their businesses from detrimental product disparagement
whether or not an employee attack referenced a labor dispute. See Patterson-Sargent
Co., 115 N.L.R.B. 1627, 1630 (1956) (employees’ handbill asserting replacement
workers produced defective paint was unprotected “public disparagement of the
quality of the employer’s product”); Coca Cola Bottling Works, Inc., 186 N.L.R.B.
1050, 1063-64 (1970) (employees’ leaflet warning that inexperienced workers could
1
On this issue, we disagree with the contrary conclusion of the panel majority
in DirecTV, Inc. v. NLRB, 837 F.3d 25, 35-36 (D.C. Cir. 2016).
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leave objects such as roaches, bugs, and dead mice in the company’s bottles was “the
very type of [disparaging] conduct” held unprotected in Jefferson Standard).
Though the Supreme Court’s interpretation of the NLRA in Jefferson Standard
remains unchanged, “Board law has developed considerably in its approach to the
question of employee disloyalty.” MikLin, 361 N.L.R.B. No. 27, at *5 n.18. In 1987,
the Board articulated its modern interpretation: “Jefferson Standard held that
employees may engage in communications with third parties in circumstances where
the communication is related to an ongoing labor dispute and when the
communication is not so disloyal, reckless, or maliciously untrue to lose the Act’s
protection.” Emarco, Inc., 284 N.L.R.B. 832, 833 (1987); see Am. Golf Corp., 330
N.L.R.B. 1238, 1240 (2000). Although Jefferson Standard did not involve employee
public communications that were reckless or maliciously untrue, we do not question
the Board’s view that such communications are not entitled to the protection of
Section 7 as limited by Section 10(c).2 Indeed, we applied that standard in St. Luke’s
Episcopal-Presbyterian Hosp. v. NLRB, 268 F.3d 575, 580 (8th Cir. 2001), citing
Montefiore Hosp., 621 F.2d at 517.
The issue in this case is the Jefferson Standard disloyalty principle -- Section
10(c) permits an employer to fire an employee for “making a sharp, public,
disparaging attack upon the quality of the company’s product and its business
2
To be unprotected on this ground, employee public statements must be “made
with knowledge of their falsity or with reckless disregard for their truth or falsity.”
MikLin, 361 N.L.R.B. No. 27, at *3 (quotation omitted). This standard derives from
the Supreme Court’s decision in Linn v. United Plant Guard Workers of Am., Local
114, 383 U.S. 53, 64-65 (1966), that statements made during a union representation
campaign can be grounds for a state law libel action only if the plaintiff meets the
“actual malice” standard adopted in First Amendment libel cases. Linn did not
address the distinct issue of employee public disparagement of an employer or its
products and services. Nothing in Jefferson Standard suggests disloyalty, to be
unprotected, requires proof of actual malice.
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policies, in a manner reasonably calculated to harm the company’s reputation and
reduce its income.” 346 U.S. at 471. On this issue, while always purporting to apply
Jefferson Standard’s holding, the Board has migrated to a severely constrained
interpretation of that decision. “To lose the Act’s protection as an act of disloyalty,
an employee’s public criticism of an employer must evidence a malicious motive.”
MikLin, 361 N.L.R.B. No. 27, at *5 (quotation omitted). “[E]ven communications
that raise highly sensitive issues such as public safety [are] protected where they are
sufficiently linked to a legitimate labor dispute and are not maliciously motivated to
harm the employer.” Id. at *4-*5.
In our view, the Board fundamentally misconstrued Jefferson Standard in two
ways. First, while 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,” 346
U.S. at 471, to such an extent that it was harmful, indefensible disparagement of the
employer or its product, id. at 477. By holding that no act of employee disparagement
is unprotected disloyalty unless it is “maliciously motivated to harm the employer,”
the Board has not interpreted Jefferson Standard -- it has overruled it.3
Second, the Board’s definition of “malicious motive” for these purposes
excludes from Jefferson Standard’s interpretation of Section 10(c) all employee
disparagement that is part of or directly related to an ongoing labor dispute. While
the employees “may have anticipated that some members of the public might choose
3
Of course, if employees actually harbor an intent to harm their employer’s
business for improper motives, their conduct falls outside the protection Section 7
affords. See NLRB v. Red Top, Inc., 455 F.2d 721, 725-26 (8th Cir. 1972). But the
Board’s leap from the relevance of motive to a required finding of “malicious motive”
is contrary to the Court’s analysis in Jefferson Standard.
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not to patronize [MikLin’s] restaurants after reading the posters or press release,” the
Board ruled, their public communications were protected activity because “there is
no evidence that [their] purpose was to inflict harm on [MikLin].” Rather, “they were
motivated by a sincere desire to improve their terms and conditions of employment.”
MikLin, 361 N.L.R.B. No. 27, at *6. In other words, the Board refuses to treat as
“disloyal” any public communication intended to advance employees’ aims in a labor
dispute, regardless of the manner in which, and the extent to which, it harms the
employer. As the Court held in Jefferson Standard that its disloyalty principle would
apply even if the employees had explicitly related their public disparagement to their
ongoing labor dispute, once again the Board has not interpreted Jefferson Standard --
it has overruled it.
By requiring an employer to show that employees had a subjective intent to
harm, and burdening that requirement with an overly restrictive need to show
“malicious motive,” the Board has effectively removed from the Jefferson Standard
inquiry the central Section 10(c) issue as defined by the Supreme Court -- whether the
means used reflect indefensible employee disloyalty. This is an error of law. See
George A. Hormel & Co. v. NLRB, 962 F.2d 1061, 1065 (D.C. Cir. 1992). Our prior
cases confirm that an employee’s disloyal statements can lose Section 7 protection
without a showing of actual malice. In St. Luke’s, we expressly rejected the
contention that public disparagement of an employer “was protected activity unless
maliciously false.” 268 F.3d at 579. We explained that cases interpreting Jefferson
Standard “establish that an employee exceeds the boundaries of protected activity
when she falsely and publicly disparages her employer or its products and services.”
Id. at 580. By requiring proof that disloyal conduct was the product of a malicious
motive, the Board fundamentally misinterpreted both Jefferson Standard and our
decisions construing and applying Jefferson Standard.
Rather than employee motive, the critical question in the Jefferson Standard
disloyalty inquiry is whether employee public communications reasonably targeted
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the employer’s labor practices, or indefensibly disparaged the quality of the
employer’s product or services. The former furthers the policy of the NLRA; the
latter does not. See Jefferson Standard, 346 U.S. at 476; see also Five Star, 349
N.L.R.B. at 46. This distinction focuses on the type of harm employees’ methods
cause. When employees convince customers not to patronize an employer because
its labor practices are unfair, subsequent settlement of the labor dispute brings the
customers back, to the benefit of both employer and employee. By contrast, sharply
disparaging the employer’s product or services as unsafe, unhealthy, or of shoddy
quality causes harm that outlasts the labor dispute, to the detriment of all employees
as well as the employer. See Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d
1259, 1267 (D.C. Cir. 1997) (en banc), cert. denied, 523 U.S. 1020 (1998); compare
Montefiore, 621 F.2d at 517 (efforts by striking doctors to discourage patients from
entering the clinic were unprotected, although related to labor dispute, because they
“appealed to patients to turn away not out of sympathy with the aims of the striking
workers . . . , but in the belief that they could not obtain competent treatment there”),
and St. Luke’s, 268 F.3d at 580 (nurse’s public statements relating to ongoing labor
dispute were unprotected because she “disparaged the quality of patient care being
provided by [her employer] in a way guaranteed to adversely affect the hospital’s
reputation with prospective patients and the public at large”), with NLRB v.
Greyhound Lines, Inc., 660 F.2d 354, 357 (8th Cir. 1981) (bus drivers’ factual
statements regarding anticipated service delays were not unprotected because they
“did not contain any insults or negative insinuations about the Company’s services
or integrity with respect to its customers”).4
C. The Board argues, and our dissenting colleagues agree, that its decision is
entitled to judicial deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
4
The Board did not cite Diamond Walnut Growers or St. Luke’s, the most
relevant circuit court authorities. It dismissed Coca Cola as Board precedent that “has
been implicitly overruled.” MikLin, 361 N.L.R.B. No. 27, at *5 n.18.
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Inc., 467 U.S. 837 (1984). It is certainly well established that “the task of defining
the scope of § 7 is for the Board to perform in the first instance as it considers the
wide variety of cases that come before it.” NLRB v. City Disposal Sys., Inc., 465
U.S. 822, 829 (1984) (quotation omitted). But the dissent argues for far greater Board
autonomy, relying on the statement in National Cable & Telecommunications Ass’n
v. Brand X Internet Services, 545 U.S. 967, 982 (2005), that a prior court of appeals
“construction of a statute trumps an agency construction otherwise entitled to
Chevron deference only if the prior court decision holds that its construction follows
from the unambiguous terms of the statute and thus leaves no room for agency
discretion.” This principle, if applied literally here, would leave the Board free to
disregard any prior Supreme Court or court of appeals interpretation of the NLRA.
We reject this contention because it is contrary to eighty years of Supreme Court
decisions reviewing the Board’s interpretations of this heavily litigated statute.
In the first place, we doubt the statement in Brand X even applies in this case,
where the Board itself purported to interpret Jefferson Standard, not apply its own
contrary interpretation of the proper interplay between Section 7 and Section 10(c)
of the NLRA: “In protecting employee communications that are critical of the
employer or its product where the communications relate to a labor dispute, the Board
has adhered to the specific holding of Jefferson Standard, . . . and its approach has
been upheld by numerous courts.” MikLin, 361 N.L.R.B. No. 27, at *5. Brand X
does not require a court to defer to an agency’s interpretations of judicial precedent.
Numerous prior court of appeals decisions have held that the Board’s interpretation
of judicial precedent “is not entitled to judicial deference.” N.Y., N.Y., LLC v.
NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002); accord Ne. Beverage Corp. v. NLRB,
554 F.3d 133, 139 (D.C. Cir. 2009); NLRB v. U.S. Postal Serv., 660 F.3d 65, 68 (1st
Cir. 2011); see Owen v. Bristol Care, Inc., 702 F.3d 1050, 1054 (8th Cir. 2013).
Applying these precedents, we interpret Jefferson Standard de novo.
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Second, it is far from settled that Brand X applies to prior decisions of the
Supreme Court such as Jefferson Standard. See Brand X, 545 U.S. at 1003 (Stevens,
J., concurring) (agency freedom to reject judicial interpretation of an ambiguous
statute “would not necessarily be applicable to a decision by this Court that would
presumably remove any pre-existing ambiguity”); United States v. Home Concrete
& Supply, LLC, 132 S. Ct. 1836, 1851-52 (2012) (Kennedy, J., dissenting). In Home
Concrete, the Court was badly fractured on the issue of how to apply the broad
agency deference statement in Brand X; no position commanded a majority.
Third, the Court in Chevron recognized that statutory construction is first and
foremost a judicial function: “If a court, employing traditional tools of statutory
construction, ascertains that Congress had an intention on the precise question at
issue, that intention is the law and must be given effect.” 467 U.S. at 843 n.9.
Consistent with this principle, in reviewing Board decisions under the NLRA, the
Supreme Court has more than once applied the principle that, “[o]nce we have
determined a statute’s clear meaning, we adhere to that determination under the
doctrine of stare decisis, and we judge an agency’s later interpretation of the statute
against our prior determination of the statute’s meaning.” Lechmere, Inc. v. NLRB,
502 U.S. 527, 536 (1992), quoting Maislin Ind., U.S., Inc. v. Primary Steel, Inc., 497
U.S. 116, 131 (1990); accord Neal v. United States, 516 U.S. 284, 295 (1996). In
Lechmere, the Court declined to enforce a Board interpretation of Section 7 that
“erode[d]” the general rule adopted by the Court in a prior case. Brand X cited
Lechmere favorably. 545 U.S. at 984. Likewise, in NLRB v. Int’l Longshoremen’s
Ass’n, 473 U.S. 61, 78, 80 (1985), the Court noted it was “mindful of the rule that the
Board’s construction of the Act is due our deference,” but it denied enforcement of
the Board’s order because “the Board misconstrued our cases in suggesting that
‘eliminated’ work can never be the object of a work preservation agreement.” These
decisions clearly preclude the Board from construing Jefferson Standard in a manner
that fundamentally erodes a disloyalty principle that determined the clear meaning of
Section 10(c).
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Finally, it is important to recall that in Jefferson Standard the Court went
beyond the Board’s ruling, based on Section 7, and defined the interplay between
Section 7 and Section 10(c) of the Act. The Court noted that Section 10(c), part of
the Labor Management Relations Act of 1947, commonly known as the Taft-Hartley
Act, amended Section 10(c) so as to limit the Board’s authority to interfere with an
employer’s right to discharge employees “for cause.” 346 U.S. at 473-74, quoting
H.R. Rep. No. 510 , 80th Cong., 1st Sess. 38-39. In a subsequent decision, the Court
noted that Congress designed Section 10(c) “to preclude the Board from reinstating
an individual who had been discharged for misconduct,” quoting legislative history
stating that the provision was “intended to put an end to the belief, now widely held
and certainly justified by the Board’s decisions, that engaging in union activities
carries with it a license to loaf, wander about the plants, refuse to work, waste time,
break rules, and engage in incivilities and other disorders and misconduct.”
Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 217 n.11 (1964), quoting H.R.
Rep. No. 245, 80th Cong., 1st Sess., 42 (1947). Chevron deference must be based on
the intent of Congress. We see no basis for concluding that Congress intended that
courts defer when the Board narrowly construes a Supreme Court opinion that
established the meaning of a statute intended to limit the Board’s authority.
D. Turning to the merits of this case, we review the Board’s factual findings
for “substantial evidence on the record as a whole.” Cellular Sales of Mo., LLC v.
NLRB, 824 F.3d 772, 775 (8th Cir. 2016) (quotation omitted). Substantial evidence
supports the Board’s findings that the employees’ Sick Day posters and press releases
were related to their protected concerted effort to improve the terms and conditions
of their employ by obtaining paid sick leave. Communications asking the public to
support this effort may be within the protection of Section 7 even though they address
a sensitive issue, like sick leave in the food service industry. Delineating the
boundaries of “indefensible” third-party communications is more difficult when this
connection is present. But as a matter of law, the Board erred in concluding that the
employees’ product disparagement was protected Section 7 activity simply because
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its purpose was to obtain paid sick days. Even communications connected to a labor
dispute are unprotected when they constitute a “sharp, public, disparaging attack upon
the quality of the company’s product and its business policies.” Jefferson Standard,
346 U.S. at 471.
The attack was “sharp,” proceeding “in a manner reasonably calculated to harm
the company’s reputation and reduce its income.” Id. at 471. The posters, press
releases, and letter were an effective campaign to convince customers that eating
Jimmy John’s sandwiches might cause them to become sick. The Sick Day poster
warned that the reader was “about to take the sandwich test.” Its enduring image was
a MikLin-made Jimmy John’s sandwich that, although appearing like any other, was
filled with cold and flu germs. As in Jefferson Standard, the employees were not on
strike, but continued to work and collect wages as they attempted to scare customers
away from their employer and its products. “Nothing could be further from the
purpose of the Act than to require an employer to finance such activities.” Jefferson
Standard, 346 U.S. at 476.
Allegations that a food industry employer is selling unhealthy food are likely
to have a devastating impact on its business, what the D.C. Circuit called the
“equivalent of a nuclear bomb” in a labor-relations dispute. Diamond Walnut
Growers, 113 F.3d at 1267. MikLin’s employees maximized this effect, choosing
March as a “good time” to launch their attack “because it was flu season.”5 The
employees understood that MikLin’s business was dependent on its “clean” public
5
The Board majority emphasized “there is no evidence that the communications
were made ‘at a critical time in the initiation’ of [MikLin’s] business,” a fact present
in Jefferson Standard. MikLin, 361 N.L.R.B. No. 27, at *6 (emphasis added). Either
the Board was limiting Jefferson Standard to its facts -- a clear error of law -- or its
interpretation of the evidence in this case was simply disingenuous. Employees’
conscious decision to scare MikLin customers during flu season was strong evidence
of their intent to disparage MikLin “at a critical time.”
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image, yet directly attacked that image. Like the technicians in Jefferson Standard,
the MikLin employees accused their employer of not valuing its customers. See
Montefiore Hosp., 621 F.2d at 517; Five Star, 349 N.L.R.B. at 46. By targeting the
food product itself, employees disparaged MikLin in a manner likely to outlive, and
also unnecessary to aid, the labor dispute. Even if MikLin granted paid sick leave,
the image of contaminated sandwiches made by employees who chose to work while
sick was not one that would easily dissipate.
The employees’ public claims about their employer’s product were also
“materially false and misleading.” St. Luke’s, 268 F.3d at 581. The Sick Day poster
graphically told customers that sandwich makers were working when sick by falsely
stating, “Shoot, we can’t even call in sick.” The press release and open letter claimed
that MikLin jeopardized customers’ health by the almost daily health code violations
occurring at MikLin’s stores. Yet the IWW supporters knew MikLin complied with
Minnesota Department of Health regulations by requiring employees to call in sick
if they had experienced flu-like symptoms in the last 24 hours. As the ALJ noted:
“Given [MikLin’s] record over a 10-year period one could regard the risk of
becoming ill by eating at one of [its] shops to be infinitesimal.” MikLin, 361
N.L.R.B. No. 27, at *23. This factor made the MikLin employees’ attack even more
“indefensible” than that at issue in Jefferson Standard, where the technicians “did not
misrepresent, at least willfully, the facts they cited to support their disparaging
report.” 346 U.S. at 472. As dissenting Board Member Johnson stated, “Any
employee who is willing to make up allegations out of whole cloth against his or her
employer is obviously far more disloyal, in any meaningful sense of that word, than
one who acts upon a reasonable but mistaken belief.” MikLin, 361 N.L.R.B. No. 27,
at *12 (Johnson, M., dissenting in part).
From the array of possible tactics, the employees selected public
communications that were sure “to harm [MikLin’s] reputation and reduce its
income.” Jefferson Standard, 346 U.S. at 471. This was a “continuing attack . . .
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upon the very interests which the attackers were being paid to conserve and develop.”
346 U.S. at 476. The Act does not protect such calculated, devastating attacks upon
an employer’s reputation and products. See Endicott Interconnect Techs., Inc. v.
NLRB, 453 F.3d 532, 537 (D.C. Cir. 2006). Although applying Jefferson Standard’s
disloyalty principle is often difficult, the employees’ third-party communications
demonstrated “such detrimental disloyalty as to provide ‘cause’” for MikLin to
discharge and discipline those responsible for the campaign. 346 U.S. at 472. We
decline to enforce the Board’s contrary Order.
E. After learning that IWW supporters were about to “plaster” the area
surrounding MikLin stores with Sick Day posters, Robert Mulligan posted this
message on an employee-created “Jimmy John’s Anti-Union” Facebook page:
. . . [T]he IWW are threatening to put up thousands of posters that
threaten our business and your jobs. They plan on doing this if we don’t
meet with them which we will not do. I encourage anyone to take down
any posters they may see around the twin cities. These posters are
defamatory.
The ALJ concluded this post violated Section 8(a)(1) because its target, the sandwich
posters, was concerted activity protected by Section 7. The Board affirmed the ALJ,
one member dissenting. Section 8(a)(1) forbids employers to “interfere with, restrain,
or coerce” employees in the exercise of their Section 7 rights. Because we conclude
the posters were not protected Section 7 activity, substantial evidence does not
support the Board’s decision. Soliciting employees to remove unprotected public
communications did not “interfere with, restrain or coerce” employees in their
exercise of Section 7 rights. We decline to enforce this portion of the Board’s Order.
-21-
III. Other Issues.
MikLin also appeals the Board’s conclusion that it committed two other
violations of Section 8(a)(1) during the IWW’s organizing campaign in late 2010 and
early 2011. “We will enforce the Board’s order as long as the Board correctly applied
the law, and its findings are supported by substantial evidence, even if we might have
reached a different decision on de novo review.” NLRB v. Rockline Indus., Inc., 412
F.3d 962, 966 (8th Cir. 2005). The panel unanimously enforced these portions of the
Board’s Order. We agree.
A. Facebook Postings by MikLin Supervisors. In response to the IWW’s
public organizing campaign, a rank-and-file MikLin employee created the “Jimmy
John’s Anti-Union” Facebook page. Its membership grew to include Robert
Mulligan, MikLin managers, and other employees who opposed the IWW. The
Facebook page was open to viewing by anyone with a Facebook account, including
IWW supporters and neutral employees.
Rene Nichols was assistant manager of the MikLin store where IWW-supporter
David Boehnke worked. Nichols posted on the Facebook page listing Boehnke’s
telephone number and suggesting that employees text Boehnke to “let him know how
they feel,” followed by the comment, “Fuck You David! Forever.” When a former
MikLin employee posted a picture on the Facebook page showing Boehnke with
feces on the brim of his hat and the IWW logo on his shirt, and displaying the words
“Shithead” and “Liar” and a toilet bowl in the background, Nichols commented,
“Haaaa Ben--2 David--0 Fartbag.” Two other MikLin managers, Eddie Guerrero and
Melissa Erickson, posted that the photo should be posted everywhere.
The ALJ ruled that Nichols’s posts violated Section 8(a)(1) by encouraging
employees to harass Boehnke for protected activities. The Board affirmed that ruling
and also ruled that managers Guerrero and Erickson violated Section 8(a)(1) by
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encouraging employees to disparage a union supporter. The Board found that
Nichols’s posts, and the Guerrero and Erickson posts encouraging other employees
to widely disseminate a degrading picture of an employee leader of the IWW, “would
reasonably intimidate both Boehnke and other employees who would not want to be
subject to the same kind of humiliation and ridicule, thereby dissuading them from
supporting the Union.” MikLin, 361 N.L.R.B. No. 27, at *8.
Section 8(c) of the Act provides that “[t]he expressing of any views, argument,
or opinion . . . shall not constitute or be evidence of an unfair labor practice . . . if
such expression contains no threat of reprisal or force or promise of benefit.”
“Accordingly, to violate Section 8(a)(1), a statement must contain a threat of reprisal
or force or promise of benefit.” Greater Omaha Packing Co. v. NLRB, 790 F.3d 816,
822 (8th Cir. 2015). “Words of disparagement alone concerning a union or its
officials are insufficient for finding a violation of Section 8(a)(1).” Sears, Roebuck
& Co., 305 N.L.R.B. 193, 193 (1991). However, an employer’s ridicule of union
supporters in front of other employees may violate Section 8(a)(1) where it is likely
to discourage employees from exercising their Section 7 rights. See Dayton Hudson
Corp., 316 N.L.R.B. 477, 483 (1995).
We conclude that substantial evidence supports the Board’s conclusion that the
supervisors’ public effort to disparage and degrade union leader Boehnke restrained
or coerced MikLin employees in the exercise of their Section 7 rights, by causing
other employees to fear they would incur similar treatment if they supported the
IWW. Though we now hold that MikLin lawfully terminated Boehnke prior to most
of these posts for his role in the Sick Day poster attack, the degrading posts targeted
Boehnke for his general support of the IWW and thus coerced other employees not
to engage in protected activity. We enforce this portion of the Board’s Order.
B. Removal of In-Store Union Literature. After the IWW lost the
representation election, it filed unfair labor practice charges and objections to the
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election with the Board. The parties settled this dispute with a Board-approved
“Stipulation to Set Aside Election” in which they agreed that the October 2010
election was set aside and the IWW could request a “Rerun Election.” The settlement
included a provision that MikLin “does not admit to violating the National Labor
Relations Act as alleged, and approval by the Regional Director does not constitute
a determination that [MikLin] has violated the Act.”
At the evidentiary hearing, pro-union employee Travis Erickson testified that,
after the settlement, MikLin posted on the employee “tack board” in the back of the
store where Erickson worked the Notice to Employees required by the Stipulation and
a posting giving MikLin’s “explanation to employees of what the settlement meant.”
In response, Erickson posted on the same board an IWW “FAQ about the Union
Election & Settlement,” giving the union’s position on these issues, and a copy of the
amended unfair labor practice charges the IWW had filed with the Board. Erickson
testified that these postings were repeatedly removed before he came to work, and one
set had been smeared with grease pen marks. Erickson and three other union
supporters eventually confronted area manager Jason Effertz, who admitted taking
down the posts and said “our lawyers told us to take them down.” Effertz later told
Erickson, “You guys can put up anything you want about who you are and what you
stand for, but you’re not allowed to put up stuff talking about the election.” MikLin
introduced no evidence contradicting this testimony.
The ALJ concluded that removal of the union materials violated
Section 8(a)(1). The Board affirmed. On appeal, MikLin argues it had the right to
prohibit this union literature because statements on the FAQ notice “were materially
false representations of events, processes and outcomes of past NLRB proceedings,
and were intended to undermine the authority of management,” citing Eastex, 437
U.S. at 70-73 .
-24-
Section 8(a)(1) makes it an unfair labor practice for an employer to “interfere
with” employees in the exercise of their Section 7 rights, which include the right “to
bargain collectively through representatives of their own choosing.” As the Supreme
Court said in Central Hardware Co. v. NLRB, 407 U.S. 539, 542-43 (1972), the right
of self-organization
includes both the right of union officials to discuss organization with
employees, and the right of employees to discuss organization among
themselves. . . . But organization rights are not viable in a vacuum; their
effectiveness depends in some measure on the ability of employees to
learn the advantages and disadvantages of organization from others.
“The inquiry under § 8(a)(1) is an objective one which asks whether, considering the
entire factual context, the employer’s conduct reasonably tends to interfere with the
employees’ exercise of their section 7 rights.” Mississippi Transp., Inc. v. NLRB, 33
F.3d 972, 977-78 (8th Cir. 1994).
Here, some MikLin employees engaged in a concerted organizing campaign
that resulted in a contested election followed by the filing of unfair labor practice
charges and election objections that were settled by a Board-approved Stipulation
authorizing a Rerun Election. The record contains undisputed testimony that MikLin
posted its explanation of these NLRB proceedings on employee “tack boards” in the
back of its stores and then removed the IWW’s responsive FAQ notice, explaining
that “[y]ou guys can put up anything you want about who you are and what you stand
for, but you’re not allowed to put up stuff talking about the election.” A more clear-
cut case of interfering with the employees’ Section 7 right to effectively communicate
about their ongoing organizational activity is hard to imagine. While employees have
no statutory right to use their employer’s bulletin boards, “where by policy or
practice, the company permits employee access to bulletin boards for any purpose,
section 7 . . . secures the employees’ right to post union materials.” Roadway Exp.,
Inc. v. NLRB, 831 F.2d 1285, 1290 (6th Cir. 1987); see Healthbridge Mgmt., LLC
-25-
v. NLRB, 798 F.3d 1059, 1073 (D.C. Cir. 2015); NLRB v. Honeywell, Inc., 722 F.2d
405, 406-07 (8th Cir. 1983).
MikLin introduced no evidence supporting its implausible contention that
removal of an IWW flyer that gave employees the union’s contrary interpretation of
the NLRB proceedings was necessary to maintain the “authority of management.”
Therefore, substantial evidence supports the Board’s conclusion that removal of the
flyers and copies of the IWW amended charge violated Section 8(a)(1) of the Act.
We enforce this portion of the Board’s Order.
IV. Conclusion.
For the foregoing reasons, we grant enforcement of the Board’s Decision and
Order except as to paragraphs 4, 5, and 6 of the Amended Conclusions of Law and
paragraphs 1(d), 1(e), and 2(a)-(g) of the Order. We note that, after we enforced its
order in part in Greater Omaha, the Board filed a proposed form of judgment, which
we entered when the company filed no objection. 790 F.3d at 825-28. We leave to
the parties whether to follow that procedure in this case.
COLLOTON, Circuit Judge, with whom BENTON, Circuit Judge, joins, concurring
in the judgment.
As this case comes to us, MikLin Enterprises, Inc., does not challenge the
standard applied by the National Labor Relations Board to determine whether
concerted activities of an employee are so disloyal as to lose protection under Section
7 of the National Labor Relations Act. The company’s position, rather, is that the
Board’s decision applying its standard in this case was unsupported by substantial
evidence. I conclude that MikLin’s argument has merit and therefore concur in the
judgment.
-26-
The Board has interpreted the Act to mean that employee communications to
third parties are unprotected by the Act if they are “flagrantly disloyal, wholly
incommensurate with any grievance which [the employees] might have.” Valley
Hosp. Med. Ctr., 351 N.L.R.B. 1250, 1260 (2007) (quotation omitted). According
to the Board, “[t]o lose the Act’s protection as an act of disloyalty, an employee’s
public criticism of an employer must evidence a malicious motive.” Id. at 1252
(internal quotation omitted). The Board has explained that disparaging comments are
unprotected when they are “calculated to alienate the public’s patronage as a tactic
to increase the employees’ leverage in [a] labor dispute.” Richboro Cmty. Mental
Health Council, 242 N.L.R.B. 1267, 1268 (1979). In this case, the Board concluded
that “[w]hile the employees may have anticipated that some members of the public
might choose not to patronize [MikLin’s] restaurants after reading the posters or press
release, there is no evidence that their purpose was to inflict harm on [MikLin], or
that they acted recklessly without regard for the economic detriment to [MikLin’s]
business.” MikLin Enters., Inc., 361 N.L.R.B. No. 27, at *7 (2014).
In my view, the Board’s conclusion blinks reality. The employees obviously
intended to harm MikLin’s business: “[T]he main thrust of the contaminated-
sandwich posters is to shock the public and create a generalized fear that consuming
MikLin’s sandwiches will cause illness.” Id. at *12 (Johnson, M., dissenting in part).
The majority opinion explains why the evidence compels a conclusion that the
employees acted with malicious motive. The employees intentionally “cho[se] March
as a ‘good time’ to launch their attack ‘because it was flu season.’” Ante, at 19. The
posters, press release, and open letter included materially false and misleading
statements implying that sandwich makers were working while sick in violation of
the state health code. Id. at 20. “From the array of possible tactics, the employees
selected public communications that were sure to harm [MikLin’s] reputation and
reduce its income.” Id. (internal quotation omitted). The “[e]mployees’ conscious
decision to scare MikLin customers during flu season was strong evidence of their
intent to disparage MikLin ‘at a critical time.’” Id. at 19 n.5 (emphasis added).
-27-
The substantial evidence standard of review affords the Board leeway in
choosing between two fairly conflicting views of the evidence, but there are limits.
See Endicott Interconnect Techs., Inc. v. NLRB, 453 F.3d 532, 537 (D.C. Cir. 2006).
The record here allows only one reasonable conclusion—that the MikLin employees
acted with malicious motive in a manner that was flagrantly disloyal, wholly
incommensurate with any grievance. In the Board’s words from Richboro, the
disparagement included in the posters and press release plainly was “calculated to
alienate the public’s patronage as a tactic to increase the employees’ leverage in the
labor dispute.” 242 N.L.R.B. at 1268. I therefore concur in the judgment granting
enforcement of the Board’s Decision and Order, but declining to enforce paragraphs
4, 5, and 6 of the Amended Conclusions of Law and paragraphs 1(d), 1(e), and 2(a)-
(g) of the Order. Although I do not join Part II of the majority opinion, I agree with
Part III concerning other issues raised in the petition for review.
KELLY, Circuit Judge, with whom MURPHY, Circuit Judge, joins, dissenting in
part.
I respectfully dissent from Part II of the court’s opinion.
A.
In 1953, the Supreme Court in Jefferson Standard created an exception from
protection under Section 7 of the Act, introducing the concept that employees could
be discharged “for cause” under Section 10(c) if they engaged in “disloyalty.” The
court here concludes that Jefferson Standard set out an explicit test for determining
disloyalty and asserts that the Board made an “error of law” by failing to apply the
test properly. But Jefferson Standard did not set out a test to apply to determine
whether an employer’s “cause for discharge” was “disloyalty to his employer.” 346
U.S. at 472; see id. at 481 (Frankfurter, J. dissenting) (“The Board and the courts of
appeals will hardly find guidance for future cases from this Court’s reversal of the
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Court of Appeals, beyond that which the specific facts of this case may afford.”);
Sierra Pub. Co. v. NLRB, 889 F.2d 210, 216 (9th Cir. 1989) (the “reach” of Jefferson
Standard’s “‘disloyalty’ test . . . remains unclear”); Melinda J. Branscomb, Labor,
Loyalty, and the Corporate Campaign, 73 B.U. L. Rev. 291, 306 (1993) (“Though the
Court specified a number of objectionable aspects of the technicians’ conduct, it
articulated the weight and relevance of none. Like the Board, it declined to formulate
a test for loss of protection . . . .” (footnote omitted)). The Board’s decision in
Jefferson Standard, which the Supreme Court affirmed, was explicit: It refused to
“attempt[] to formulate a test which will decide every imaginable case involving
similar questions as to the scope of Section 7.” 94 N.L.R.B. at 1512. Nothing in the
Supreme Court’s opinion indicates that it intended to formulate a test where the
Board declined to do so.
Jefferson Standard acknowledged that the “legal principle that . . . disloyalty
is adequate cause for discharge is plain enough,” but it left to the Board the
“difficult[]” task of “determining whether, in fact, the discharges are made because
of such a separable cause.” 346 U.S. at 475. Read in its entirety, the opinion at best
provides some potential factors that may guide the Board’s analysis in “developing
and applying national labor policy” and setting the boundaries of Section 7
protection. NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775, 786 (1990); City
Disposal Sys., 465 U.S. at 829 (“We have often reaffirmed that the task of defining
the scope of § 7 ‘is for the Board to perform in the first instance as it considers the
wide variety of cases that come before it . . . .’” (quoting Eastex, 437 U.S. at 568)).
Where the Supreme Court has not articulated a particular standard to follow, the
Board acts within its discretion in formulating its own test and in assigning weight
to the relevant factors. See Sierra Pub. Co., 889 F.2d at 218–19 (“The relative weight
to be given each of these factors can be debated, but we conclude that the Board acted
appropriately in considering them.” (footnote omitted)). As discussed more fully
below, the Board reasonably concluded that employee communications criticizing
their employer’s product do not lose the protection of Section 7 when (1) the “attack
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related itself to [a] labor practice of the company,” Jefferson Standard, 346 U.S. at
476, and (2) the employees responsible for the communications lack a “calculat[ing]”
or “deliberate[]” motive to harm their employer, id. at 471.
1.
The court reads Jefferson Standard as stating that the technicians’ handbills
would constitute unprotected disloyalty regardless of whether their distribution was
“a concerted activity wholly or partly within the scope of those mentioned in § 7.”
Id. at 477. According to the court, the Board “overruled” this portion of Jefferson
Standard by protecting disloyal communications because they are “part of or related
to an ongoing labor dispute.” The test applied by the Board is much narrower than
this, however, and is fully permissible under Jefferson Standard.
The Board did not look for a tangential connection or mere
contemporaneousness with a labor dispute. Rather, in the first step of its analysis, the
Board examined whether the communications themselves “indicate” that they are
“expressly related to” or “directly linked to” an ongoing labor dispute. MikLin, 361
N.L.R.B. No. 27 at *3. The Board concluded that because they included the phrase
“Help Jimmy John’s Workers Win Sick Days,” the posters and press release “clearly
connected” the potential risk to the public of eating food prepared by sick employees
to the central issue in the labor dispute. Id. The Board asked not merely whether the
communications were part of or related to a protected activity, but whether the
communications indicated on their face a connection to an ongoing labor dispute.
This distinction is an important one. While Jefferson Standard arguably found that
the former communications can be unprotected disloyalty, it at least left open and
arguably suggests that the latter communications should be protected by Section 7.
“[C]oncerted activity” can be “wholly or partly within the scope of” protection
under Section 7 without facially indicating a direct link to a labor dispute. Jefferson
-30-
Standard, 346 U.S. at 477; see, e.g., Eastex, 437 U.S. at 569–70 (holding that a
newsletter that “urg[ed] employees to write their legislators to oppose incorporation
of the state ‘right-to-work’ statute into a revised state constitution,” “criticiz[ed] a
Presidential veto of an increase in the federal minimum wage[,] and urg[ed]
employees to register to vote” was protected concerted activity); see NLRB v.
RELCO Locomotives, Inc., 734 F.3d 764, 785–86 (8th Cir. 2013) (“[A]ction which
involves only a speaker and a listener can qualify as concerted action if it had some
relation to group action in the interest of the employees.” (emphasis added) (internal
quotation omitted)). Jefferson Standard itself addressed such a communication.
Unlike the poster and press release here, the handbills in Jefferson Standard “made
no reference to the union, to a labor controversy or to collective bargaining.” 346
U.S. at 468. Although the handbills were related to a “pending labor controversy,”
the Court found they were a “separable attack” from the pending dispute because they
“related . . . to no labor practice,” “made no reference to wages, hours or working
conditions,” and “omitted all reference to” and, in fact, “diverted attention from” the
ongoing labor controversy. Id. at 476. The Court was not presented with a
communication that was directly linked to a labor dispute on its face—and thus its
holding cannot be binding here—but the reasoning offered by Jefferson Standard
suggests that the absence of such a connection was crucial to its conclusion that the
handbills were unprotected disloyalty.
Like Jefferson Standard, the Board draws a line between communications (like
the handbills) that fall under Section 7 because they relate to or “coexist[]” with a
labor dispute—which can lose protection due to disloyalty—and those (like the poster
and press release) that fall under Section 7 because they directly attack a labor
practice of the company—which Jefferson Standard suggests may not lose protection
based on disloyalty. Id. The Board here found the communications were not disloyal
in part because the poster and press release explicitly attacked the company’s sick
leave policy. MikLin, 361 N.L.R.B. No. 27 at *3. Its determination was based on a
long-adhered-to rule, upheld by several courts, requiring that communications that
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disparage an employer’s product must directly reference a labor dispute in order to
receive protection under Section 7. See Sierra Pub. Co., 889 F.2d at 217 & n.9
(holding that the Board’s focus on the link between the union’s letter and the labor
dispute was “appropriate” because “[t]his feature was central to the Supreme Court’s
reasoning in Jefferson Standard”); Endicott, 453 F.3d at 537 (finding “the Board’s
formulation [of the two-part test] accurately reflects the holding in Jefferson
Standard”); see, e.g., Five Star, 349 N.L.R.B. at 44 (refusing to extend Section 7
protection because “the content of their letters was not sufficiently related to the
drivers’ terms and conditions of employment,” even though “they were written as part
of the drivers’ letter-writing campaign”); Am. Golf Corp., 330 N.L.R.B. at 1241
(concluding flyer was unprotected disloyalty even though it was circulated during
other protected activities, because it “omitted all reference to the labor controversy
and attacked policies of the Respondent with no discernible relation to it”). This
portion of the Board’s disloyalty standard accurately reflects the reasoning articulated
in Jefferson Standard, and at the very least does not “overrule” it.
2.
The court also concludes that the Board overruled Jefferson Standard by
requiring that an employee’s disparaging communication evidence a malicious motive
to harm the employer. But this requirement does not come from Jefferson Standard.
While the Board acknowledges that the first element of its test—that the
communication indicate its direct relation to the labor dispute—originates from
Jefferson Standard, MikLin, 361 N.L.R.B. No. 27 at *7, it makes no similar assertion
with regard to the motive element. In fact, the Board cites only NLRB decisions in
support of this requirement. Id. at *5–6; see Veeder-Root Co., 237 N.L.R.B. 1175,
1176–77 (1978) (describing how the Board developed the maliciousness standard in
an “attempt[] over the years to balance the right of employees to engage in concerted
activities” under Section 7 and the employer’s right under Section 10(c) “to maintain
plant discipline and to bar inflammatory material from its premises”). Because the
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Board’s motive requirement comes from its own precedent and not from the Supreme
Court, it is entitled to this court’s deference. See Allentown Mack Sales & Serv., Inc.
v. NLRB, 522 U.S. 359, 364 (1998) (“Courts must defer to the requirements imposed
by the Board if they are rational and consistent with the Act.” (internal quotation
omitted)); Pub. Serv. Co. of N.M. v. NLRB, 843 F.3d 999, 1004 (D.C. Cir. 2016) (the
Board’s interpretation of its own precedent is entitled to deference).
The Board’s reliance on motive is not an unreasonable interpretation of Section
7. Both the Supreme Court and our court have affirmed the centrality of motive in
the disloyalty analysis. In NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962),
the Court rejected the argument that employees who had left their work in a machine
shop without permission because it was too cold had lost Section 7 protection due to
disloyalty. Id. at 17. The Court found their activities “cannot be classified as
‘indefensible’” disloyalty because “concerted activities by employees for the purpose
of trying to protect themselves from working conditions” they find intolerable are
“unquestionably” protected by the Act. Id. Thus, the Court found Jefferson
Standard’s disloyalty principle did not apply where the employees’ purpose was to
improve working conditions.
We went even further in NLRB v. Red Top, Inc., 455 F.2d 721 (8th Cir. 1972),
making clear that the Board must look at motive when determining whether to extend
Section 7 protection to disparaging conduct. There, the Trial Examiner found that
housekeeping employees were properly discharged because they engaged in a
campaign to secure the removal of their manager, including by threatening to and
making complaints to one of their employer’s customers. Id. at 724. The Board
reversed, but we agreed with the Trial Examiner, finding the conduct was “insulting,
threatening, and disloyal,” id. at 728, and stating:
The Trial Examiner found that the committee was acting
for improper and unprotected motives, that of causing
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Lassiter to be replaced as manager. The Board does not
dispute this. While not expressing it clearly, the Board
seems to be acting on the theory that the motivation of the
employees is not determinative of the issue of whether they
were engaged in a protected activity. This is not the case.
It is difficult to even imagine that Congress intended the
National Labor Relations Act to protect employee
conspiracies against an unpopular manager. Thus the
question of whether or not the three employees pressed
their alleged grievances in good faith becomes vitally
important.
Id. at 725–26. These cases establish that motive is not only relevant to the disloyalty
analysis, it is “vitally important.” Id. at 726.6
The importance of motive in the disloyalty analysis is also consistent with
Jefferson Standard. The Court approved of the Board’s consideration of the fact that
the technicians “deliberately undertook to alienate their employer’s customers by
impugning the technical quality of his product.” 346 U.S. at 471 (emphasis added).
Examining whether the employees deliberately used methods intended to harm the
employer suggests the Court considered the employees’ purpose or motive to be part
of the disloyalty inquiry. See also Montefiore, 621 F.2d at 517 (“Underlying
[Jefferson Standard] is the principle that while legally striking employees are
generally entitled to enlist the consensual support of the public for their cause they
6
The court cites St. Luke’s Episcopal-Presbyterian Hospitals, Inc., 268 F.3d
575, for the proposition that “our cases confirm that an employee’s disloyal
statements can lose Section 7 protection without a showing of actual malice.” But St.
Luke’s addresses only whether the employee’s communications were unprotected
because they were untrue. St. Luke’s had nothing to say about an employee’s disloyal
statements; the term “disloyal” appears nowhere in its analysis.
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may not . . . deliberately inflict on the employer economic harm unnecessary to the
legitimate concerted activities.”).7
Relying solely on Jefferson Standard, the court asserts that by requiring
employees to evince a motive to harm their employer, the Board has “effectively
removed” an inquiry into the indefensibility of the means used by the employees. The
Board’s decision here demonstrates that it did in fact examine the means used by the
employees. The Board explained that the poster and press release were protected
because they “did not use inflammatory language,” their “message did not stray from
the context of the labor dispute,” and they “only suggest[ed] the realistic potential for
illness.” MikLin, 361 N.L.R.B. No. 27 at *7–8. It specifically examined the
communications from an objective perspective, concluding that “any person viewing
the posters and press release would reasonably understand that the motive for the
communications was to garner support for the campaign to improve the employees’
terms and conditions of employment by obtaining paid sick leave rather than to
disparage [MikLin] or its product.” Id. at *3. As the dissenting member explained,
requiring a “disloyal malicious intent” does not subvert the Board’s examination of
the means used because motive need not be independently proven; instead, it “may
be inferred from the circumstances of a particular protest.” Id. at *12 (Johnson, M.,
dissenting in part); see, e.g., Five Star, 349 N.L.R.B. at 46 (“[T]hese three drivers
used inflammatory language—again, in the context of incidents not related to the
drivers’ group concerns—to describe the Respondent in a manner that suggested that
the drivers intended to damage the Respondent’s reputation.” (emphasis added)). In
my view, the Board’s malicious motive requirement—which originated in the
NLRB’s own case law and is supported by several precedential court decisions—does
not “effectively remove” or “overrule” Jefferson Standard’s disloyalty principle.
7
The Board’s decision to incorporate motive into its disloyalty analysis is also
supported by the plain language of the term: “disloyalty . . . focus[es] on one’s
subjective state of mind.” Branscomb, supra, 73 B.U. L. Rev. at 322 n.144, 331.
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B.
When the Board adopts a standard that carries out its interpretation of the Act,
its reasonable rule is entitled to “considerable deference.” City Disposal Sys., 465
U.S. at 829; accord ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 324 (1994). Yet
the court affords no deference to the Board’s formulation of its disloyalty test. It
contends no deference is warranted because the Board was interpreting Jefferson
Standard, not applying its own interpretation of the Act. As discussed above,
however, the Board did not interpret Jefferson Standard when it added the malicious
motive requirement. Thus, this explanation for de novo review at most pertains only
to the Board’s conclusion that the disloyalty exception applies where the
communication directly references an ongoing labor dispute.
At least as to the malicious motive element, traditional Chevron deference
applies.8 See Hormel, 962 F.2d at 1065 (applying Chevron deference to the Board’s
subjective test for determining whether an employee’s support of a boycott violated
his duty of loyalty). In Brand X, 545 U.S. at 983, the Supreme Court stated that “a
court’s opinion as to the best reading of an ambiguous statute an agency is charged
with administering is not authoritative . . . . Instead, the agency may . . . choose a
different construction, since the agency remains the authoritative interpreter (within
the limits of reason) of such statutes.” Pursuant to Brand X, “[o]nly a judicial
precedent holding that the statute unambiguously forecloses the agency’s
8
Even though the Board adopted the first element of its disloyalty test—the
direct link—from Jefferson Standard, Brand X may apply. Nothing in Brand X limits
its application based on the origin of the agency’s test. See Branscomb, supra, 73
B.U. L. Rev. at 384 (“The Board has the power to reject the Jefferson Standard
disloyalty test, and such a rejection would not amount to an impermissible attempt to
‘overrule’ a higher Court.”).
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interpretation, and therefore contains no gap for the agency to fill, displaces a
conflicting agency construction.” Id. at 982–83.9
Applying Brand X here, it is evident that Jefferson Standard did not interpret
Sections 7 or 10(c) to unambiguously foreclose the Board from considering whether
the employee had malicious motive, nor did it unambiguously require the Board to
look only at an employee’s means to determine whether an employee demonstrated
detrimental disloyalty. See id. at 985 (“Before a judicial construction of a
statute . . . may trump an agency’s, the court must hold that the statute unambiguously
requires the court’s construction.”); Branscomb, supra, 73 B.U. L. Rev. at 384 (“[T]he
Jefferson Standard Court did not declare that a disloyalty test is the only reasonable
interpretation of the Act . . . .”). The Jefferson Standard Court relied on the Act’s
policy, not its plain language. See 346 U.S. at 472–74, 472 n.9. It made clear that its
interpretation of the statute “leaves . . . room for agency discretion,” Brand X, 545
U.S. at 982, to determine whether discharges are made because of disloyalty, see 346
U.S. at 475. Much like the Jefferson Standard Court, I do not believe that the
“statute’s plain terms directly addres[s]” whether the Board may require evidence of
an employee’s malicious motive to sustain the discharge of an employee for
disloyalty. Brand X, 545 U.S. at 982 (alteration in original) (internal quotation
omitted); see Hormel, 962 F.2d at 1065 (“Nothing in the text or the legislative history
of the NLRA addresses the specific question of the test the Board should use to define
the contours of an employee’s duty of loyalty.”).10
9
Courts have held that Brand X applies to judicial precedent from the Supreme
Court. See, e.g., United States v. Home Concrete & Supply, LLC, 132 S. Ct. 1836,
1843 (2012) (plurality op.); Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1247–28
(10th Cir. 2008); see also Sandoz Inc. v. Amgen Inc., — S. Ct. —, 2017 WL
2507337, at *16 (2017) (Breyer, J., concurring); Cuomo v. Clearing House Ass’n,
L.L.C., 557 U.S. 519, 548 (2009) (Thomas J., dissenting).
10
Although it is not entirely clear, the court does not appear to contest my
conclusion that Jefferson Standard’s disloyalty principle—to the extent it is
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Because the statute is ambiguous on the question, “we defer . . . to the agency’s
interpretation so long as the construction is ‘a reasonable policy choice for the agency
to make.’” Brand X, 545 U.S. at 986 (quoting Chevron, 467 U.S. at 845); see Curtin
Matheson Sci., 494 U.S. at 786 (holding that Board has “considerable deference” in
determining the legal rule to apply and should be upheld “as long as it is rational and
consistent with the Act”). It would be difficult to conclude that the Board made an
unreasonable policy choice when, in Washington Aluminum and Red Top, the courts
found the employees’ motives determinative in the application of the disloyalty
exception, and even Jefferson Standard relied on employee motive in its analysis. See
Palmetto Prince George Operating, LLC v. NLRB, 841 F.3d 211, 216 (4th Cir. 2016)
(applying Brand X and concluding that “the Board adopted a reasonable
interpretation” of the Act where it “did nothing more than implement guidance
offered directly by the Supreme Court”).11 I therefore conclude that the Board’s
requirement that there be evidence of the employees’ malicious motive to reach a
finding of disloyalty should be upheld because it is “a permissible construction of the
statute.” Minn. Licensed Practical Nurses Ass’n v. NLRB, 406 F.3d 1020, 1025 (8th
Cir. 2005) (quoting Chevron, 467 U.S. at 843).
The court refuses to follow Brand X, asserting it “would leave the Board free
to disregard any prior Supreme Court or court of appeals interpretation of the
definable—is merely one interpretation of the ambiguous language in Sections 7 and
10(c).
11
I recognize that the Hormel court came to a different conclusion. 962 F.2d
at 1065. Hormel, however, addressed the Board’s standard for determining whether
an employee “support[ed] the consumer boycott” of the employer’s product, not the
standard for determining whether such support is disloyal. Id. at 1064 (emphasis
added). Here, by contrast, there is no dispute the employees supported the posters
and press release, and we address only whether those tactics were disloyal.
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NLRA.”12 That is in fact what Brand X allows, at least when the Act is ambiguous
and the Board’s interpretation reasonable. See Gutierrez-Brizuela v. Lynch, 834 F.3d
1142, 1143 (10th Cir. 2016) (Gorsuch, J.) (“[I]n recent years the Supreme Court has
instructed us that, when a statute is ambiguous and an executive agency’s
interpretation is reasonable, the agency may indeed exercise delegated legislative
authority to overrule a judicial precedent in favor of the agency’s preferred
interpretation.”). Because Jefferson Standard did not hold that Sections 7 and 10(c)
unambiguously required a disloyalty test that excluded a requirement that there be
evidence of the employees’ malicious motive, the Board was free, within the limits
of reasonableness, to construe the statutes to require such evidence.13
C.
Furthermore, the court’s definition of the “critical question” that the Board and
courts must address in disloyalty cases unjustifiably limits the protections of the Act.
It sets up a dichotomy in which communications “reasonably targeted at the
employer’s labor practices” are not disloyal, but those that “indefensibly disparage[]
the quality of the employer’s product or services” are disloyal. But this dichotomy
12
Brand X rejected the court’s interpretation of the cases it cites, stating that the
conclusion that stare decisis required an agency to follow the court’s construction of
a statute was based on a “mistaken reading” of the cases. 545 U.S. at 984 (citing
Neal, 516 U.S. 284, Lechmere, 502 U.S. 527, and Maislin, 497 U.S. 116). According
to the Supreme Court, Neal, Lechmere, and Maislin “allow a court’s prior
interpretation of a statute to override an agency’s interpretation only if the relevant
court decision held the statute unambiguous.” Id.
13
The court also asserts that Brand X does not apply where the Board is
interpreting “a statute intended to limit the Board’s authority.” Nothing in Brand
X—or any other case—supports such a limitation. In any event, “[t]here is no
indication . . . that [Section 10(c)] was designed to curtail the Board’s power in
fashioning remedies when the loss of employment stems directly from an unfair labor
practice.” Fibreboard, 379 U.S. at 217.
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finds no support in the case law14 or in any practical understanding of labor disputes.
In many cases, including this one, employees’ communications reflect a direct link
between an employer’s labor practice and the quality of the employer’s product or
service. See Diamond Walnut, 113 F.3d at 1278 (Wald, J. concurring in part and
dissenting in part) (“[E]mployees often seek to demonstrate how their interests and
those of the public coincide by arguing that labor disputes or poor working conditions
are harming the employer’s product.”); see, e.g., Montefiore, 621 F.2d at 517 (striking
doctors told patients “they would receive better medical care if they went to a ‘full
service, non-struck facility’”); St. Lukes, 268 F.3d at 578 (nurse accused the hospital
of “jeopardizing the health of mothers and babies by offering her and her counterparts
short shifts and more responsibilities”); Greyhound Lines, 660 F.2d at 355, 357 (bus
drivers’ “press release announcing the intent of employee drivers to strictly obey the
speed limit” suggested that the “‘slowdown’ was in protest of the enumerated
grievances”). Case in point, the Board here concluded, and the court appears to
agree, that “the safety issue raised [in the posters and press release]—employees
working while they are sick—was directly related to and in furtherance of the
ongoing dispute over the Respondent’s failure to provide paid sick leave.” MikLin,
361 N.L.R.B. No. 27, at *7. By limiting the content of employees’ communications
to attacks on the employer’s labor practices and barring most product disparagement,
the court “deprive[s] employees of what may be their most cogent argument for
obtaining the third party’s aid,” Diamond Walnut, 113 F.3d at 1279 (Wald, J.,
14
In support of this distinction, the court cites Diamond Walnut, where striking
union workers distributed leaflets that “described Diamond’s workforce as composed
of ‘scabs’ who packaged walnuts contaminated with ‘mold, dirt, oil, worms and
debris.’” 113 F.3d at 1261. But the Diamond Walnut court never addressed whether
this activity was protected under Section 7 or would constitute cause for discharge
under Section 10(c) because the petitioner never challenged these conclusions. Id.
at 1267. Instead, the court addressed whether the employer had a substantial business
justification for refusing to replace returning strikers in their selected jobs. Id. at
1263. To the extent the Diamond Walnut court addressed disloyalty, it did so only
in dicta. See id. at 1267 n.8.
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concurring in part and dissenting in part) (internal quotation omitted), “dampen[s] the
ardor of labor debate[,] and truncate[s] the free discussion envisioned by the Act,”
Linn, 383 U.S. at 64. See Sierra Pub. Co., 889 F.2d at 217 (“If unions are not
permitted to address matters that are of direct interest to third parties in addition to
complaining about their own working conditions, it is unlikely that workers’
undisputed right to make third party appeals in pursuit of better working conditions
would be anything but an empty provision.”); Red Top, 455 F.2d at 728 (“[H]arsh and
rough words may be exchanged between the parties without giving rise to a basis for
discharge consistent with the protections afforded under § 7 of the Act.”). It is not
for this court to say that public communications targeting the employer’s labor
practices “further the policy of the NLRA,” while those attacking product quality do
not. “Delineat[ing] precisely the boundaries” between protected and unprotected
communications should be left to the Board. Eastex, 437 U.S. at 568.
D.
In its merits analysis, the court criticizes the Board for requiring evidence of
employees’ malicious motive, but the court’s merits analysis proves how crucial
motive is to a disloyalty determination. The court looks to several aspects of the
employees’ intent: that they “cho[se] March as a ‘good time’ to launch” their
campaign, they “understood” the importance of MikLin’s “‘clean’ public image” and
yet directly attacked it, and they engaged in a “calculated, devastating” attack on
MikLin’s product. As the court admits, the “[e]mployees’ conscious decision to scare
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MikLin customers . . . was strong evidence of their intent to disparage MikLin . . . .”15
In any event, according the appropriate deference to the disloyalty standard
applied by the Board, I cannot say that the Board erred in finding that the poster and
the press release fell short of unprotected disloyalty. Considering both the
employees’ subjective intent and the reasonableness of the means used, the Board
found that the communications were directly tied to the dispute over MikLin’s
sick-leave policy, and the employees questioned the health of the product in an effort
to solicit the public’s support to change that policy. The communications described
the quality of MikLin’s product only in terms of how it was affected by the lack of
paid sick leave. The posters targeted an audience within a two-block radius of a
MikLin store and identified the person the audience should contact to show support.
The language used was not inflammatory, or intended to degrade or humiliate.
Nonetheless, reasonable minds could, and did, differ as to whether the means used by
the employees crossed the line from protected concerted activity into unprotected
“detrimental disloyalty.” Jefferson Standard, 346 U.S. at 472. Because I perceive
this as a “choice between two fairly conflicting views,” I believe we must affirm the
Board’s decision. Midwest Precision Heating & Cooling, Inc. v. NLRB, 408 F.3d
450, 458 (8th Cir. 2005) (quotation omitted). Accordingly, I would defer to the
Board’s finding that the Sandwich Poster campaign communications were not so
disloyal as to lose protection under the Act.
15
Similarly, while the court expressly limits its legal analysis to the disloyalty
exception, its merits analysis relies heavily on an unaddressed basis for losing the
Act’s protection: its conclusion that the communications were maliciously untrue.
Reasonable minds could conclude that alleged falsities in the poster and press release
gave MikLin cause to discharge the employees, but such a conclusion does not rest
on the court’s definition of disloyalty. See Five Star, 349 N.L.R.B. at 46 (in
evaluating disloyalty, “[i]t matters not whether the communications were true or
false”).
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E.
Because I conclude that the posters were protected activity, I would
accordingly find, deferring to the factual conclusions of the Board, that MikLin co-
owner Robert Mulligan’s Facebook posting, which solicited employees to remove the
posters, violated Section 8(a)(1).
______________________________
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Appendix A
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