Requesting paid sick leave.

Indicating that the lack of paid sick leave was an economic incentive for employees to work when they were ill, posing a risk to public safety.

Stating that the union would like to meet with MikLin to discuss the policy. If MikLin was not willing to meet, the union would post its poster in MikLin's stores and in public places citywide.

Boehnke's phone number and suggested that group members "let him know how you feel."

The message: "Fuck you David Forever."

Affirmed the ALJ's conclusion that:

Reversed the ALJ's conclusion and found that MikLin also violated Section 8(a)(1) when a store manager and assistant manager approved and urged others to spread the excrement-themed ridicule of Boehnke.

Affirmed the ALJ's conclusion that MikLin violated Sections 8(a)(3) and (1) of the NLRA by discharging six employees and disciplining three others because of their participation or perceived participation in the union's Sick Days poster campaign.

Held, with further analysis, that:

Whether the communications indicate that they are related to an ongoing labor dispute and whether they are so disloyal, reckless or maliciously untrue as to lose the NLRA's protection (MasTec Advanced Tech., 357 N.L.R.B. slip op. 17 at 5 (2011)).

Whether the communications were made at a "critical time in the initiation of the company's business" and whether they were so disparaging that they could be seen as "reasonably calculated to harm the company's reputation and reduce its income." (Valley Hosp. Med. Ctr., 351 N.L.R.B. 1250, 1252 (2007) (quoting Jefferson Standard), enfd. sub. nom. Service Employee Local 1107, 358 Fed. App'x 783 (9th Cir. 2009)).

Were expressly related to the ongoing labor dispute concerning the employees' wish for paid sick leave. Although the poster and press release suggested the potential risk of eating food prepared by a sick worker, they clearly connected that risk to issues involved in the labor dispute, and their primary message was to seek support for the workers' position in the dispute. Anyone viewing the posters and press release would reasonably understand that their motive 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.

Were not reckless or maliciously untrue. The statement in the posters and press release that "Jimmy John's workers don't get paid sick days" was factually accurate. Although the next statement, "shoot, we can't even call in sick," may not have presented the entirety of the employer's policy on sick days, it was an accurate characterization of the policy's impact. Before commencing the campaign, the union surveyed MikLin's employees, who reported that they worked while sick nearly 80% of the time due to MikLin's attendance policies. Employees also stated that they were directed to work while sick if there was no cover available for their shift. Furthermore, any reasonable reader would recognize that the poster's message involves the kind of exaggeration expected and tolerated in labor disputes (Jolliff v. NLRB, 513 F.3d 600, 611-613 (6th Cir. 2008)).

Were not "so disloyal" as to lose the protection of the NLRA. To lose the NLRA's protection as an act of disloyalty, an employee's public criticism of an employer must evidence a malicious motive (Valley Hosp. Med. Ctr., 351 N.L.R.B. at 1252). The Board will not find employee communications to third parties unprotected unless they are "flagrantly disloyal, wholly incommensurate with any grievance which [the employees] might have" (MasTec, 357 N.L.R.B. slip op. 17 at 6). "Concerted activity that is otherwise proper does not lose its protected status simply because [it is] prejudicial to the employer." (NLRB v. Circle Bindery, Inc., 536 F.2d 447, 452 (1st Cir. 1976)). Even communications that raise highly sensitive issues such as public safety have been found protected where they are sufficiently linked to a legitimate labor dispute and are not maliciously motivated to harm the employer. 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 (Sierra Publ. Co. v. NLRB, 889 F.2d 210, 220 (9th Cir. 1989)). The posters and press release did not constitute disloyalty or reckless disparagement because:

Although Boehnke was one of the leaders of the union effort, he was:

The supervisors’ encouragement on Facebook of employees to disseminate widely this degrading picture of an employee leader of the Wobblies was unlawful because it 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 (Dayton Hudson Corp., 316 N.L.R.B. 477, 477–478, 482–483 (1995)).

A co-owner of the employer participating in the public humiliation of a union supporter.

Even though he did not call for further harassment or ridicule of Boehnke, the action would still intimidate others and might interfere with their support for the union (Rankin & Rankin, Inc., 330 N.L.R.B. 1026 (2000) and Dayton Hudson Corp.).

Falsely claimed that it was impossible for employees to call in sick.

Exaggerated the potential public health problem and conveyed the message that customers are getting sick and will continue to get sick.

Contained public health danger claims that were not supported by "statistical proof or empirical analysis."

The posters and press release do not consistently distinguish between franchisor Jimmy John's and MikLin, a franchisee. This maximized the threat of substantial and lasting detriment to the MikLin 's and Jimmy John's reputation, and possibly threatened MikLin's franchise relationship with Jimmy John's.

Call on others to harass union-supporting employees.

Approve of and encourage the dissemination of degrading images or comments about union-supporting employees.