MIKLIN ENTERPRISES, INC. D/B/A JIMMY JOHN'S

National Labor Relations Board - Board Decisions

Aug 20, 2014

361 N.L.R.B. 283 (N.L.R.B. 2014)

JIMMY JOHN’S 283
MikLin Enterprises, Inc. d/b/a Jimmy John’s and
Industrial Workers of the World. Cases 18–CA–
019707, 18–CA–019727, and 18–CA–019760
August 21, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On April 20, 2012, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Charging Party filed answering briefs
and cross-exceptions. The Respondent filed briefs an-
swering the cross-exceptions and briefs in reply to the
answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 We affirm the judge’s conclusion that Mike Mulligan’s question-
ing of employee Micah Buckley-Farlee about employee Mike
Wilklow’s understanding and viewpoint was not unlawful. Under the
totality of circumstances test set forth in Rossmore House, 269 NLRB
1176, 1177–1178 (1984), affd. sub nom. Hotel Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985), we consider all the relevant
factors, including those discussed in Bourne v. NLRB, 332 F.2d 47, 48
(2d Cir. 1964). Although some facts tend to indicate coerciveness, on
balance, we find they are outweighed by other facts indicating this
incident was noncoercive (both Wilklow and Buckley-Farlee were open
and active union supporters; the conversation took place casually, in an
open area, rather than in an office or other locus of authority; and the
questioning was rhetorical). However, we emphasize that the open and
active character of the employees’ union support does not by itself
prove the questioning was lawful.
We also affirm the judge’s conclusion that the removal of the Un-
ion’s frequently asked questions (FAQ) flyer and a copy of the prior
Board charge from the general-use bulletin board at the Riverside store
violated Sec. 8(a)(1). There is no dispute that employees were permit-
ted to post literature, including other union literature, on the bulletin
boards without limitation. Under these circumstances, an employer
may not selectively remove postings based on their content. Roll &
Hold Warehouse & Distribution Corp., 325 NLRB 41, 51 (1997),
enfd.162 F.3d 513, 516 fn. 3 (7th Cir. 1998); and Jennings & Webb,
Inc., 288 NLRB 682, 692 (1988). The accuracy of the union’s message
or the extent of its hyperbole is not relevant. Roll & Hold, supra.
Moreover, we find no support for the Respondent’s assertion that the
literature had a tendency to cause workplace disruption.
except as modified below and to adopt the recommend-
ed Order as modified and set forth in full below.3
Background
The Respondent, MikLin Enterprises, Inc., operates 10
sandwich shops in the greater Minneapolis-St. Paul,
Minnesota area as a franchisee of Jimmy John’s, a na-
tionwide fast food enterprise.4 In October 2010, a repre-
sentation election was held in a unit covering employees
in all 10 MikLin shops to determine whether employees
wished to be represented by Charging Party Industrial
Workers of the World (IWW or the Union). Employees
in the bargaining unit included in-shop sandwich makers,
delivery drivers, and persons in charge. After losing the
election by an 85–87 margin, the Union filed election
objections and related unfair labor practice allegations,
which were settled on January 10 and 11, 2011, respec-
tively.5
The relevant incidents in this case occurred from Janu-
ary to March 2011.6 They involve, among other things,
the Respondent’s discipline of employees in response to
the employees’ public communications concerning their
efforts to achieve paid sick leave.
Analysis
1. Discipline for participation in the Union’s
“Sick Days” campaign7
Employees at MikLin were not provided paid sick
leave for their own illnesses. If they were too sick to
work, they were required to seek and find replacements
for their shift or risk receiving discipline. Lack of paid
sick leave was one of the issues employees raised with
the Union during the organizing campaign. In late Janu-
3 We substitute a new Order and notice to conform to the violations
found and to the Board’s standard remedial language. We clarify that
the 8(a)(1) allegations referenced in the judge’s Conclusions of Law,
pars. 1 through 4, were neither alleged nor found to have also violated
Sec. 8(a)(3). Consistent with our decision in Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB 101 (2014), the Order requires the
Respondent to reimburse the discriminatees for the adverse tax conse-
quences, if any, of receiving lump sum backpay awards, and to file a
report with the Social Security Administration allocating the backpay to
the appropriate calendar quarters.
4 The record indicates there are approximately 40–50 additional
Jimmy John’s operations in the greater Minneapolis-St. Paul area, and
that there are approximately 1400 stores nationwide, the vast majority
of which are also franchises.
5 Among other things, the settlement provided for setting aside the
election and withdrawing the petition, with the provision that the Re-
spondent would agree to another election to be held within 30 days of a
new petition’s filing in the period from 60 days to 18 months after the
settlement.
6 Dates are in 2011, unless otherwise indicated.
7 For the reasons set forth in Member Johnson’s separate opinion, he
dissents from the majority’s analysis and legal conclusions in this sec-
tion.
361 NLRB No. 27

284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ary or early February, the Union placed identical posters
about the sick leave policy on community bulletin boards
in the Respondent’s stores. The poster displayed side-
by-side pictures of a sandwich, one described as made by
a healthy Jimmy John’s worker and the other as made by
a sick worker. The poster stated, “Can’t Tell the Differ-
ence? That’s too bad because Jimmy John’s workers
don’t get paid sick days. Shoot, we can’t even call in
sick. We hope your immune system is ready because you
are about to take the sandwich test . . . . Help Jimmy
John’s workers win sick days.” The poster provided con-
tact information for the Union. The Respondent’s man-
agers removed the posters whenever they discovered
them in their stores.8
On March 10, four employees went to the office of
Rob Mulligan, co-owner and vice president of MikLin, to
speak to him about the Respondent’s sick leave policy.
They gave Mulligan a letter from the Union asking for
paid sick leave and indicating that MikLin’s lack of paid
sick leave provided an economic incentive for employees
to work when they were ill, which also allegedly posed a
risk to public safety. The letter further stated that the
Union would like to meet with MikLin to discuss the
policy. If MikLin did not show a willingness to meet,
the Union would post its Sick Days posters in MikLin’s
stores and in public places citywide. The Union issued a
related press release the same day, which included a copy
of the Sick Days poster.
The Respondent declined to meet with the Union.9
Consequently, on March 20, employees posted the Sick
Days posters in MikLin’s stores and in public places in
nearby blocks. This version of the poster contained text
in place of the Union’s contact information stating, “Call
the owner Rob Mulligan at [telephone number] to let him
know you want healthy workers making your sandwich-
es.” Mulligan and other managers removed as many
posters as they could find. Two days later, the Respond-
ent discharged six employees and issued written warn-
ings to three other employees for their participation in
the poster campaign.
We agree with the judge, for the reasons further dis-
cussed below, that the discharges and warnings were
unlawful because the disciplined employees’ participa-
tion in the Union’s Sick Days campaign was protected
activity. It is well settled that employees are protected
under the “mutual aid or protection” clause of Section 7
when they seek to “improve their lot as employees
8 The removal of the Sick Days posters from MikLin’s stores and
public places was not alleged to have violated the Act.
9 There is no allegation that MikLin was under a legal obligation to
meet with employees or the Union about their request for changes in
the sick time policy.
through channels outside the immediate employee-
employer relationship.” Eastex, Inc. v. NLRB, 437 U.S.
556, 565 (1978). In the instant case, however, the Re-
spondent and our dissenting colleague contend that the
communications were disloyal, and therefore unprotect-
ed, under NLRB v. Electrical Workers Local 1229 (Jef-
ferson Standard), 346 U.S. 464 (1953).
In Jefferson Standard, the Supreme Court upheld the
Board’s determination that a broadcast company did not
act unlawfully when it fired its technicians for distrib-
uting handbills that disparaged the quality of the compa-
ny’s programming at a critical time in the initiation of its
television service,10 where “the attack related itself to no
labor practice of the company” and made no reference to
working conditions. Id. at 476. The Court emphasized
that the handbillers took pains to separate their labor dis-
pute from the attack on the company’s product, and that
the attack focused on “public policies of the company
which had no discernible relation” to the labor dispute.
Id.
In analyzing whether employee communications to
third parties exceed the protections of the Act under Jef-
ferson Standard, the Board has focused on whether the
communications indicate that they are related to an ongo-
ing labor dispute and whether they are “so disloyal, reck-
less or maliciously untrue as to lose the Act’s protec-
tion.” MasTec Advanced Technologies, 357 NLRB 103,
107 (2011). As to disloyalty, the Board additionally con-
siders whether the communications were made at a “crit-
ical 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 reputa-
tion and reduce its income.” Valley Hospital Medical
Center, 351 NLRB 1250, 1252 (2007) (quoting Jefferson
Standard, 346 U.S. at 472), enfd. sub. nom. Service Em-
ployee Local 1107, 358 Fed.Appx. 783 (9th Cir. 2009). 11
10 The handbills read:
Is Charlotte A Second-Class City?
You might think so from the kind of Television programs being pre-
sented by the Jefferson Standard Broadcasting Co. over WBTV. Have
you seen one of their television programs lately? Did you know that
all the programs presented over WBTV are on film and may be from
one day to five years old. There are no local programs presented by
WBTV. You cannot receive the local baseball games, football games
or other local events because WBTV does not have the proper equip-
ment to make these pickups. Cities like New York, Boston, Philadel-
phia, Washington receive such programs nightly. Why doesn’t the Jef-
ferson Standard Broadcasting Company purchase the needed equip-
ment to bring you the same type of programs enjoyed by other leading
American cities? Could it be that they consider Charlotte a second-
class community and only entitled to the pictures now being presented
to them?
Id. at 468.
11 Although the timing of the communication is a factor the Board
considers, it is not determinative in itself. The Board has

JIMMY JOHN’S 285
Applying the MasTec analytical framework we find,
contrary to our dissenting colleague, that neither the
posters nor the press release were shown to be so disloy-
al, reckless, or maliciously untrue as to lose the Act’s
protection.12
a. The Communications were Expressly Related
to an Ongoing Labor Dispute
The Sick Days posters and press release by the Union
were clearly related to the ongoing labor dispute con-
cerning the employees’ desire for paid sick leave. The
posters announced that “Jimmy John’s workers don’t get
paid sick days,” and appealed to the public to “Help
Jimmy John’s Workers Win Sick Days.” While the post-
ers and press release also suggested a potential risk to the
public of eating food prepared by a sick employee, the
communications 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 dis-
pute. See, e.g., Mitchell Manuals, Inc., 280 NLRB 230,
231 (1986) (although employees’ message was “couched
in terms of criticism of Respondent’s operations, the
thrust of the letter is the employees’ proposal for increas-
ing the professionalism of their jobs”). Indeed, any per-
son viewing the posters and press release would reasona-
bly understand that the motive for the communications
was to garner support for the campaign to improve the
employees’ terms and conditions of employment by ob-
taining paid sick leave rather than to disparage the Re-
spondent or its product. See Jefferson Standard, 346
U.S. at 468.
Having found that the posters and press release were
directly linked to the ongoing labor dispute, the remain-
ing issue is whether they lost protection based on reck-
lessness, disloyalty, or malicious untruth. MasTec, 357
NLRB 103, 107; Allied Aviation Service Co. of New Jer-
sey, Inc., 248 NLRB 229, 231 (1980), enfd. mem. 636
F.2d 1210 (3d Cir. 1980).
b. The Communications were not Reckless or
Maliciously Untrue
We agree with the judge that none of the statements in
the posters or the press release was maliciously untrue
and unprotected. “Statements are maliciously untrue and
unprotected, if they are made with knowledge of their
falsity or with reckless disregard for their truth or falsity.
The mere fact that statements are false, misleading or
found disloyal communications to be unprotected, even where they
were not made at a critical time in a company’s business. See, e.g.,
Mountain Shadows Golf Resort, 330 NLRB 1238 (2000).
12 We do not rely on the judge’s comments regarding what the Re-
spondent might have done by way of a countercampaign, which we find
immaterial.
inaccurate is insufficient to demonstrate that they are
maliciously untrue.” MasTec, 357 NLRB 103, 107 (in-
ternal quotation marks and citations omitted). See also
Mitchell Manuals, 280 NLRB at 232 (rejecting conten-
tion that the letter was unprotected even if it contained
arguably false statements in the absence of evidence that
they were deliberately or maliciously so because the “fal-
sity of a communication does not necessarily deprive it
of its protected character”).
Here, the statement in the posters and press release that
“Jimmy John’s workers don’t get paid sick days” was
factually accurate. Although the further statement,
“shoot, we can’t even call in sick,” may not have pre-
sented the entirety of the employer’s policy on sick days,
it was an accurate characterization of the impact of that
policy. Significantly, it was an almost verbatim repeti-
tion of Jimmy John’s employee rule 11 (“We do not al-
low people to simply call in sick! NO EXCEPTIONS!”).
Further, under the Respondent’s attendance policy, sick
employees who are unable to find a replacement were
penalized—they generally were required to work to
avoid discipline.13
Before commencing the Sick Days campaign, the Un-
ion conducted a survey in which the Respondent’s em-
ployees were asked how often they worked while sick
and why. Employees reported that they worked while
sick nearly 80 percent of the time, and they overwhelm-
ingly implicated the Respondent’s attendance policies as
the reason they did so. Thus, 40 percent of employees
who responded reported that they worked while sick be-
cause they were unable to find a replacement, 30 percent
reported that they could not afford to take unpaid time
off, and 30 percent cited both factors. Moreover, em-
ployees who participated in the Sick Days campaign tes-
tified without contradiction that they were personally
directed to work while sick by supervisors or managers,
when there was no one available to cover their shift.
Thus, the poster and press release conveyed, and were
intended to convey, the impression that employees felt
compelled to work when they were sick because of the
Respondent’s attendance policies; i.e., they were effec-
tively denied the ability to call in sick. Because that im-
13 On March 16, the Respondent implemented a new progressive
disciplinary policy. Under the new policy, no points are assessed if an
employee does not report to work but finds a replacement. One point is
assessed if an employee calls his or her manager at least 1 hour before
their shift without finding a replacement. Two points are assessed if an
employee calls his or her manager less than an hour before the start of
the shift. Three points are assessed for a no call/no show. Points are
also assessed for tardiness. Points accumulate on a rolling 12-month
basis, and an employee receives a disciplinary coaching for 1 point, a
recorded verbal warning after accumulating 2 points, a written warning
for 3 points, and is terminated after accumulating 4 points.

286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pression is amply supported by the record evidence, the
statement “[s]hoot, we can’t even call in sick” falls far
short of being maliciously false. MasTec, 357 NLRB
103, 108 (“Any arguable departures from the truth were
no more than good-faith misstatements or incomplete
statements, not malicious falsehoods justifying removal
of the Act’s protection.”).14 Moreover, any reasonable
reader would recognize that the poster’s message in-
volves the kind of hyperbole expected and tolerated in
labor disputes. Jolliff v. NLRB, 513 F.3d 600, 611–613
(6th Cir. 2008) (court considers that members of society
generally understand that speech made in public settings
such as protests or strikes is likely to be rhetorical and
exaggerated); Sierra Publishing Co. v. NLRB, 889 F.2d
210, 217 (9th Cir. 1989) (“[T]hird parties who receive
appeals for support in a labor dispute will filter the in-
formation critically so long as they are aware it is gener-
ated out of that context.”).
c. The Communications were not “So Disloyal”
as to Lose the Protection of the Act
Finally, we find that the posters and press release were
not so disloyal or recklessly disparaging as to warrant
removal of protection for employees who participated in
the Sick Days campaign. In Valley Hospital Medical
Center, supra, the Board summarized the disloyalty
standard as follows:

Statements have been found to be unprotected as
disloyal where they are made at a critical time in the
initiation of the company’s business and where they
constitute 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. . . .
The Board is careful, however, to distinguish be-
tween disparagement of an employer’s product and
the airing of what may be highly sensitive issues. . . .
To lose the Act’s protection as an act of disloyalty,
an employee’s public criticism of an employer must
evidence a malicious motive. [351 NLRB at 1252
(internal quotation marks and citations omitted).]

Indeed, the Board will not find employee communications
to third parties unprotected unless they are “flagrantly dis-
loyal, wholly incommensurate with any grievance which
[the employees] might have.” MasTec, supra at 103, 108.
In Professional Porter & Window Cleaning Co., 263
NLRB 136, 136, 139 (1982), enfd. 742 F.2d 1438 (2d
14 As we have recognized, the “mere labeling of [a communication]
as libelous or slanderous cannot substitute for affirmative evidence of
malice.” Cincinnati Suburban Press, 289 NLRB 966, 967–968 (1988)
(while allegedly inaccurate, employee’s communication was not suffi-
ciently reckless or maliciously untrue as to lose protection).
Cir. 1983), for example, employees of a custodial com-
pany did not lose protection when they wrote to the own-
ers of the nursing home they cleaned complaining that
their employer was using inferior products and had taken
away necessary supplies, resulting in “the floors [] not
really being cleaned” and “th[e] facility [] deteriorating,”
where their purpose was to appeal to the building owner
for support in their labor dispute, rather than to injure the
employer by impugning its operations. Similarly, in
Emarco, Inc., 284 NLRB 832 (1987), the Board found
that remarks made by employees of a subcontractor to
the general contractor about their employer, that “these
people never pay their bills . . . can’t finish the job . . .
[are] no damn good” and “this job is too big for them,”
were not so disloyal or reckless as to forfeit the Act’s
protection as they were made in the context of and ex-
pressly linked to a dispute over their employer’s failure
to make timely contributions to the union welfare and
pension funds. Id. at 833. Although the remarks would
tend to undermine the business relationship between the
general contractor and the employer, the Board neverthe-
less found that they were protected, reasoning that they
were “not in the nature of a personal attack unrelated to
the . . . [employer’s] labor practices.” Id. at 834. The
Board further stated that “employee speech is often an
essential means of achieving group goals and to deny
protection to this type of activity would nullify the rights
guaranteed by Section 7 of the Act.” Id.
As these cases demonstrate, “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).15
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.
For example, in Five Star Transportation, Inc., 349
NLRB 42 (2007), enfd. 522 F.3d 46 (1st Cir. 2008), 11
school bus drivers wrote letters urging a school commit-
tee not to award a transportation contract to the company
that submitted the lowest bid. The Board found that let-
15 It is well settled that concerted activity is not denied protection by
the Act simply because it could have a detrimental impact on an em-
ployer and thus could be characterized as disloyal. Primary strikes and
boycotts, for example, are normally within the ambit of Sec. 7’s “pro-
tected concerted activities” notwithstanding the fact that their purpose
is to cause economic harm to employers. As stated in NLRB v. Peter
Cailler Kohler Swiss Chocolates Co., 130 F.2d 503, 506 (2d Cir. 1942):
Such activities may be highly prejudicial to [the] employer; his cus-
tomers may refuse to deal with him, he may incur the enmity of many
in the community whose disfavor will bear hard upon him; but the
statute forbids him by a discharge to rid himself of those who lay such
burdens upon him. Congress has weighed the conflict of his interest
with theirs, and has pro tanto shorn him of his powers.

JIMMY JOHN’S 287
ters written by six of the drivers were protected – even
though they warned that awarding the contract to the
low-bidder would compromise student safety16—because
the references to student safety “occurred in the context
of the drivers expressing their common employment
concerns.” Id. at 47.17 In affirming the Board, the court
explained:

It is widely recognized that not all employee activity
that prejudices the employer, and which could thus be
characterized as disloyal, is denied protection by the
Act. . . . Indeed, were harm or potential harm to the
employer to be the determining factor in the . . . § 7
protection analysis, it is doubtful that the legislative
purposes of the Act would ever be realized. [522 F.3d
at 53–54.]

In the same vein, in Allied Aviation, 248 NLRB at
230–231, the Board, with court approval, found that let-
ters from a union steward to an airline claiming that his
employer’s practices relating to the servicing and
maintenance of ground vehicles created a safety hazard
for airline personnel and customers were protected be-
cause they were linked to ongoing grievances over em-
ployee discipline. In language that is equally applicable
to the instant case, the Board held that “absent a mali-
cious motive [an employee’s] right to appeal to the pub-
lic is not dependent on the sensitivity of [the employer]
to his choice of forum,” and the Board emphasized that a
16 For example, driver Suzanne LeClair wrote, “There are several
safety concerns with this company, which you have been made aware
of, and you can’t put a dollar sign on safety.” LeClair predicted that if
the company was awarded the contract that the drivers would lose all
their benefits. She continued, “What will you be left with? . . . School
bus drivers that don’t know your children or care if they get home
safely, or in a timely fashion and poorly maintained busses!?” Driver
Caron Rose told the school committee that based on her review of
newspaper articles and conversations with former employees of the
company that she had concerns about the safety of students if the com-
pany was awarded the school bus contract. She then stated: “I know
this company had the low bid for the contract, but can a price be put on
the safety and well being of our children?” Finally, driver Pauline Tay-
lor stated: “I have heard some stories about Five Stars drivers and how
their company is runed [sic]. It really worries me. I am concerned about
driving for Five Star and very concerned about letting my children ride
on their buses.” Id. at 57–58.
17 In contrast, the Board found that letters written by five other driv-
ers were unprotected because they either failed to raise employment-
related concerns or used inflammatory language to describe the compa-
ny in a manner that suggested that the drivers intended to damage the
company’s reputation. Id. at 44–47. For example, driver Andrea
MacDonald stated that the company was “so reckless that they have
employed alcohol abusers, drug offenders, child molesters, and persons
that have had their license suspended.” Similarly, driver Patty Grasso
voiced her concern over “the incompetence and negligence” of the
company’s management, and driver Donald Caouette criticized the
company for being “careless” in its hiring and for its poor reputation.
Id. at 46.
contrary ruling “would effectively serve to preclude em-
ployees from protesting safety matters through requests
for assistance from third parties . . . particularly in the
airline industry, [where safety] is by its very nature a
potentially volatile issue.” Id. at 231.18 See also Valley
Hospital Medical Center, 351 NLRB at 1261 (finding
protected employee statements at a press conference that
due to short staffing at the hospital, “You don’t get med-
ications to patients on time. They could be lying in their
excrement for who knows how long. You can’t even do
the basic things you want to do,” where the intent was to
pressure the employer to increase staffing).
In protecting employee communications that are criti-
cal of the employer or its product where the communica-
tions relate to a labor dispute, the Board has adhered to
the specific holding of Jefferson Standard, supra, and its
approach has been upheld by numerous courts. See, e.g.,
Sierra Publishing Co. v. NLRB, 889 F.2d at 220 (“Prod-
uct disparagement unconnected to the labor dispute,
breach of important confidences and threats of violence
are clearly unreasonable ways to pursue a labor dispute.
On the other hand suggestions that a company’s treat-
ment of its employees may have an effect upon the quali-
ty of the company’s products . . . are not likely to be un-
reasonable particularly in cases when the addressees of
the information are made aware of the fact that a labor
dispute is in progress. . . . Each situation must be exam-
ined on its own facts, but with an understanding that the
law does favor a robust exchange of viewpoints.”). Ac-
cord: Five Star Transportation., Inc. v. NLRB, supra;
Misericordia Hospital Medical Center v. NLRB, 623
F.2d 808, 814–815 (2d Cir. 1980); Community Hospital
of Roanoke Valley, Inc. v. NLRB, 538 F.2d 607, 610 (4th
Cir. 1976) (distinguishing Jefferson Standard on ground
18 We are not persuaded by the Respondent’s argument that the
standard for disloyalty is different in the food industry compared to
other businesses. Although customers may be alarmed by a potential
health threat in the food industry, we cannot say that the public would
be any less sensitive to inferences of safety problems in, for example,
school bus transportation, Five Star, supra, the aviation field, Allied
Aviation, supra, or health care settings, Valley Hospital Medical Center,
supra. In this regard, the Respondent’s (and our dissenting colleague’s)
reliance on Coca Cola Bottling Works, 186 NLRB 1050, 1054–1055
(1970), enfd. in part 466 F.2d 380 (D.C. Cir. 1972), is misplaced. In
Coca Cola, statements were unprotected because the Board found they
disparaged the quality of the product with the purpose of instilling fear
in customers. Since deciding Coca Cola, Board law has developed
considerably in its approach to the question of employee disloyalty.
See discussion, supra. Here, where the judge considered that the post-
ers’ message was closely tied to the employees’ interest in obtaining
sick days, the labor dispute is made clear in the posters, and the posters
were not shown to be maliciously untrue, the posters are protected. We
agree with the judge that, to the extent Coca Cola’s holding is incon-
sistent with Allied Aviation and subsequent cases, it has been implicitly
overruled.

288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that disparaging comments were “directly related to pro-
tected concerted activities then in progress”); NLRB v.
Cement Transport, Inc., 490 F.2d 1024, 1029–1030 (6th
Cir. 1974), cert. denied 419 U.S. 828 (1974) (“[T]he
most repulsive speech enjoys immunity provided it falls
short of a deliberate or reckless untruth, so long as the
allegedly offensive actions are directly related to activi-
ties protected by the Act and are not so egregious as to be
considered indefensible.”) (internal quotation marks and
citation omitted). See also NLRB v. Washington Alumi-
num Co., 370 U.S. 9, 17 (1962) (interpreting Jefferson
Standard).
We find that the posters and press release did not con-
stitute disloyalty or reckless disparagement, as previous-
ly defined by Board and court precedent. First, there is
no evidence that the communications were made “at a
critical time in the initiation” of the Respondent’s busi-
ness. Jefferson Standard, 346 U.S. at 472. Further, alt-
hough the posters and press release shed unwelcome
light on issues affecting public safety, they did not use
inflammatory language, and their message did not stray
from the context of the labor dispute. In particular, the
safety issue raised—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. While the employees may have antici-
pated that some members of the public might choose not
to patronize the Respondent’s restaurants after reading
the posters or press release, there is no evidence that their
purpose was to inflict harm on the Respondent, or that
they acted recklessly without regard for the economic
detriment to the Respondent’s business. Rather, by urg-
ing the public to “Help Jimmy John’s Workers Win Sick
Days,” the employees demonstrated that they were moti-
vated by a sincere desire to improve their terms and con-
ditions of employment by obtaining a more flexible at-
tendance policy that included paid sick leave. See, e.g.,
Professional Porter & Window Cleaning, 263 NLRB at
139 (employees demonstrated that their purpose was to
appeal to the building owner for support in their labor
dispute rather than to injure their employer by impugning
its operations).
In reaching a contrary conclusion, our dissenting col-
league cites a variety of circumstances that, in his view,
allow for the inference that the communications were
disloyally and maliciously intended to harm the Re-
spondent, and are therefore unprotected under Board and
court precedent. None of the factors, however, with-
stands scrutiny, as each either lacks evidentiary support
or is contrary to established law. First, the dissent main-
tains that the “central claim” of the posters was the “false
claim that it was impossible for employees to call in
sick.” As our discussion above makes clear, however,
the statement remains well within the permissible bounds
set by our case law.
Second, the dissent contends that the posters “greatly
exaggerated the potential public health problem” and
conveyed the message that “customers are getting sick
and will continue to get sick.” Yet the posters and press
release did not allege that any sandwiches were actually
contaminated—despite our colleague’s gratuitous refer-
ences to the “contaminated-sandwich campaign”—or that
any customers became sick from eating sandwiches
made in the Respondent’s shops.19 Rather, they only
suggest the realistic potential for illness resulting from
the handling of food by workers who come to work while
sick.20
To support his position, our dissenting colleague also
asserts that the poster’s claim of a public health danger
was not supported by “statistical proof or empirical anal-
ysis.” With due respect to our colleague, this argument
misconstrues the applicable standard. “Specificity and/or
articulation are not the touchstone of union or protected
concerted activity. . . . Once the concerted nature of the
words is established . . . respondent ha[s] the burden to
show that the words were published with the knowledge
of their falsity or with a reckless disregard of whether
they were true or false.” Diamond Walnut Growers, 316
NLRB 36, 47 (1995) (quoting Springfield Library & Mu-
seum, 238 NLRB 1673, 1673 (1979). In none of the rel-
evant cases did the Board or courts require empirical
evidence in support of the employees’ claim, a new
19 Our dissenting colleague claims support for his position that the
posters exaggerated the potential public health risk and thereby evi-
denced a malicious motive in the judge’s statement that “[g]iven Re-
spondent’s record over a 10-year period [of only two food-borne out-
breaks] one could regard the risk of becoming ill by eating at one of
Respondent’s shops to be infinitesimal.” The dissent omits the sen-
tence that immediately followed: “However, it is also arguable that
Respondent’s policies make it somewhat more likely that such an inci-
dent could reoccur.” The judge went on to find that employees who are
ill are more likely to work while ill if they do not have paid sick leave
or are required to obtain a replacement.
20 There is likewise no basis for the dissent’s claim that the posters
evidenced a malicious motive because they “failed to show any remote-
ly reasonable correlation between the alleged health problem and the
employer’s lack of paid sick leave.” We are confident that the correla-
tion was readily apparent to most readers. It is widely recognized that
infected food workers can spread a variety of foodborne pathogens. As
found by the judge in this case, “[t]he lack of paid sick leave provides a
powerful economic incentive for employees to work when ill.” Conse-
quently, by providing paid sick leave or implementing a more flexible
attendance policy, employers in the food service industry can reduce
foodborne outbreaks. See “Foodborne Outbreaks: Preventing Future
Outbreaks,” http://www.cdc.gov/foodsafety/outbreaks/prevention-education/future.html
(last visited on 6/11/2014) (“[e]ncouraging food workers not to work
when they are ill . . . by providing paid sick leave” will reduce food-
borne outbreaks).

JIMMY JOHN’S 289
standard urged by our dissenting colleague. See, e.g.,
Allied Aviation, supra; Five Star Transportation, supra;
and Valley Hospital Medical Center, supra. But, even if
that were the standard, there is no lack of data establish-
ing that the preparation and handling of food by sick
workers poses a danger to public health. A 2011 study
conducted by the U.S. Centers for Disease Control and
Prevention (CDC) estimates that 48 million people (1 out
of 6) get sick from eating tainted food every year, leading
to 125,000 hospitalizations and 3000 deaths.21 Norovirus
is the leading cause of foodborne illness and a leading
cause of hospitalizations and deaths.22 “Most often, food
is contaminated [with norovirus] by infected food han-
dlers.”23 Infected food handlers “can easily contaminate
food and drinks” causing outbreaks of norovirus and oth-
er foodborne illnesses such as E. coli, salmonella, and
shigella.24
The dissent argues that “[t]he majority should not al-
low the experience of other employers to serve as an ef-
fective justification for an evidence-free allegation
against this employer.” However, this ignores evidence
that the Respondent’s sandwiches have, on two separate
occasions, been cited in State health department reports
as the source of a public norovirus outbreak, which in-
vestigators determined was most likely caused by sick
employees. The dissent also contends that the standard
applied by the majority “leads to the Board simply sub-
stituting its preferences on the merits of an employer’s
sick policies for the employer’s, in violation of the Act.”
However, we do not hold that the Respondent was re-
quired to give in to the employees’ demands, only that it
could not lawfully discharge or discipline employees for
engaging in the protected concerted activity at issue in
this case.
Finally, the Respondent and our dissenting colleague
make much of the fact that the posters and press release
do not consistently distinguish between franchisor Jimmy
John’s and the Respondent, a franchisee. We fail to see
how this evidences a malicious motive. Although the
sandwich shops are operated by the franchisee, they are
held out and known as Jimmy John’s. Our dissenting
colleague nevertheless asserts that by failing to distin-
guish between the Respondent and the franchisor, the
21 See the CDC’s webpage “CDC Estimates of Foodborne Illness in
the United States,” http://www.cdc.gov/foodborneburden/2011-
foodborne-estimates.html (last visited on 6/11/2014).
22 Id.
23 “CDC Estimates of Foodborne Illness in the United States: Ques-
tions and Answers,” http://www.cdc.gov/foodborneburden/questions-
and-answers.html (last visited on 6/11/2014).
24 “Norovirus: For Food Workers: Norovirus and Working with
Food,” http://www.cdc.gov/norovirus/food-handlers/work-with-
food.html (last visited on 6/112014).
employees maximized the threat of substantial and last-
ing detriment to the Respondent’s reputation, and possi-
bly “even threaten[ed] MikLin’s franchise relationship
with Jimmy John’s.” Whatever value such an argument
might have in another case, it is inapposite here, for sev-
eral reasons. First, it is well settled that the protection of
the Act extends to employees’ concerted activities under-
taken on behalf of employees of a different employer.
NLRB v. Peter Cailler Kohler Swiss Chocolates Co.,
Inc., 130 F.2d at 505–506. The Sick Days campaign was
clearly intended to benefit in part employees of other
employers, including employees of other Jimmy John’s
franchises, by bringing to the public’s attention a
“marked increase in workers unable to take sick leave.”25
The press release thus states, “[t]he issue of working
while sick has become a staple concern for countless
workers in the service industry and beyond, accelerated
by the turn to a fast food model without benefits or job
security.” Second, although Owner Michael Mulligan
testified that the franchisor was aware of the posters and
press release and that the Respondent was in communica-
tion with the franchisor on a regular basis throughout the
union campaign, the Respondent offered no evidence that
the posters or press release undermined or damaged its
relationship with the franchisor. Finally, to the extent the
franchisor might have been concerned about damage to
its brand caused by the posters and press release, the dis-
sent fails to explain why it would retaliate against the
Respondent, whose interests in the matter were clearly
aligned with its own.
In sum, we find that the employees involved in the
poster campaign did not engage in disloyal, reckless, or
maliciously untrue conduct. MasTec, supra. We there-
fore affirm the judge’s conclusion that the Respondent
violated Section 8(a)(3) and (1) by discharging six em-
ployees and disciplining three others because of their
participation or perceived participation in the Union’s
Sick Days poster campaign.26
25 Although the October 2010 election was held in a unit limited to
the Respondent’s employees, the Union campaigned nationwide and its
membership was open to all Jimmy John’s employees.
26 We also agree with the judge that Co-owner Rob Mulligan violat-
ed Sec. 8(a)(1) when he solicited and encouraged employees to take
down the Sick Days posters, which we find protected. Such conduct by
a high-level supervisor chills employees’ exercise of their Sec. 7 rights.
See, e.g., Waco, Inc., 273 NLRB 746, 749 (1984).
Having found that the six employees were discriminatorily dis-
charged, we find it unnecessary to reach the General Counsel’s alterna-
tive argument that, even if the posters were not protected, the six were
discharged in violation of Sec. 8(a)(3), because, as union leaders, their
punishment was more severe than that given to the so-called “foot
soldiers” of the poster campaign.
We agree with the judge that the Respondent has not demonstrated
that the discriminatees engaged in the kind of flagrant, postdischarge

290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The Respondent’s statements about Boehnke and
his involvement in the union campaign
We affirm the judge’s finding that the Respondent vio-
lated Section 8(a)(1) when Assistant Manager Rene
Nichols encouraged employees, supervisors, and manag-
ers to harass employee David Boehnke, a strong union
supporter, by means of postings on the antiunion Face-
book page used by MikLin’s employees, including post-
ing Boehnke’s phone number and soliciting employees to
call him. As set forth in substantial detail in the judge’s
decision, employees and managers engaged in consider-
able disparaging, crude, and profane language related to
the organizing activities, often at the expense of cowork-
ers who supported the Union. We agree with the judge
that much of this banter, if at times distasteful, was not
unlawful, because it was either posted by nonsupervisory
employees or was the kind of vituperative speech the Act
tolerates during the heat of labor relations.27 See
Trailmobile Trailer, LLC, 343 NLRB 95 (2004). But,
Supervisor Nichols’ encouragement of employees to har-
ass Boehnke in response to his involvement with the un-
ion campaign went beyond the bounds of mere opinion
or exuberance during the heat of a labor campaign. Id.
Moreover, in contrast to the judge, we find the post-
ings by two other supervisors, Eddie Guerrero and
Melissa Erickson, were also unlawful, because, similar to
solicitations in the postings by Nichols, they encouraged
employees to disparage employee Boehnke because of
his union activity. As the judge discussed, a former Mi-
kLin employee Ben McCarthy, who had been fired for
putting excrement in Boehnke’s coat pocket months ear-
misconduct that might excuse the Respondent from its reinstatement or
backpay remedial obligations. Hawaii Tribune-Herald, 356 NLRB
661, 6622–6633 (2011), enfd. 677 F.3d 1241 (D.C. Cir. 2012). Moreo-
ver, no actions that may have been taken after the employees were
terminated would cause the employees’ involvement in the pretermina-
tion Sick Days poster campaign to lose the Act’s protection.
27 In accord with the judge, we find that Nichols’ Facebook posting
stating that if employees are sick of working sick, then she is sick of
working with them, was not shown to be an unlawful threat, as it did
not have a tendency to coerce employees; it was instead a response to
the Union’s campaign slogan. Further, we agree with the judge that the
statements by person-in-charge Sam Alarcon were not shown to be
unlawful, due to an absence of proof regarding her supervisory status.
In contrast to her colleagues, Member Schiffer would find that the
comments by Rob Mulligan on the employees’ antiunion Facebook
page referring to Boehnke as the “unibrowner” were also unlawful,
because they subjected a known union supporter to ridicule by the
company co-owner. The Board may find vulgar personal attacks or
humiliating insults against union supporters to violate Sec. 8(a)(1),
even absent an express call to action. Rankin & Rankin, Inc., 330
NLRB 1026, 1037 (2000). Here, Member Schiffer would find that
Mulligan’s participation in the ongoing, public humiliation of Boehnke
would reasonably interfere with, coerce, and restrain other employees
who would fear similar treatment if they openly advocated for the Un-
ion. See Dayton Hudson Corp., 316 NLRB 477, 477, 483 (1995).
lier, posted a picture of Boehnke on the antiunion Face-
book page that was altered significantly to reflect
McCarthy’s hostility toward Boehnke and the Union, and
McCarthy’s excrement theme. On the antiunion Face-
book page, Supervisor Eddie Guerrero commented on the
altered Boehnke picture by posting, “Bahahaha [sic] omg
[sic] this is great [sic] can we please post these every-
where [sic].” Similarly, Supervisor Mellissa Erikson
posted, “Bahahahahah! [sic] I love this, [sic] you [sic]
should put these up everywhere [sic].” We find Sears,
Roebuck & Co., 305 NLRB 193 (1991), which is cited by
the judge to excuse these statements as “disparagement
alone” of union officials, to be inapposite. Although
Boehnke was one of the leaders of the union effort, he
was nevertheless an employee, subject to the authority of
the Respondent’s supervisors and managers.28 The su-
pervisors’ encouragement of employees to disseminate
widely this degrading picture of an employee leader of
the Union would reasonably intimidate both Boehnke
and other employees who would not want to be subject to
the same kind of humiliation and ridicule, thereby dis-
suading them from supporting the Union. Dayton Hud-
son Corp., 316 NLRB 477, 477–478, 482–483 (1995).
On this limited issue, we reverse the judge and find these
postings encouraging employees to harass Boehnke vio-
lated Section 8(a)(1).
AMENDED CONCLUSIONS OF LAW
The Respondent, MikLin Enterprises, Inc. d/b/a Jimmy
John’s, has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act as follows:
1. By Area Manager Jason Effertz and other agents
removing union literature from in-store bulletin boards
on which other material was generally posted without
restriction at its Riverside store, the Respondent violated
Section 8(a)(1).
2. By Assistant Manager Rene Nichols posting an em-
ployee’s telephone number on Facebook and soliciting
other employees, supervisors, and managers to call or
text the employee about his protected activities, the Re-
spondent violated Section 8(a)(1).
3. By Supervisors Eddie Guerrero and Melissa Erick-
son encouraging employees to disparage an employee
union supporter on Facebook, the Respondent violated
Section 8(a)(1).
4. By co-owner Rob Mulligan soliciting and encourag-
ing employees to remove union posters from property not
belonging to the Respondent, the Respondent violated
Section 8(a)(1).
28 In contrast to the judge, we do not find that Boehnke’s union ac-
tivities make him a de facto union official.

JIMMY JOHN’S 291
5. By terminating the employment of Max Specktor,
David Boehnke, Davis Ritsema, Mike Wilklow, Erik
Forman, and Micah Buckley-Farlee on March 22, 2011,
the Respondent violated Section 8(a)(3) and (1).
6. By issuing final written warnings to Isaiah (Ayo)
Collins, Brittany Koppy, and Sean Eddins on March 22,
2011, the Respondent violated Section 8(a)(3) and (1).
ORDER
The National Labor Relations Board orders that the
Respondent, MikLin Enterprises, Inc. d/b/a Jimmy
John’s, Minneapolis, Minnesota, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Removing protected postings from bulletin boards
or other areas on the Respondent’s property on which
other postings are generally allowed without restriction.
(b) Soliciting employees, supervisors, or managers to
contact employees who support the Industrial Workers of
the World, or any other union, about the prounion em-
ployees’ protected activities.
(c) Soliciting employees, supervisors, or managers to
disseminate disparaging pictures of prounion employees.
(d) Soliciting or encouraging the removal of protected
postings from property not belonging to the Respondent.
(e) Discharging, disciplining, or otherwise discriminat-
ing against employees because they support the Industri-
al Workers of the World, or any other union.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order,
offer Max Specktor, David Boehnke, Davis Ritsema,
Mike Wilklow, Erik Forman, and Micah Buckley-Farlee
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
(b) Make Max Specktor, David Boehnke, Davis
Ritsema, Mike Wilklow, Erik Forman, and Micah Buck-
ley-Farlee whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the
decision.
(c) Compensate Max Specktor, David Boehnke, Davis
Ritsema, Mike Wilklow, Erik Forman, and Micah Buck-
ley-Farlee for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and file a report
with the Social Security Administration allocating the
backpay award to the appropriate calendar quarters.
(d) Rescind the unlawful written warnings issued to
Isaiah (Ayo) Collins, Brittany Koppy, and Sean Eddins.
(e) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful dis-
charges and written warnings, and within 3 days thereaf-
ter notify the employees in writing that this has been
done and that the discharges and written warnings will
not be used against them in any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its stores in the Minneapolis, Minnesota area copies of
the attached notice marked “Appendix B.”29 Copies of
the notice, on forms provided by the Regional Director
for Region 18, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. In addition to physical
posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since February 10, 2011.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER JOHNSON, dissenting in part.
29 We shall substitute a new notice to conform with Durham School
Services, 360 NLRB 694 (2014). If this Order is enforced by a judg-
ment of a United States court of appeals, the words in the notice read-
ing “Posted by Order of the National Labor Relations Board” shall read
“Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board.”

292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act does not confer on employees an
unlimited right to disparage the quality of their employ-
er’s products with an intent to cause harm to their em-
ployer’s reputation, or reduce its income, or with reckless
disregard for such consequences of their actions, even if
their efforts can be linked to a legitimate labor dispute.
The doctrine that disloyalty in the context of a labor dis-
pute can remove the Act’s protection remains valid. Nei-
ther the Board, nor any court, has held otherwise. Here,
the Union’s “contaminated sandwich” poster campaign
purposefully disparaged MikLin Enterprises’ signature
product in a manner that was out of all proportion to the
alleged sick leave dispute involved. The posters were
clearly designed to attack the reputation and income of
both MikLin and its national franchisor Jimmy John’s in
the eyes of the public; or, at the very least, the posters
demonstrated a reckless disregard for such inevitable,
detrimental consequences.1 Based on well-established
precedent, discussed below, MikLin was entitled to dis-
cipline employees for their involvement in this unpro-
tected part of the Union’s “shock and awe” publicity
campaign and to encourage others, including employees,
to remove the offending posters from public places.
Therefore, I respectfully dissent from my colleagues’
contrary findings and I would dismiss the complaint alle-
gations based on this activity.2
1 A copy of the Union’s poster was admitted as GC Exh. 45. It is re-
produced as App. A to this opinion, with Rob Mulligan’s phone num-
ber redacted. In this opinion, I describe and refer to the poster as the
“contaminated sandwich” poster. My colleagues label my description
“gratuitous.” I shall leave it to the viewers of the poster to determine
whether my description is justified.
2 The General Counsel has argued in the alternative that, even if the
posters were unprotected, the Respondent violated Sec. 8(a)(3) by
discriminatorily terminating six union leaders for their participation in
the contaminated-sandwich sick leave campaign because their treat-
ment was harsher than the discipline warnings given to three union
“foot soldiers.” I would remand this issue to the judge for a full mixed-
motive analysis pursuant to Wright Line, 251 NLRB 1083, 1087–1088
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
Regarding the allegedly unlawful statements on the antiunion Face-
book account, I find most of them to be noncoercive expressions of
opinions about the Union’s campaign against MikLin, which are pro-
tected by Sec. 8(c) of the Act. I agree with my colleagues, however,
that the statements made by employer representatives that encouraged
employees to mock and ridicule union leader Boehnke were unlawful,
because they had a reasonable tendency to coerce and restrain employ-
ees from participating in protected activity. However, in agreement
with Chairman Pearce, I affirm the judge’s finding that Rob Mulligan
calling Boehnke a “unibrowner” was not unlawful. Unlike the state-
ments we find unlawful, Mulligan’s “unibrowner” remark amounted to
name calling that contained no threats, suggestions of futility, or calls-
to-action to harass Boehnke. Although distasteful, the name-calling is
the kind of “vituperative speech” the Act tolerates in the heat of labor
relations. Trailmobile Trailer, LLC, 343 NLRB 95 (2004).
The Board’s disloyalty doctrine is still governed by the
Supreme Court’s seminal decision in Electrical Workers
Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), in
which the Court determined that employees discharged
for “detrimental disloyalty” to their employer were law-
fully discharged for cause within the meaning of Section
10(c) of the Act. In Jefferson Standard, television sta-
tion technicians sponsored or distributed handbills that
made “a sharp, public, disparaging attack upon the quali-
ty of the company’s product and its business practices” at
a critical time in the initiation of the station’s services,
“in a manner reasonably calculated to harm the station’s
reputation and reduce its income.” Id. at 471. The Court
affirmed the Board’s findings that the handbills made no
reference to a labor dispute or appeal for public support
in a pending dispute. However, as the Board noted in a
decision issued 3 years after Jefferson Standard, the
“Court concluded that even if the attack were not treated
as ‘separable’ from the labor controversy, but instead
were to be treated as a concerted activity of the kind in-
tended to be embraced in Section 7, the means which
were used by the responsible technicians (i. e., the public
disparagement of the quality of the employer’s product),
‘deprived the attackers of the protection of that section,
when read in the light and context of the purpose of the
Act.’”3 In sum, the fact that employees’ public dispar-
agement of an employer’s product or attack on its reputa-
tion is linked to a labor dispute does not totally immunize
the employees’ conduct from discipline for disloyalty.
In MasTec Advanced Technologies, 357 NLRB 103,
107–108 (2011), the Board reaffirmed the standard, de-
veloped in cases decided since Jefferson Standard, that
employee communications to the public in an effort to
obtain support in their labor dispute are protected where
the communication is overtly related to a labor dispute
and “the communication is not so disloyal, reckless, or
maliciously untrue as to lose the Act’s protections.” (cit-
ing Mountain Shadows Golf Resort, 330 NLRB 1238,
1240 (2000)).4 As indicated, the Board will first deter-
In all other respects, I agree with my colleagues.
3 Patterson-Sargent Co., 115 NLRB 1627, 1630 (1956), quoting
from Jefferson Standard, 346 U.S. at 377–378. Relying on this aspect
of the Court’s rationale, the Board in Patterson-Sargent found that
striking employees lost statutory protection by distributing handbills to
the public expressly referring to the strike and disparaging the quality
of paint manufactured by the employer in their absence. Accord: Dia-
mond Walnut Growers v. NLRB, 113 F.3d 1259, 1267 fn. 8 (D.C. Cir.
1997)(interpreting Court’s statement in Jefferson Standard as recogniz-
ing product disparagement campaign could be construed as separable
unprotected attack on employer “whether or not it references the labor
dispute”).
4 In MasTec, a group of technicians, who installed satellite television
connections in customers’ homes, spoke on camera to the local news
media about their employer’s newly imposed pay system that arguably

JIMMY JOHN’S 293
mine whether the communication reveals to the public
that it is related to a labor dispute between the employer
and the employees. If so, the Board will still address
whether the employees used any prohibited means evinc-
ing disloyalty, recklessness, or malicious untruth to fur-
ther their otherwise protected cause.
I agree with my colleagues that the Union’s campaign,
and the posters in particular, contained sufficient infor-
mation for the public to surmise that the posters were
part of an ongoing labor dispute. The posters referred to
the employees’ desire for paid sick time, they suggested
union involvement,5 and they directly appealed for the
public’s support. Therefore, the contaminated-sandwich
posters met the threshold test of communicating to the
public a sufficient link to a legitimate ongoing labor dis-
pute.
I disagree with my colleagues in their contention that
“none of the statements in these communications were
made with knowledge of their falsity or with reckless
disregard for their falsity.” The employees’ statement
“SHOOT, WE CAN’T EVEN CALL IN SICK,” made
prominently on the disparaging posters, was empirically
false. (All caps in the original.) Employees could call in
sick at any point. The only condition imposed was that
an employee calling in sick was required to find a re-
placement for his or her shift. The publishers of the
posters, being employees well-versed in MikLin’s rule in
this regard, knew that this statement was false and pub-
lished it anyway.6
encouraged them to mislead customers in order to receive premium pay
and avoid being docked pay. They were terminated for participating in
the on-air criticism. Applying the two-step analysis, the Board found
that the technicians did not lose the Act’s protection. It is clear that all
panel members regarded extant law as addressing the second-step anal-
ysis of proscribed means in the disjunctive, mandating loss of statutory
protection in the event employee product disparagement involved any
one of the three proscribed means of pressuring an employer in a labor
dispute. Concurring Member Becker effectively conceded this in con-
tending that extant law and the interpretation of Jefferson Broadcasting
be modified and narrowed to hold that employee speech “expressly and
intimately linked” to a labor dispute should be found protected unless
statements were untrue and made with actual malice. 357 NLRB 103,
115–116.
5 I note that the posters referred the public to a jimmyjohnsworkers
website. The actual name of the union involved here is the Industrial
Workers of the World.
6 That MikLin’s work rule as written did not “simply” allow one to
call in sick, which the majority notes, is irrelevant to this analysis. The
obvious meaning of the rule is that employees could call in sick if they
did something in addition to “simply” calling in sick. More important-
ly, the rule, as it was administered during the daily work of the MikLin
stores—and, as the employees and the Union fully knew—was not a
prohibition against calling in sick at all, as opposed to calling in sick
without a replacement. In this regard, I note as well the following
statement in the March 16, 2011 attendance policy communicated to
all employees: “*Absence due to sickness—With regard to absentee-
However, even were I to agree, as my colleagues ap-
parently do, that this one completely and knowingly false
statement was permissible, rather than establishing by
itself malicious or reckless disregard for the truth, I still
find the poster and its distribution unprotected for anoth-
er more fundamental reason. I find that the statements in
the poster, considered in their totality, were maliciously
motivated with the primary intent to injure MikLin’s
business reputation and income, rather than to redress the
employees’ sick leave grievance. The employees in-
volved with the Union in this poster campaign thereby
clearly resorted to a means of protest so disloyal as to
lose the Act’s protection.
In product disparagement cases, the Board takes care
to distinguish between disparagement constituting unpro-
tected disloyalty and the airing of what may be highly
sensitive issues, such as safety matters, so as not to pre-
clude employees from protesting safety matters through
appeals for public assistance. Allied Aviation Services
Co. of New Jersey, Inc., 248 NLRB 229, 231 (1980). To
this end, public criticism of an employer in the context of
a labor dispute must evidence “a malicious motive” to be
found unprotected disloyalty. Nevertheless, 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
ism due to flu-like symptoms, Team Members are not allowed to work
unless and until those symptoms have subsided for 24 hours.”
The majority references the published results of a telephone survey
created and conducted by the Union shortly before its sandwich poster
campaign as evidence that the information in the poster and press re-
lease was not maliciously false because employees had the impression
they were compelled to work when they were sick. The judge did not
mention this survey, for good reason. The survey contained questions
about how often employees were sick, how often they worked while
they were sick, and why they did work when sick. The survey did not
distinguish between illnesses such as flu that could be foodborne and
any other type of illness, from headache to cancer. Further, there were
only 34 respondents from a work force of 200 in 10 stores. Twenty-
seven of those respondents stated they were “sick”—again, we do not
know from what—six times or fewer annually. Twenty-eight respond-
ents said they worked while ill 75 to 100 percent of the time. Lacking
any statistical cross-reference between respondents to the first question
and respondents to the second question, the claim that employees work
while ill 4 days a year is purely conjectural even as to the sample
group, and certainly not valid for the entire multistore MikLin work
force. Finally, 26 respondents reported that they worked when sick,
either because they could not afford the loss of pay, could not find a
replacement, or both. If my colleagues and the Union are looking for
some objective justification of the absolute claim that employees can-
not call in sick, as opposed to why a small sampling of them chose not
to do so, then I believe they need to look elsewhere. Even less persua-
sive is the majority’s passing reference to vague anecdotal testimony,
also not mentioned or credited by the judge, that one or two employees
who participated in the Sick Day campaign were personally directed to
work while sick by supervisors and managers when no one else was
available to cover their shifts.

294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have, and manifested by public disparagement of the
employer’s product or undermining of its reputation.”
Five Star Transportation, Inc., 349 NLRB 42, 44–47
(2007), enfd. 522 F.3d 46 (1st Cir. 2008), citing Veeder-
Root Co., 237 NLRB 1175, 1177 (1978). In other words,
a disloyal malicious intent may be inferred from the cir-
cumstances of a particular protest. That is the situation
presented here.
It must be borne in mind that, as stated by the court in
Diamond Walnut Growers, supra, “when a union claims
that a food product produced by a struck company is ac-
tually tainted it can be thought to be using the strike
equivalent of a nuclear bomb; the unpleasant effects will
long survive the battle . . . . The company’s ability to
sell the product, even if the strike is subsequently settled,
could well be destroyed.” 113 F.3d at 1266. In this
case, unlike in Diamond Walnut, there was no strike, and
the labor dispute involved a single issue of paid sick
leave. Yet, the employees displayed posters alleging
serious public health safety dangers in the preparation of
Jimmy John’s sandwiches, MikLin’s signature product
and most likely its primary source of revenue. In this
context, the Union and employees supporters’ use of the
tainted food product “nuclear bomb” was so incommen-
surate with the sick leave grievance as to show that the
purpose was to harm the employer in a manner unrelated
to the labor dispute.
The malicious motivation for disloyal disparagement
becomes even more obvious when considering several
additional factors. First, as noted, supra, a central claim
of the posters was the false claim that it was impossible
for employees to call in sick. Second, the posters greatly
exaggerated the potential public health problem. Third,
in reference to this exaggeration, the posters failed to
show any remotely reasonable correlation between the
alleged health problem and the employer’s lack of paid
sick leave.
As to the foregoing two issues, the administrative law
judge himself trenchantly noted:

One could argue that two cases of foodborne dis-
ease in 10 years when Respondent has made 6 mil-
lion sandwiches renders any correlation between Re-
spondent’s sick leave policy and foodborne illness to
be so improbable that the Union’s posters should be
unprotected. Moreover, there has been no direct cor-
relation established between these incidents and the
absence of sick leave. Given Respondent’s record
over a 10-year period, one could regard the risk of
becoming ill by eating at one of Respondent’s shops
to be infinitesimal.

See judge’s decision, infra, at 307 (notes omitted; emphasis
added).
Yet, the judge did not arrive at the logically inescapa-
ble conclusion from these incisive observations. A dev-
astating direct attack on an employer’s product quality
that would fail even the most basic notions of statistical
proof or empirical analysis does not suddenly become
protected conduct simply because it is made in the con-
text of a labor dispute. Instead, portraying an “infinites-
imal risk” as a clear and present danger to public health
strongly signals that the motivation for the attack is mal-
ice and that the disparagement is unprotected under the
Act.
Here, the majority’s approach gets the relationship be-
tween empirical facts and disloyalty precisely backwards.
The majority initially argues that such evidence of truth
or untruth of employee allegations is immaterial to a
finding of employee disloyalty. But that disavows hu-
man experience. An employee who is willing to make
up allegations out of whole cloth against his or her em-
ployer is obviously far more disloyal, in any meaningful
sense of that word, than one who acts upon a reasonable
but mistaken belief. Thus, the empirical facts, as related
to the actual employer at issue, are extremely important
to the disloyalty prong of the Jefferson Broadcasting test.
Perhaps understanding that factual accuracy is inextri-
cably tied in with loyalty/disloyalty, the majority then
argues that the thrust of the employees’ claims is sup-
portable generally. In other words, if some generalized
experience (and the guidance of the Centers for Disease
Control (CDC)) shows that sick workers can contaminate
food, then that is enough to find that the employees were
basically loyal, or at least not disloyal enough to lose the
protection of the Act. But there are several major prob-
lems with this approach.
First, the fact that, in general, foodborne illness is of-
ten transferred by the habits of food handlers is beside
the point. There is no record evidence that MikLin’s at-
tendance policy caused any customer to become ill—
ever. The majority should not allow the experience of
other employers to serve as an effective justification for
an evidence-free allegation against this employer. Se-
cond, the majority’s allowance of post hoc justifications
based on facts unconnected with the employer at issue
creates, in effect, a “safe harbor” for disparaging an em-
ployer’s products or services, no matter how far afield
from the reality of the employer at issue, as long as the
employees at some point afterwards come up with some
tenuous connection to the employer or its general indus-
JIMMY JOHN’S 295
try.7 Third, divorcing an employer-specific evaluation
of factual accuracy from the overall loyalty/disloyalty
analysis simply puts the Board in a place where it should
not be: evaluating the merits of the employees’ demands
overall. At best, this leads inexorably to making policy
judgments based on appeals to authority (i.e., the Centers
for Disease Control studies) or some subjective vision of
general industry practices. At worst, it leads to the Board
simply substituting its preferences on the merits of an
employer’s sick policies for the employer’s, in violation
of the Act.8
In defense of their contrary position, my colleagues as-
sert that the posters and the press release “did not state or
even imply that the health risk was ‘serious,’” and that
the posters did not allege that any sandwiches were actu-
ally contaminated or that any customers had become ill
from eating sandwiches made at the Respondent’s shops.
They further assert that the poster did not use inflamma-
tory language. Their arguments demonstrate that they do
not see the forest for the trees. The first sentences of the
March 10 press release state, “Sick of working sick, to-
day Jimmy John’s Workers Union blows the whistle on
unhealthy working conditions and demands a change in
sick day policy. 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 thrust of the message is that the lack of paid
sick time actually puts customers at risk for the flu,
which is a serious illness. The poster presents images of
two sandwiches that occupy half of the page, one of
which, the poster asserts, was made by an ill worker. The
poster also states, “WE HOPE YOUR IMMUNE
SYSTEM IS READY BECAUSE YOU’RE ABOUT TO
7 Contrary to my colleagues’ assertion, I do not ignore that State
health department investigations, occurring in 2006 and 2007 (4 and 5
years before the incidents at issue in this case), determined that food
then prepared by the Respondent’s workers was likely responsible for
gastroenteritis. But these facts do not diminish the completely specula-
tive nature of the employees’ sandwich campaign for several reasons.
To begin with, incidents that happened that long ago—with millions of
sandwiches made in the interim with no problems—do not support an
allegation of ongoing, current sandwich contamination, especially
when, as the judge related, the most recent health department investiga-
tion “noted overall compliance with food code requirements and no
critical violations.” Moreover, neither investigation implicated the sick
leave policy in any way. Finally, and most tellingly, there is no record
evidence that the employees created the sandwich campaign actually
knowing of and relying upon the 4-5-year-old investigations. See,
judge’s decision, infra, at fn. 11.
8 Here, there are two problems. The Board would impermissibly
translate the employer’s views concerning the perceived disloyalty into
an unfair labor practice in violation of Sec. 8(c). Moreover, it would
also undermine the policies behind Sec. 8(d), insofar as the Board
would be putting a thumb on the scale in favor of the employees’ pro-
posal, which it could not do even if they had a bonafide 9(a) or 8(f)
bargaining representative.
TAKE THE SANDWICH TEST.” (All caps in the origi-
nal.) My colleagues’ characterization that the posters
“only suggest the potential for illness” from workers who
come to work sick is a convenient whitewashing of the
facts. The poster does not “suggest” that the second
sandwich potentially could have been made by an ill
worker—it states that it was made by an ill worker. The
poster does not “suggest” that the sandwich potentially
could pose a risk, it states that the customer’s immune
system is about to be challenged. Finally, the demand
letter that the Union presented to the Respondent’s own-
ers, the Mulligans, on March 10, which was attached to
the press release along with a copy of the poster, asserts
anecdotally that employees actually work while they are
sick and that they put customers at risk by doing so. It
further states that, “Jimmy John’s is a restaurant that
thrives on a ‘clean’ image, offering fresher foods, and a
sparkling atmosphere. By working sick, we are jeopard-
izing the entirety of that image and risking public safe-
ty.” The message of the Union’s publicity campaign is
purposeful and abundantly clear: MikLin’s attendance
policy puts customers at risk, and, if it is not changed,
customers are getting sick and will continue to get sick.
The Union’s tactic of making the demand for a change in
the attendance policy at the same time it issued the press
release attaching the letter and the poster reflects its
campaign strategy to inflict harm based on a wholly ex-
aggerated, if not entirely concocted revelation of a public
health risk specific to MikLin, without regard to how the
Mulligans responded to its demands. In contrast to my
colleagues, I find this language unreasonably inflamma-
tory, and the message beyond the Act’s protection.
Fourth and finally, the posters intentionally enmeshed
the franchisor in the dispute, inaccurately implying that it
was the franchisor that was responsible for the issues.
The posters identified franchisor Jimmy John’s, with a
nationwide network of over 1400 stores, rather than the
employer MikLin, a local franchise operator of 10 stores,
as the target.9 Despite having revealed in the March 10
press release that they knew that the Mulligans’ opera-
tion was a small franchise, the Union had employees
plaster the contaminated-sandwich posters around the
Twin Cities 10 days’ later, knowingly confusing the sub-
ject of the posters. Thus, the posters maximized the
threat of substantial and lasting detriment to MikLin’s
9 Although the Respondent’s “Rules of Employment,” which refers
to the attendance policy, is printed with a Jimmy John’s’ logo, there is
no showing that Jimmy John’s’ many franchisees had a standard sick
leave policy in common with MikLin. The March 10 press release
refers to a 10-store franchise and mentions the Mulligans, but it also
repeatedly refers to the employer as Jimmy John’s and never identifies
MikLin Enterprises.

296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reputation and income. The Union would reasonably
have understood that the damaging message in the post-
ers could cause tension or even threaten MikLin’s fran-
chise relationship with Jimmy John’s.
The facts of this case closely parallel those in Coca
Cola Bottling Works, Inc., 186 NLRB 1050 (1970), cited
by the Respondent, in which the Board determined that
preparation and distribution of a leaflet entitled “Health
Warning” by striking employees was unprotected, be-
cause it consisted of public disparagement of the em-
ployer’s product. The leaflet advised the public to be-
ware “that empty Coca Cola bottles often serve as collec-
tors of foreign matter” that replacement employees might
overlook. Id. at 1054. The Board agreed with the
judge’s finding that “the main thrust of the leaflet was to
create fear in the public’s mind that drinking Coca Cola
would be harmful to the health of the purchaser because
of the presence of foreign objects such as roaches and
mice in the bottles.” Id. Likewise, the main thrust of the
contaminated-sandwich posters is to shock the public and
create a generalized fear that consuming MikLin’s sand-
wiches will cause illness. Although the leaflets in each
case were not technically untrue in all respects, they
showed a reckless disregard for the effects of their mes-
sage. In both cases, the communications display a lack
of a good-faith concern for public safety, despite their
purported warnings. In neither case does Board law
permit the employees to hide behind their labor dispute
to justify such detrimental disloyalty to their employers
when resorting to reckless disparagement of the employ-
ers’ products.
My colleagues adopt the judge’s pronouncement that
Coca Cola has been effectively overruled by Allied Avia-
tion, supra. I disagree. I find nothing inconsistent be-
tween the holdings of these two cases, and I find the
holding in Coca Cola to be consistent with the case law
as it has been applied both before and after Allied Avia-
tion. In that case, a shop steward, acting on behalf of
airplane mechanics, complained in two letters to custom-
ers (airport and airline representatives) about the em-
ployer’s work rules that allegedly posed potential safety
hazards to the employees and the public. Id. at 229–230.
The Board found the complaints to customers bore a suf-
ficient relationship to a labor dispute. Id. at 231. Then,
in determining whether the shop steward’s complaints
went beyond the Act’s protection, the Board considered
that, although the employer would no doubt prefer to
keep safety issues out of the public eye, nothing in the
letters rose to the level of public disparagement neces-
sary to deprive otherwise protected activities of the Act’s
protection. Id. In so doing, the Board implicitly rejected
the judge’s finding that the safety concerns were not
made in good faith. Although the Board took great care
to distinguish between disparagement and the airing of
what were surely sensitive issues, it certainly did not
conclude that any and all appeals to the public that pur-
port to raise safety issues are always protected. Id. To
the contrary, the Board continues to carefully distinguish
between unprotected disparagement and good-faith ef-
forts to protest safety matters and other sensitive issues
through requests for assistance from third parties. Id.
The Board’s holding in Five Star Transportation, Inc.,
349 NLRB 42, 44–47 (2007), enfd. 522 F.3d 46 (1st Cir.
2008), illustrates the careful application of the longstand-
ing test for assessing product disparagement in the con-
text of a labor dispute. In Five Star, employees of a pre-
decessor bus company sent letters to the school district
during the bidding process for a school bus service con-
tract. The letters were critical of Five Star and urged the
school district to either select the predecessor company
for the contract or require any new company to honor
current terms and conditions of employment. After be-
ing awarded the contract, Five Star’s owner refused to
hire any applicants who had sent letters to the school
district. The Board considered the content of each letter
and determined that some letters were protected, but that
others were unprotected because they “criticize[d] and
disparage[d] the business reputation of the Respondent in
ways that go beyond complaints about terms and condi-
tions of employment.” Id. at 45. The employees who lost
the Act’s protection referred in their letters to stories
from 7-year-old newspaper articles using inflammatory
and exaggerated language that disparaged Five Star’s
reputation by asserting it hired child molesters and alco-
holics, and that it had a shoddy safety record. These
claims were wholly disproportionate to the issues in their
labor dispute. As was the case in Coca Cola, supra, the
fact that, at its core, the employees’ statements in Five
Star were not shown to be untrue did not save the com-
munications from their loss of protection. The flagrantly
disloyal attitude employees demonstrated in attacking the
employer’s reputation with a predictable harmful out-
come, caused the otherwise protected conduct to lose the
Act’s protection.
The Ninth Circuit has stated that “the disloyalty stand-
ard is at base a question of whether the employees’ ef-
forts to improve their wages or working conditions
through influencing strangers to the labor dispute were
pursued in a reasonable manner under the circumstanc-
es.” Sierra Publishing Co., 889 F.2d 210, 220 (9th Cir.
1989). Contrary to the judge’s analysis, the court’s rea-
soning fits squarely within the consistent line of Board
precedent holding that there is a point when product dis-
paragement in connection with a labor dispute is so pur-
JIMMY JOHN’S 297
sued in a reasonable manner under the circumstances.”
Sierra Publishing Co., 889 F.2d 210, 220 (9th Cir. 1989).
Contrary to the judge’s analysis, the court’s reasoning
fits squarely within the consistent line of Board prece-
dent holding that there is a point when product dispar-
agement in connection with a labor dispute is so disloyal
as to warrant removal of statutory protection. Adherence
to this precedent is mandated by Section 10(c),
as interpreted by the Supreme Court in Jefferson Stand-
ard, supra. It is consistent with the Board’s overarching
policy to maintain labor relations stability. It is con-
sistent as well with the indisputable right of employers to
maintain discipline and production in their workplace.
When, as here, employees publicly disparage their em-
ployer’s product in a manner that is not reasonably relat-
ed to their labor dispute and manifests a primary mali-
cious purpose to inflict maximum harm on their employ-
er’s business, the employer is entitled to discipline them
for disloyalty. That is what Respondent MikLin legiti-
mately did.
In sum, I would find that MikLin did not violate the
Act by disciplining employees because of their participa-
tion in this unprotected disparagement, by removing the
posters, or by encouraging employees to remove the
posters. I respectfully dissent from my colleagues’ fail-
ure to dismiss the complaint allegations relevant to these
actions.

298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Appendix A

JIMMY JOHN’S 299

APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT remove protected postings from bulletin
boards or other areas on our property on which other postings
are generally allowed without restriction.
WE WILL NOT solicit employees, supervisors, or man-
agers to contact you about your activities in support of
the Industrial Workers of the World, or any other union.
WE WILL NOT solicit employees, supervisors, or man-
agers to disseminate degrading pictures of you because
you support the Industrial Workers of the World, or any
other union.
WE WILL NOT solicit or encourage the removal of pro-
tected postings or literature from property not belonging
to us.
WE WILL NOT discharge, discipline, or otherwise dis-
criminate against any of you, because you support the
Industrial Workers of the World, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Max Specktor, David Boehnke, Davis
Ritsema, Mike Wilklow, Erik Forman, and Micah Buck-
ley-Farlee full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
WE WILL make Max Specktor, David Boehnke, Davis
Ritsema, Mike Wilklow, Erik Forman, and Micah Buck-
ley-Farlee whole for any loss of earnings and other bene-
fits resulting from their discharge, less any net interim
earnings, plus interest compounded daily.
WE WILL compensate Max Specktor, David Boehnke,
Davis Ritsema, Mike Wilklow, Erik Forman, and Micah
Buckley-Farlee for the adverse tax consequences, if any,
of receiving a lump-sum backpay award, and WE WILL
file a report with the Social Security Administration allo-
cating the backpay awards to the appropriate calendar
quarters.
WE WILL rescind the written warnings given to Isaiah
(Ayo) Collins, Brittany Koppy, and Sean Eddins.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Max Specktor, David Boehnke, Davis
Ritsema, Mike Wilklow, Erik Forman, and Micah Buck-
ley-Farlee and the written warnings issued to Isaiah
(Ayo) Collins, Brittany Koppy and Sean Eddins.
WE WILL, within 3 days thereafter, notify each of them
in writing that this has been done and that the discharges
or written warnings will not be used against them in any
way.
MIKLIN ENTERPRISES, INC. D/B/A JIMMY JOHN’S

The Board’s decision can be found at
www.nlrb.gov/case/18–CA–019707 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.

Florence I. Brammer, Esq., for the General Counsel.
Michael A. Landrum and Mary G. Dobbins, Esqs. (Landrum
Dobbins, LLC), of Edina, Minnesota, for the Respondent.
Timothy J. Louris, Esq. (Miller, O’Brien Cummins, PLLP), of
Minneapolis, Minnesota, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Minneapolis, Minnesota, on February 14–15, 2012.
The Industrial Workers of the World filed charges on March 7,
24, and April 22, 2011. The General Counsel issued a consoli-
dated complaint and notice of hearing on November 9, 2011.
In this complaint, the General Counsel alleges Respondent
violated Section 8(a)(3) and (1) of the National Labor Relations
Act (the Act) by terminating the employment of Erik Forman,
Mike Wilklow, Davis Ritsema, David Boehnke, Max Specktor,
and Micah Buckley-Farlee on March 22, 2011, and issuing
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
written warnings the same day to Isaiah (Ayo) Collins, Sean
Eddins, and Brittany Koppy. Respondent contends that it ter-
minated and/or disciplined these employees for conduct that is
not protected by the Act. At least part of the conduct in ques-
tion was posting flyers near Respondent’s restaurants suggest-
ing that customers might get sick by eating one of Respond-
ent’s sandwiches due to Respondent’s lack of paid sick leave.
The General Counsel also alleges that Respondent violated
Section 8(a)(1) of the Act through its agents who posted anti-
union messages on a Facebook page that could be accessed by
the public, or at least anyone with a Facebook account. Some
of these postings disparaged prounion employee David
Boehnke. Another, by co-owner Rob Mulligan, encouraged
employees and managers to take down the Union’s “sick day”
flyers which were posted outside of Respondent’s restaurants.
Another allegation in the complaint states that one of Respond-
ent’s managers removed union literature from a public bulletin
board inside one of the restaurants. Finally, the General Coun-
sel alleges that Respondent’s owner illegally interrogated an
employee about the union sympathies of another employee.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Charging Party
Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, MikLin Enterprises, a corporation, operates 10
Jimmy John’s sandwich shops in the Minneapolis-St. Paul area
as a franchisee, where it annually derives gross revenues in
excess of $500,000 and purchases and receives goods at these
facilities valued in excess of $50,000 from outside the State of
Minnesota. Respondent admits, and I find, that it is an employ-
er engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union, the International
Workers of the World (IWW), is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent owns and operates 10 Jimmy John’s sandwich
shops in the Minneapolis-St. Paul area. There are 40–50 other
Jimmy John’s establishments in this area owned and operated
by others and approximately 1400 Jimmy John’s shops nation-
wide. The Union, the International Workers of the World,
began to organize MikLin’s shops as early as 2007. The cam-
paign went public in September 2010. On October 22, 2010, a
repre-sentation election was conducted in a unit covering all 10
MikLin stores. Eighty-five votes were cast in favor of repre-
sentation by the IWW; 87 were cast against representation. The
Union filed objections to the conduct of the election. The ob-
jections case was settled on January 10, 2011. The essence of
1 Respondent appears to argue at p. 35 of its brief, that its exhibit, R.
Br. 13, should have been received. When I pointed out to Respondent’s
counsel that the exhibit, a transcript of a telephone conversation be-
tween Rob Mulligan and Davis Ritsema had not been properly authen-
ticated (e.g., who transcribed the conversation and by what means)
counsel withdrew the exhibit without making any attempt to properly
authenticate it, Tr. 333–335.
the settlement was that after 60 days but not later than after 18
months, the Union would be allowed to file a petition for a
rerun election and that if it did so Respondent would agree to
an election within 30 days. (GC Exh. 46.)
Respondent also settled an unfair labor practice case on Jan-
uary 11, 2011. The settlement agreement contained a clause
stating that Respondent did not admit to violating the Act as
alleged. However, it agreed to read a notice to its employees
stating that it would not engage in a number of practices that
violate the Act and it agreed to rescind a number of disciplinary
measures. (GC Exhs. 59 and 60.)
Respondent’s Attendance Policy as it Pertains to Illness
When Respondent hired new employees, at least as late as
December 2, 2010, it gave them a list of 27 rules for employ-
ment at Jimmy John’s. Rule 11 stated, “Find your own re-
placement 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!”
(GC Exh. 63.) Between March 10 and 20, 2011, Respondent
posted a letter at one or more of its stores, stating that “for
those who ‘don’t feel good’ we have a policy that expects them
to find a replacement for their shift . . . the record clearly shows
that we have demonstrated flexibility with regard to excusing
those who cannot find replacements,” (GC Exh. 16).
The October 2010 version of Respondent’s handbook in par-
agraph 16 similarly stated that “employee responsibility to
report to work on time or find a suitable replacement is an es-
sential part of employment. . . . Employees who cannot work
their scheduled shift must find a suitable replacement to work
the shift. Employees who fail to call when they are either going
to be late or are unable to work a shift will be subject to imme-
diate termination.” (GC Exh. 13, par. 16.) Respondent does not
provide paid leave for employees who miss work due to their
own illness. However, it provides paid leave for employees
whose children are sick if that parent has worked for MikLin
for a sufficient period of time.
On March 16, 2011, Respondent promulgated a new attend-
ance policy. However, the substance of this policy as it relates
to this case was identical to its existing policy. Under this poli-
cy employees are “expected to be at work on time or find a
suitable replacement for their scheduled shifts.” Respondent
also instituted a disciplinary point system for attendance issues.
An employee who does not report to work, but finds a replace-
ment is not assessed any points. An employee who called his
or her manager at least 1 hour before the shift without finding a
replacement is assessed one point. The employee is assessed
two points if they call in less than an hour before or after the
start of the shift and three points for a no-call/no-show. Within
any rolling 12-month period an employee receives a discipli-
nary coaching for one point; a recorded verbal warning for two
points; a written warning for three points; and is terminated for
accumulating four points.
The new policy was posted at least at two of Respondent’s
10 stores, Calhoun Square and Knollwood, prior to March 17,
2011. With regard to absences it provided:

Absence due to sickness: With regard to absenteeism due to
flu like symptoms, Team Members are not allowed to work

JIMMY JOHN’S 301
unless and until those symptoms have subsided for 24 hours.
Each day of sickness will count as a separate absence except
that an absence of two or more consecutive days for the same
illness will be counted as one “occurrence” when the Team
Member supplies the Company with a medical certification
that the Team Member has been seen by a doctor during the
illness.

(GC Exh. 18.)
The Posters
In late January or early February 2011, members of the Un-
ion put up posters on community bulletin boards in the public
area of several of Respondent’s stores. (GC Exh. 44.) These
posters were removed by Respondent’s managers each time
they encountered one.2 These posters featured two color pho-
tographs of a Jimmy John’s submarine sandwich side-by-side.
The sandwiches looked identical. Both had a little mayonnaise
on the top of the upper loaf of the sandwich. Above the sand-
wich to the left of the poster were the words “YOUR
SANDWICH MADE BY A HEALTHY JIMMY JOHN’S
WORKER.” The words above the sandwich to the right read,
“YOUR SANDWICH MADE BY A SICK JIMMY JOHN’S
WORKER.” The wording was in the color white on a black
background, except that the words HEALTHY and SICK were
in red.
Below the pictures of the two sandwiches was the following:

CAN’T TELL THE DIFFERENCE?
THAT’S TOO BAD BECAUSE JIMMY JOHN’S
WORKERS DON’T
GET PAID SICK DAYS. SHOOT, WE CAN’T EVEN
CALL IN SICK.
WE HOPE YOUR IMMUNE SYSTEM IS READY BECAUSE YOU’RE
ABOUT TO THE TAKE THE SANDWICH TEST . . .

HELP JIMMY JOHN’S WORKERS WIN SICK DAYS
SUPPORT US ONLINE AT www.jimmyjohnsworkers.org

The second and third lines below “Can’t tell the Difference”
were printed in red.
The March 10, 2011 Meeting
March 10, 2011, marked the end of the 60-day period in
which the Union could not file for a rerun election. On that
date, four of the alleged discriminatees, Erik Forman, Mike
Wilklow, Max Specktor, and Davis Ritsema went to the office
of Rob Mulligan, a co-owner of Respondent. The four had a
10–15-minute discussion with Rob Mulligan regarding Re-
spondent’s policies regarding employees who are ill on days
they were scheduled to work.
At this meeting, the four presented Rob Mulligan a letter
from the Union (GC Exh. 43), asking for paid sick days. The
letter indicated that the lack of paid sick days provided an eco-
2 Complaint par. 5(c) alleges that Respondent through its Area Man-
ager Jason Effertz removed union postings from its Riverside store.
The record establishes that Effertz admitted to removing postings other
than the sick day posters, but that agents of Respondent routinely took
down the sick day posters whenever they encountered them at any of
Respondent’s stores. (Tr. 167–170, 199, 285.)
nomic incentive for Respondent’s employees, who are paid the
minimum wage, to work when they were ill and thus posed a
risk to public safety. The letter also stated:

We would like to meet with you on or before Sunday March
20 at 2:00 p.m. (ten days from the date of this letter.) If you
refuse to meet with us, or cannot supply willingness to coop-
erate to meet with the needs of your employees, we will move
forward with our 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 com-
mon, citywide.

The Union also issued a press release on March 10 (GC Exh.
38), entitled, “Jimmy John’s Workers Blow the Whistle on
Unhealthy Working Conditions.” The press release asserted
that Respondent’s lack of sick leave put the health of employ-
ees and customers at risk. The release did not make any essen-
tial distinction between Respondent MikLin and Jimmy John’s
shops generally. At some points it focused on Jimmy John’s
generally and at others specifically on the MikLin franchise. It
also indicated that the lack of sick leave was an industrywide
problem. The press release stated, “The issue of working while
sick has became a staple concern for countless workers in the
service industry and beyond, accelerated by the turn to a fast
food employment model without benefits or job security.”
The press release also stated the Union’s intention to “plas-
ter” Minneapolis with thousands of sick day posters. A copy of
the poster (GC Exh. 44) was attached to the press release as
well as the Union’s “ten point plan.” This plan lists the Un-
ion’s objectives in organizing Jimmy John’s which included
wage increases and health insurance, as well as 1 paid sick day
per month of employment.
Sunday, March 20, 2011
On Sunday, March 20, 2011, the Union put up posters on
lampposts, trash cans, mailboxes, newspaper stands, and other
surfaces within two blocks of each of Respondent’s stores that
were identical to (GC Exh. 44), other than the last two lines
which stated:
CALL THE OWNER ROB MULLIGAN AT [TELEPHONE NUMBER] TO
LET HIM KNOW THAT YOU WANT HEALTHY WORKERS MAKING
YOUR SANDWICHES

Rob Mulligan’s name and telephone number were printed in
red.
On the evening of March 20, Rob Mulligan and other of Re-
spondent’s managers took down as many of the posters as they
could find.
Three of the employees who were subsequently fired on
March 22, Mike Wilklow, David Boehnke, and Max Specktor,
and the three who were given final written warnings participat-
ed in the postings of these placards. Erik Forman and Micah
Buckley-Farlee were not in the Twin Cities on March 20.
Davis Ritsema apparently did not help put up posters. How-
ever, he called Rob Mulligan several times between March 10
and 20. Thus, he knew that posters would be “plastered” all
over the Twin Cities on March 20, if Respondent did not meet
the Union’s demands regarding sick leave. Moreover, Ritsema

302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
knew of the content of the posters, having posted some which
were almost identical previously.
On March 22, Respondent terminated the employment of
Erik Forman, Mike Wilklow, Davis Ritsema, David Boehnke,
Max Specktor, and Micah Buckley-Farlee and issued written
warnings the same day to Isaiah (Ayo) Collins, Sean Eddins,
and Brittany Koppy for disloyalty to their employer and dispar-
agement of its product. More specific reasons that Respondent
gave for these disciplinary actions are as follows:

Specktor, Ritsema, Buckley-Farlee, Wilklow, and
Forman were terminated for being part of the group that
presented Rob Mulligan with the letter threatening to post
the sick day poster if Mulligan did not meet with the em-
ployees about Respondent’s sick leave policy and causing
the public posting of hundreds of these posters in neigh-
borhoods near Respondent’s stores.
David Boehnke was terminated for posting a “sick
day” poster at the Skyway store and texting Rob Mulligan
threatening to put up the “sick day” posters if Mulligan re-
fused to meet with union supporters, thus causing the pub-
lic posting of hundreds of the “sick day” posters near sev-
eral of Respondent’s stores.

Eddins, Collins, and Koppy were given a final written
warning for posting the sick day posters on March 20.

With regard to the “sick day” posters each of the disciplinary
notices contained language identical or similar to the following
language in the termination notice for Buckley-Farlee:

The widespread malicious distribution of these posters on
March 20 was clearly intended to harm the company and to
injure its business and reputation and that of the owners. Its
malicious intent is underscored by its failure to identify Mi-
kLin Enterprises and its calculated blanket indictment of all
other Jimmy John’s stores in the country, none of which has
any kind of dispute with the IWW. You clearly intended to
damage not only the Jimmy John’s brand image of all fran-
chisees, but that of the franchisor organization as well.

(GC Exh. 9.)3
3 The Union’s posting of the sick day flyers did not violate Sec.
8(b)(4)(B)(ii) of the Act, as Respondent contends, Edward J. DeBartolo
Corp. v. Florida Building & Trades Council, 485 U.S. 568 (1988).
That provision of the Act does not prohibit secondary handbilling in the
absence of picketing. Moreover, the fact that employees were required
to sign Jimmy John’s rules for employment is sufficient to dispose of
Respondent’s argument at p. 38 of its brief that Jimmy John’s is a neu-
tral employer in this matter, Teamsters Local 560, 248 NLRB 1212
(1980). Respondent at no time effectively conveyed to employees that
they were no longer subject to Jimmy John’s employment rules, assum-
ing this is the case. On the contrary, Respondent’s March 16, 2011
attendance policy states that its approach “is not intended to create
anything ‘new.’ (GC Exh. 18.) In fact that policy reiterates that the
employees are expected to be at work on time or find a suitable re-
placement.
In addition, MikLin’s October 2010 employee handbook (GC Exh.
13) states that its employees must dress in accordance with Jimmy
John’s uniform and personal grooming and dress code policy. It further
states that “our employees represent the Jimmy John’s image to every
customer they serve.”
The termination notices of Ritsema and Buckley-Farlee also
cited their role in the distribution of the March 10 IWW press
release (with the “sick day” poster) as grounds for their termi-
nation.4
Respondent’s CEO, Mike Mulligan, explained that Koppy,
Eddins, and Collins were disciplined, but not terminated be-
cause they were “foot soldiers” with regard to the posting of the
“sick day” flyers. The six employees who were terminated
“were the developers and leaders of this entire matter” (Tr.
288).
The day after the terminations and written warnings were is-
sued, the Union issued another press release. (GC Exh. 39.) In
that press release, Buckley-Farlee was quoted as follows:

It just isn’t safe—customers are getting their sandwiches
made by people with the flu, and they have no idea . . . rather
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. . . .

In a March 30 press release, Erik Forman was quoted as say-
ing:

Speaking out against the policy of forcing workers to work
while sick is not only our right, it is our duty. The unfettered
greed of franchise owner Mike Mulligan and Jimmy John
Liautaud himself jeopardizes the health of thousands of cus-
tomers and workers almost every day. We will speak out un-
til they realize that no one wants to eat a sandwich filled with
cold and flu germs.

(GC Exh. 41.)5
The State of Minnesota has statutes or regulations governing
exclusion of employees from workplaces in which they handle
food. (GC Exhs. 19, 20; R. Exh. 10.) They require an employ-
er to exclude an employee from a food establishment if the
employee is ill with vomiting or diarrhea. A food employee is
restricted from working with exposed food, clean equipment,
and clean utensils in a food establishment if the employee has
an enteric (intestinal) bacterial pathogen capable of being
transmitted by food, such as Salmonella spp, or Escherichia
coli.
There is apparently no requirement that an employee who
has any other type of illness, such as a cold, cough, runny nose,
or sore throat, be restricted from working with food. There is
also no evidence in this record that illnesses such as a cold,
cough, or sore throat can be transmitted through food. Re-
4 The General Counsel argues in its brief the terminations and disci-
plinary warnings violate the Act even if the activities of March 20 were
unprotected. I need not reach that argument and in any event, I find
that Respondent fired the six and disciplined the three for posting the
sick day posters near its stores on March 20.
5 I would note that an employer has a heavier burden when seeking
to be excused from its obligation to reinstate or pay backpay to a dis-
criminatee because of misconduct which was not a factor in the dis-
criminatee’s termination than it does in seeking to justify the original
discrimination. Since I find that Respondent did not justify the original
terminations, it follows that it did not meet its burden of establishing
misconduct so flagrant after the terminations to excuse it from its rein-
statement and backpay obligations, Hawaii Tribune-Herald, 356 NLRB
661 (2011).

JIMMY JOHN’S 303
spondent’s employees wear plastic gloves when making sand-
wiches but apparently do not wear gloves when bagging nap-
kins for an order that is to be delivered. (Tr. 266, 273–274.)
Antiunion Facebook Postings
On October 17, 2010, or earlier, a rank-and-file employee es-
tablished the Jimmy John’s antiunion Facebook page. This
page was “open,” meaning that it could be accessed by anyone
who had a Facebook account via the internet. Unlike a closed
Facebook page, it was accessible to people who were not mem-
bers of the Facebook group. Members of the antiunion Face-
book group included rank-and-file employees, a number of
Respondent’s store managers and assistant managers, area
managers, and Co-owner Rob Mulligan. Union supporters
Mike Wilklow and Erik Forman were able to access the Face-
book page. Wilklow posted comments on it under the name
Mike Pudd’nhead. (GC Exh. 2, 18–19.)
Sometime in March, Rob Mulligan posted a notice that he
had received a text message from David Boehnke regarding the
Union’s intention to put up the “working sick” poster. (GC
Exh. 45.) Rob Mulligan encouraged members of the Facebook
group to take the posters down.
Sometime in March 2011, Rene Nichols, the assistant man-
ager at Respondent’s Skyway store, where Boehnke had
worked, posted Boehnke’s telephone number and suggested
that Facebook members text Boehnke to “let him know how
they feel.” (GC Exh. 2, p. 30.) She also posted a message,
“Fuck You David Forever.” Respondent admits that Nichols
was and is one of its supervisors and its agent as defined in
Section 2(11) and (13) of the Act.
Also on March 20, Nichols responded to a ranting negative
description of Boehnke by another member of the Facebook
group, by observing, “You forgot to say unibrow. He just likes
things that begin with ‘uni’ lolz.” Co-owner Rob Mulligan
added a post shortly thereafter, “I call him, “The Unibrowner.”
This is apparently a reference to Boehnke’s eyebrows and the
“Unibomber,” Ted Kaczynski, who mailed explosive packages
to various people over a period of years. (GC Exh. 2, p. 31.)
On March 31, 2011, Rene Nichols posted a message, “Haaaa
Ben—2 David—0 Fartbag.” This referred to a posting former
employee Ben McCarthy had placed on the website depicting
David Boehnke with feces on the bill of his cap. Several
months earlier, Respondent fired McCarthy after Boehnke
complained to Michael Mulligan that McCarthy had put feces
in his winter coat.6 Melissa Erickson, the manager of Re-
spondent’s Franklin store posted her approval of McCarthy’s
picture of Boehnke and on March 31, suggested they be put up
everywhere. Assistant Store Manager Eddie Guerrero made a
similar post. (GC Exh. 2, p. 16.)
Nichols added a number of Jimmy John’s employees to the
Facebook group. (Tr. 79.) Some of these appear to have been
rank-and-file employees.
6 Respondent did not contest McCarthy’s claim for unemployment
insurance. It did contest the claims of the six union members fired for
the postings on March 20.
Alleged Interrogation (Complaint Par. 5(b))
In January 2011, Mike Mulligan asked Micah Buckley-
Farlee if Mike Wilklow knew that Respondent was reimbursing
Wilklow for damage to his bicycle. Wilklow was on workers’
compensation at this time, having been injured while riding his
bicycle making a delivery for Respondent. Buckley-Farlee
responded that he believed Wilklow was aware of the fact that
he was being reimbursed. Mulligan then asked if Wilklow was
happy that he was being reimbursed and whether Wilklow was
“ready to support the Company now.” At the time it was well
known that Wilklow was a very active supporter of the Union.7
Removal of Union Literature (Complaint Par. 5 (c))
In January and February 2011, union supporter Travis Erick-
son posted a copy of the amended charge in Case 18–CA–
019551 (GC Exh. 62) and a flyer entitled FAQ (frequently
asked questions) about the union election and settlement (GC
Exh. 61) at Respondent’s Riverside store. On February 10,
Jason Effertz, one of Respondent’s area managers, told Erick-
son he had been taking down these union flyers because he was
told they were unprotected.
Analysis
The Posting of the “Sick Day” Posters at Respondent’s
Stores and Outside those Stores on March 20, 2011,
are Protected by Section 7 of the Act
The relevant legal framework for analyzing this case was set
forth in great detail in Valley Hospital Medical Center, 351
NLRB 1250, 1252 (2007):

Section 7 of the Act provides, in pertinent part, that
“[e]mployees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection . . .
.” The protection afforded by Section 7 extends to em-
ployee efforts to improve terms and conditions of em-
ployment or otherwise improve their lot as employees
through channels outside the immediate employee-
employer relationship. See Eastex, Inc. v. NLRB, 437 U.S.
556, 565 (1978). Thus, Section 7 protects employee
communications to the public that are part of and related
to an ongoing labor dispute. See, e.g., Allied Aviation Ser-
vice Co. of New Jersey, Inc., 248 NLRB 229, 231 (1980),
enfd. mem. 636 F.2d 1210 (3d Cir. 1980). This includes
communications about labor disputes to newspaper report-
ers. See, e.g., Hacienda de Salud-Espanola, 317 NLRB
962, 966 (1995). . . .
But finding that employees’ communications are relat-
ed to a labor dispute or terms and conditions of employ-
ment does not end the inquiry. Otherwise protected com-
munications with third parties may be “so disloyal, reck-
less, or maliciously untrue [as] to lose the Act’s protec-
7 Mike Mulligan testified that he did not recall this conversation. I
credit Buckley-Farlee that it occurred. Buckley had also been an open
supporter of the Union at least since October 2010. (See GC Exh. 37,
Objections to the Election, p. 6.)

304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion.” Emarco, Inc., 284 NLRB 832, 833 (1987); accord:
Mountain Shadows Golf Resort, 330 NLRB 1238, 1240
(2000).
Statements have been found to be unprotected as dis-
loyal where they are made “at a critical time in the initia-
tion of the company’s” business and where they constitute
“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.” NLRB v. Electrical Workers Lo-
cal 1229 (Jefferson Standard), 346 U.S. 464, 472 (1953);
accord: Endicott Interconnect Technologies, Inc. v. NLRB,
453 F.3d 532, 537 (D.C. Cir. 2006), denying enforcement
of 345 NLRB 448 (2005). The Board is careful, however,
“to distinguish between disparagement of an employer’s
product and the airing of what may be highly sensitive is-
sues.” Professional Porter & Window Cleaning Co., supra
at 139. To lose the Act’s protection as an act of disloyalty,
an employee’s public criticism of an employer must evi-
dence “a malicious motive.” Richboro Community Mental
Health Council, 242 NLRB 1267, 1268 (1979).
Statements are also unprotected if they are maliciously
untrue, i.e., if they are made with knowledge of their falsi-
ty or with reckless disregard for their truth or falsity. See,
e.g., TNT Logistics North America, Inc., 347 NLRB 568,
569 (2006). The mere fact that statements are false, mis-
leading or inaccurate is insufficient to demonstrate that
they are maliciously untrue. . . .

The Board most recently addressed this issue in Mastec Ad-
vanced Technologies, 357 NLRB 103 (2011), and Dresser-
Rand Co., 358 NLRB 254 (2012).8 Numerous Board cases
establish that virtually any form of protected activity can be
subjectively considered disloyal, including forming, joining, or
assisting a labor organization, e.g., RTP Co., 334 NLRB 466,
467, 476 (2001), enfd. 315 F.3d 951 (2003). Moreover, pro-
tected activity will often adversely impact an employer’s repu-
tation and revenue. Indeed, Justice Frankfurter in his Jefferson
Standard dissent observed that, “Many of the legally recog-
nized tactics and weapons of labor would readily be condemned
for “disloyalty” were they employed between man and man in
friendly personal relations,” 346 U.S 464 at 479–480.
There is no question that if employees posted or handed out
flyers asking the public not to patronize their employer because
they did not get paid sick leave, such conduct would be protect-
ed, Kitty Clover, Inc., 103 NLRB 1665, 1687–1688 (1953);
Arlington Electric Inc., 332 NLRB 845, 846 (2000). Appeals
to customers that may adversely affect the employer’s revenue
have been found to be protected by Section 7 in many cases.
For example, in Allied Aviation Service of New Jersey, Inc.,
248 NLRB 229 (1980), enfd. 636 F.2d 1210 (3d Cir. 1980), the
8 In Dresser-Rand, the Board affirming the judge, found that some
statements made by the alleged discriminatee to third parties were
protected hyperbole but that one in particular, a grossly inaccurate
factual misrepresentation about the decline in the workload at one of
Dresser-Rand’s facilities, was not. The Board found that this statement
was made with actual malice and with a reckless disregard for its truth.
I conclude this case is distinguishable from Dresser-Rand on its facts.
Board found that the letters of a union steward to his employ-
er’s customers were protected. The steward in that case
claimed that his employer’s practices relating to the servicing
and main-tenance of ground vehicles created a safety hazard to
customers and resulted in inferior service.9
The Posters were Sufficiently Connected to a
Labor Dispute to be Protected by the Act
The March 20, 2011 postings clearly meet the first prong of
the Board’s analysis for determining whether they were pro-
tected in that the postings were clearly tied to a labor dispute.
Respondent argues that this is not the case in that the Union
was not legitimately concerned with the public’s health, only
with browbeating Respondent into negotiating with it over sick
days. However, the poster focused on the employees’ lack of
sick days, a term and condition of employment. It may well be
that had Respondent acceded to the Union’s demands on sick
leave, the Union would have moved on to other demands in its
10-point program. However, there is no basis on which to con-
clude that the absence of sick leave was not a real concern of
the Union and the discriminatees when they posted the sick day
flyers.
The Statement, “Shoot We Can’t Even Call in Sick”
is not a Sufficient Departure from the Truth
to Render the Posters Unprotected
A second factor in the Board’s analysis of these types of cas-
es is whether the Union put up the flyers with knowledge of
their falsity or with reckless disregard for their truth or falsity.
The Union’s first factual assertion, that Jimmy John’s employ-
ees do not get paid sick days, is true, at least with regard to
MikLin. The record is silent as to whether or not this is true to
all or some other Jimmy Johns stores.
On the other hand, it is not literally true that employees
could not call in sick. However, Respondent’s argument to the
contrary is not entirely accurate either. Employees were and
still are subject to discipline if they call in sick without finding
a replacement. Moreover, finding a replacement may present a
significant burden to an employee who is sick enough to miss
work (particularly one who is vomiting or is experiencing diar-
rhea).
The fact that a statement may not be 100-percent accurate
does not necessarily lose the protection of Section 7. As noted
by the United States Court of Appeals for the Ninth Circuit in
Sacramento Union, 889 F.2d, 210, 220 (9th Cir. 1989), “third
parties who receive appeals for support in a labor dispute will
filter the information critically so long as they are aware it is
generated out of that context.”
9 Although Coca Cola Bottling Works, 186 NLRB 1050, 1054–1055
(1970), cited by Respondent at pp. 38–39 of its brief, has never been
explicitly overruled, I infer that it has implicitly been overruled by
Allied Aviation Service of New Jersey. On the basis of Allied Aviation,
I conclude that disparagement of the employer’s product may, at least
in some situations, be insufficient justification for an employee’s termi-
nation—if connected to a labor dispute. Moreover, the part of the Coca
Cola Bottling decision regarding product disparagement appears to be
dicta since the employees in question were not denied reinstatement by
the Board. The reason for this was that the employer had not relied on
the employees’ disparagement in refusing to reinstate them.

JIMMY JOHN’S 305
More recently the United States Court of Appeals for the
Sixth Circuit observed that “Society generally distinguishes
between the kind of statements made in private or semiprivate
communications from those statements made in more public
setting such as protests, strikes or organizing campaigns,” Jol-
liff v. NLRB, 513 NLRB 600, 611–613 (2008). The court
opined that speech in the latter setting is more likely to be rhe-
torical and exaggerated. I thus conclude that the wording of the
poster, “workers don’t get paid sick days, shoot, we can’t even
call in sick,” constitutes protected hyperbole.
The Suggestion that Employees’ Lack of Paid Sick Days
May Cause a Customer to Become Ill is Insufficient to
Render the Posters Unprotected
The lack of paid sick leave provides a powerful economic
incentive for employees to work when ill and to conceal illness
that would exclude them from work if that is possible.10 Fur-
thermore, it is at least arguable that Respondent’s sick leave
policy subjects the public to an increased risk of food borne
disease, in part due to the two prior incidents described below.
In January 2006, the Minnesota Department of Health
(MDH) investigated complaints of gastrointestinal illness
among four Jimmy John’s employees at Respondent’s Block E
store. The MDH concluded that ham was likely contaminated
by an ill or recently ill person that cut or handled the ham and
caused the outbreak. (GC Exh. 14.)
The MDH also investigated an outbreak of novrovirus gas-
troenteritis at one of MikLin’s stores in January 2007. (GC
Exh. 15.) The MDH investigation concluded that sub style
sandwiches were like contaminated by a previously ill food-
worker. This employee experienced 13 hours of vomiting,
which ended on January 26, 2007. She returned to work on
January 29, when she apparently contaminated the sandwiches.
The MDH investigator “noted overall compliance with food
code requirements and no critical violations.”
Thus, if this employee in fact caused the food poisoning, nei-
ther compliance with the Minnesota food regulations nor Re-
spondent’s new policy prohibiting employees from working
until flu symptoms have subsided for 24 hours would have
prevented this outbreak. Moreover, the record is silent as to
whether Respondent has taken any precautions in addition to
those in place in 2006 and 2007 to prevent a recurrence of food
poisoning.11
One could argue that two cases of foodborne disease in 10
years when Respondent has made 6 million sandwiches renders
any correlation between Respondent’s sick leave policy and
food borne illness to be so improbable that the Union’s posters
should be unprotected. Moreover, there has been no direct
correlation established between these incidents and the absence
of sick leave. Given Respondent’s record over a 10-year period
one could regard the risk of becoming ill by eating at one of
Respondent’s shops to be infinitesimal. However, it is also
10 On the other hand, it is also true that if employees have paid sick
leave or personal days and use them up, they may also have an incen-
tive to work when ill.
11 The record is also silent as to whether any of the discriminatees
were aware of these incidents when the March 20 flyers were posted.
arguable that Respondent’s policies make it somewhat more
likely that such an incident could reoccur.
This record is silent as to whether the absence of sick leave
leaves the public and/or Respondent’s employees more vulner-
able to other maladies, which are not transmitted through food,
such as the common cold. However, it is clear that Respond-
ent’s employees work in very close proximity to each other
while making sandwiches.
Employees can make sandwiches with a cold, cough, or run-
ny nose and are more likely to do so without paid sick leave.
They are also more likely to do so if they must obtain a re-
placement or be faced with discipline.
Also, Respondent was hardly defenseless with regard to the
Union’s postings. It could have waged its own publicity cam-
paign which could well have generated sympathy for it and
indeed possibly attracted consumers. If Respondent were to
accede to the Union’s demands with regard to paid sick leave,
wage increases, etc., it is quite likely that Respondent would
have to raise its prices. The public may well choose to patron-
ize Respondent and other Jimmy John’s stores as opposed to
paying a higher price for lunch.
Moreover, Respondent could have waged a publicity cam-
paign, by posting flyers or other means, criticizing the Union
and its tactics. It could have appealed, for example, to the anti-
radical sentiment of much of the public as it did at trial and in
its posttrial brief, citing radical statements and articles attribut-
ed to some of the discriminatees. It is conceivable that such a
campaign would have increased the patronage of Respondent’s
stores.
Finally, Board precedent recognizes that statements linked to
a labor dispute which were uttered with actual malice may be
unprotected. However, the burden of proving “actual malice”
requires the party asserting actual malice to demonstrate with
clear and convincing evidence that the accused party realized
that his or her statement was false or that he or she subjectively
entertained serious doubt as to the truth of the statement, Bose
Corp. v.Consumers Union of U.S., Inc., 466 US 485, 511 fn. 30
(1984); Jolliff v. NLRB, 513 NLRB 600, 613 (2008). This
would require Respondent to prove that a particular discrim-
inatee realized the statements in the sick day posters regarding
risk to the public were false or entertained serious doubts about
the truth therein, in order to justify the termination of that indi-
vidual employee. Respondent has not made this showing with
regard to any of the alleged discriminatees. It has at best
demonstrated that each one had insufficient knowledge to know
whether or not the statements in the posters were true.
In conclusion, I find that Respondent violated Section 8(a)(3)
and (1) in terminating Erik Forman, Mike Wilklow, Davis
Ritsema, David Boehnke, Max Specktor, and Micah Buckley-
Farlee on March 22, 2011, and issuing written warnings the
same day to Isaiah (Ayo) Collins, Sean Eddins, and Brittany
Koppy.12
12 I reject the argument of the General Counsel and the Charging
Party that Respondent violated the Act even if the posters were unpro-
tected. I find no illegal discrimination in treating the employees who
planned and organized the flyer postings more harshly than those “foot
soldiers” who did the posting. An analogous situation would be termi-

306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Removal of Union Posters from the Public Bulletin Boards
and from Property not Belonging to Respondent

Removal of Other Union Literature by
Area Manager Jason Effertz
Since I have concluded that the posting of the sick day post-
ers constituted protected activity, I also conclude that Rob Mul-
ligan violated Section 8(a)(1) as alleged in complaint paragraph
5(g), by encouraging others to take them down, Muncy Corp.,
211 NLRB 263, 272 (1974); St. Louis Auto Parts Co., 315
NLRB 717, 720 (1994).
Respondent, by Area Manager Jason Effertz also violated
Section 8(a)(1) in removing union literature from a bulletin
board used freely by its employees and others, without any
limitation, Jennings & Webb, Inc., 288 NLRB 682, 692 (1988).
The fact that Respondent believes that some of the assertions in
the literature to be inaccurate does not entitle it to remove the
material from a bulletin board on which it allows virtually any-
thing else to be posted.
Disparagement of Union Supporters
“It is well settled that the Act countenances a significant de-
gree of vituperative speech in the heat of labor relations,”
Trailmobile Trailer, LLC, 343 NLRB 95 (2004). An employer
generally violates the Act if the disparagement conveys explicit
or implicit threats, suggests that employees’ union activities are
futile, or constitutes harassment that would reasonably interfere
with employees’ Section 7 rights. Words of disparagement
alone concerning a union, its officials or supporters are insuffi-
cient for finding a violation of Section 8(a)(1), Sears, Roebuck
& Co., 305 NLRB 193 (1991).
I therefore dismiss the complaint allegations regarding the
Facebook postings with one exception. I find that Assistant
Manager Rene Nichols’ posts violated Section 8(a)(1). By
encouraging employees and managers to text David Boehnke
without any specification of what they should communicate to
Boehnke, Nichols was encouraging other employees and man-
agers to harass Boehnke for activities that were protected, as
well as some that were arguably unprotected. Rob Mulligan’s
posts on Facebook condoned such harassment.
Alleged Illegal Interrogation
I dismiss complaint paragraph 5(b) alleging that Respondent,
by Mike Mulligan, illegally interrogated Micah Buckley-Farlee
about Mike Wilklow’s union sympathies. Since the alleged
interrogation involved two very open union supporters, I con-
clude that it did not violate the Act, Rossmore House, 269
nating an employee who fomented strike misconduct but did not partic-
ipate in the misconduct. However, it is possible that Micah Buckley-
Farlee’s involvement in planning the postings is too attenuated to justi-
fy his termination even if the posting was unprotected, Patterson-
Sargent Co., 115 NLRB, 1627, 1630–1631 (1956). I do not believe I
need to analyze whether or not this is so. Buckley-Farlee did not attend
the March 10 meeting and did not participate in the flyer posting. His
only connection to this activity was being listed as a contact in a press
release which mentioned the Union’s intention to post the sick day
flyers.
NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985); Nor-
ton Audubon Hospital, 338 NLRB 320, 320–321 (2002).
Other Arguments in Respondent’s Brief
I also find that Section 302(b) of the LMRA, cited by Re-
spondent at pages 36–38 of its brief, has no relevance to this
case. The LMRA is directed at bribery of union officials or
employees and extortion, rather than acceding to the demands
of employees exercising their Section 7 rights to improve the
terms and conditions of their employment. Arroyo v. U.S., 359
U.S. 419, 425–426 (1959). Caterpillar, Inc. v. Auto Workers,
107 F.3d 1052, 1057 (3d Cir. 1997) (enbanc).
I also reject Respondent’s argument that the Union engaged
in unlawful prerecognition bargaining. The Union did not ask
for recognition in March 2011, nor did it ask Respondent to
sign a collective-bargaining agreement with it. Employees
have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of
their own choosing, “and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid
or protection . . . [Emphasis added].” They do not lose this
right by supporting a union which loses a representation elec-
tion. Any employee on behalf of himself or herself and others,
and any group of employees, with or without a union, may
concertedly petition their employer for an improvement in
terms and conditions of their employment, see, e.g., Phillips
Petroleum Co., 339 NLRB 916 (2003); Section 9(a) of the Act.
CONCLUSIONS OF LAW
Respondent, MikLin Enterprises, Inc., has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(3) and (1) and Section 2(6) and (7) of the Act as fol-
lows
1. By removing union postings from its Riverside store.
2. By Assistant Manager Rene Nichols in posting an em-
ployee’s telephone number on Facebook and soliciting other
employees, supervisors, and managers to call or text the em-
ployee about his protected activities.
3. By co-owner Rob Mulligan in encouraging employees to
remove union posters from property not belonging to Respond-
ent.
4. By Area Manager Jason Effertz and other agents in re-
moving union posters and other union literature from in-store
bulletin boards on which other material was generally posted
without any restriction.
5. By terminating the employment of Max Specktor, David
Boehnke, Davis Ritsema, Mike Wilklow, Erik Forman, and
Micah Buckley-Farlee on March 22, 2011.
6. By issuing final written warnings to Isaiah (Ayo) Collins,
Brittany Koppy, and Sean Eddins on March 22, 2011.
THE REMEDY
The Respondent, having discriminatorily discharged em-
ployees, must offer them reinstatement and make them whole
for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), compounded daily as

JIMMY JOHN’S 307
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010).
Respondent shall reimburse the discriminatees in amounts
equal to the difference in taxes owed upon receipt of a lump-
sum backpay award and taxes that would have been owed had
there been no discrimination. Respondent shall also take what-
ever steps are necessary to insure that the Social Security Ad-
ministration credits the discriminatees’ backpay to the proper
quarters on their Social Security earnings records.
[Recommended Order omitted from publication.]