By contrast, sharply disparaging the employer's product or services as unsafe, unhealthy, or of shoddy quality causes harm that outlasts the labor dispute, to the detriment of all employees as well as the employer. See Diamond Walnut Growers, Inc. v. NLRB , 113 F.3d 1259, 1267 (D.C. Cir. 1997) (en banc), cert. denied , 523 U.S. 1020, 118 S.Ct. 1299, 140 L.Ed.2d 466 (1998) ; compare Montefiore , 621 F.2d at 517 (efforts by striking doctors to discourage patients from entering the clinic were unprotected, although related to labor dispute, because they "appealed to patients to turn away not out of sympathy with the aims of the striking workers ..., but in the belief that they could not obtain competent treatment there"), and St. Luke's , 268 F.3d at 580 (nurse's public statements relating to ongoing labor dispute were unprotected because she "disparaged the quality of patient care being provided by [her employer] in a way guaranteed to adversely affect the hospital's reputation with prospective patients and the public at large"), with NLRB v. Greyhound Lines, Inc. , 660 F.2d 354, 357 (8th Cir. 1981) (bus drivers' factual statements regarding anticipated service delays were not unprotected because they "did not contain any insults or negative insinuations about the Company's services or integrity with respect to its customers"). The Board did not cite Dia

The company's ability to sell the product, even if the strike is subsequently settled, could well be destroyed. If a customer becomes apprehensive to bite into Diamond's walnuts because of a concern at finding an impurity (even part of a worm), it is unlikely that a strike settlement will eliminate that visceral fear.Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259, 1267 (D.C.Cir.1997) (en banc) (citation omitted), cert. denied, 523 U.S. 1020, 118 S.Ct. 1299, 140 L.Ed.2d 466 (1998). Here, the employees' posters graphically told customers (i) that MikLin's sandwich makers were working when they are sick ("Shoot, we can't even call in sick"), and (ii) that sandwiches made when they are sick will be contaminated ("we hope your immune system is ready").

LaBarge v. Vierkant (In re Vierkant), 240 B.R. 317 (B.A.P. 8th Cir. 1999). See Riley v. United States, 118 F.3d 1220, 1222 n.1 (8th Cir. 1997), cert. denied, 523 U.S. 1020, 118 S.Ct. 1299, 140 L.Ed.2d 466 (1998). Vierkant, 240 B.R. at 323-24 (citing Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969 (1st Cir.1997); Constitution Bank v. Tubbs, 68 F.3d 685 (3d Cir.1995); Parker v. Bain, 68 F.3d 1131 (9th Cir.1995); Franklin Sav. Ass'n v. Office of Thrift Supervision, 31 F.3d 1020 (10th Cir.1994); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522 (2d Cir.1994); Albany Partners, Ltd. v. Westbrook (In re Albany Partners, Ltd.), 749 F.2d 670 (11th Cir.1984); Matthews v. Rosene, 739 F.2d 249 (7th Cir.1984); Smith v. First America Bank, N.A. (In re Smith), 876 F.2d 524 (6th Cir.1989); National Labor Relations Bd. v. Edward Cooper Painting, Inc., 804 F.2d 934 (6th Cir.1986)).

Such claims are expressly preempted by § 360k. See Mitchell v. Collagen Corp., 126 F.3d 902, 913-14 (7th Cir. 1997), cert. denied, 523 U.S. 1020, 118 S.Ct. 1300, 140 L.Ed.2d 467 (1998). "State tort law that requires a manufacturer's [Class III device] to be safer, but hence less effective, than the model the FDA has approved disrupts the federal scheme."

We review evidentiary rulings for an abuse of discretion. Morro v. City of Birmingham, 117 F.3d 508, 513 (11th Cir. 1997), cert. denied, 523 U.S. 1020, 118 S.Ct. 1299, 140 L.Ed.2d 465 (1998). However, basing an evidentiary ruling on an erroneous view of the law constitutes an abuse of discretion per se.

We review the district court's evidentiary rulings for abuse of discretion. Morro v. City of Birmingham, 117 F.3d 508, 513 (11th Cir. 1997), cert. denied, 523 U.S. 1020, 118 S.Ct. 1299, 140 L.Ed.2d 465 (1998). However, basing an evidentiary ruling on an erroneous view of the law constitutes an abuse of discretion per se.

Contrary to the company's argument, the Board did not err in rejecting its Wright Line defense of personal animosity. Under Wright Line, once the General Counsel establishes that "protected conduct was a `motivating factor' in the employer's decision[,] . . . the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." Pace Indus., Inc. v. NLRB, 118 F.3d 585, 590 (8th Cir. 1997) (internal quotation omitted), cert. denied, 523 U.S. 1020, 118 S.Ct. 1299, 140 L.Ed.2d 466 (1998). As the Board noted, Wolfe's animosity towards the union applicants arose from their conduct in a protected activity. It is true that "not every act in support of . . . unionization . . . is protected by the law."

This conclusion is consistent with results in other federal circuit courts which have concluded that common law failure to warn claims are preempted by the MDA when the device has been approved after a PMA or NDA review. See Kemp v. Medtronic, Inc., 231 F.3d 216, 236-37 (6th Cir. 2000); Mitchell v. Collagen Corp., 126 F.3d 902, 907, 913 (7th Cir. 1997), cert. denied, 523 U.S. 1020, 118 S.Ct. 1300, 140 L.Ed.2d 467 (1998); cf. Papike v. Tambrands, Inc., 107 F.3d 737, 741-42 (9th Cir. 1997) (failure to warn claim preempted by FDA labeling regulations regarding toxic shock syndrome), cert. denied, 522 U.S. 862, 118 S.Ct. 166, 139 L.Ed.2d 110 (1997). But see Goodlin v. Medtronic, Inc., 167 F.3d 1367, 1377 (11th Cir. 1999) (failure to warn claim did not impose a substantive requirement).

Under the Wright Line analysis, "the General Counsel [must] make a prima facie showing sufficient to support the inference that protected conduct was a `motivating factor' in the employer's decision." Pace Indus., Inc. v. NLRB, 118 F.3d 585, 590 (8th Cir. 1997) (internal quotation omitted), cert. denied, 523 U.S. 1020, 118 S.Ct. 1299, 140 L.Ed.2d 466 (1998). "The burden is then on the employer, which can exonerate itself by showing that it would have [made the decision] for a legitimate, nondiscriminatory reason regardless of the employee's protected activity."

See FDIC v. Garner, 125 F.3d 1272, 1279 (9th Cir. 1997) (the threat of injury “must be imminent, not remote or speculative”), cert. denied, 523 U.S. 1020 (1998); Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“Speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction.”)