## Facts

- MikLin Enterprises operated multiple sandwich-shop franchises and maintained an attendance rule requiring employees who missed shifts to find their own replacements; it provided no paid sick leave.
- Employees, supported by a union organizing effort, sought paid sick leave and ran a public campaign during flu season.
- The campaign used posters, a press release, and a media letter implying customers could not tell whether a sandwich was made by a sick worker and warning that eating the food could “test” customers’ immune systems.
- The communications asserted or implied employees could not call in sick and alleged that health-code violations were a daily occurrence, linking the sick-leave policy to customer health risks.
- Management removed posters from workplace bulletin boards; the employees then distributed flyers more broadly, including materials listing a co-owner’s personal phone number, generating substantial customer calls.
- MikLin discharged six employees involved in the campaign and issued written warnings to three others.
- An ALJ and a divided Board concluded the campaign was protected concerted activity and found violations of NLRA §§ 8(a)(1) and 8(a)(3) for the discipline and for seeking poster removal; the Board also found separate § 8(a)(1) violations involving manager conduct and removal of union materials.
- The court of appeals, sitting en banc, reviewed MikLin’s petition for review and the Board’s cross-petition for enforcement.

## Issues

1. Whether the employees’ public communications attacking product safety in connection with a labor dispute were so disloyal, reckless, or maliciously untrue as to lose NLRA § 7 protection under the Jefferson Standard doctrine.
2. Whether MikLin violated §§ 8(a)(1) and 8(a)(3) by discharging and disciplining employees for the campaign and by soliciting removal of the campaign posters.
3. Whether substantial evidence supported separate § 8(a)(1) findings based on management’s social-media harassment of a union supporter and removal of union-related materials.

## Decision

- The court partially granted MikLin’s petition for review and partially enforced the Board’s order.
- The court declined to enforce the Board’s finding that the discharges, discipline, and poster-removal efforts were unlawful, holding the campaign lost § 7 protection under Jefferson Standard.
- The court enforced the Board’s findings that MikLin violated § 8(a)(1) through managers’ social-media harassment tied to protected activity and through removal of certain union materials from posting areas.

## Legal Principles

- Concerted employee activity under NLRA § 7 may lose protection when employees publicly attack an employer’s business in a manner that is disloyal, reckless, or maliciously untrue, particularly when the attack is reasonably calculated to harm the employer’s business.
- Public appeals connected to a labor dispute can be protected, but statements impugning the safety or quality of the employer’s product may be unprotected when they are materially false or misleading and not a fair extension of the dispute.
- An employer does not commit §§ 8(a)(1) or 8(a)(3) violations by disciplining employees for unprotected conduct.
- Employer conduct that disparages or harasses employees because of protected activity, or that restricts employees’ ability to post and distribute union-related materials in customary areas, can unlawfully interfere with § 7 rights in violation of § 8(a)(1).

## Conclusion

The en banc court held that employees who publicly framed a sick-leave dispute as a food-safety threat using materially misleading claims engaged in unprotected disloyal disparagement, allowing discipline, while separately upholding Board findings that management unlawfully interfered with organizing rights through social-media harassment and removal of union materials.


MikLin Enters., Inc. v. NLRB, 861 F.3d 812 (8th Cir. 2017) (en banc)