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Sept. 16 — The National Labor Relations Board properly held that DirecTV and an installation contractor unlawfully fired 26 technicians who protested the companies’ actions during a wage dispute, a divided U.S. Court of Appeals for the District of Columbia Circuit ruled ( DirecTV, Inc. v. NLRB , 2016 BL 305116, D.C. Cir., No. 11-1273, 9/16/16 ).
The Sept. 16 decision reaffirms that an employee may have the freedom to comment about a labor dispute even if the remarks are unfair or unflattering to the employer involved.
The companies argued the technicians lost federal labor law protection by making false statements during a television newscast, but Judge Sri Srinivasan wrote for the court that the NLRB acted within its discretion in finding that the employees were protected by the National Labor Relations Act.
Judge Janice Rogers Brown dissented from the court’s ruling. The employees lost NLRA protection by knowingly making inaccurate claims that the companies were engaged in deceptive business practices, Brown said.
According to the decision, MasTec Advanced Technologies technicians installed and activated home satellite television equipment for DirecTV in the Orlando, Fla., area.
The satellite TV service favored connecting its equipment to a phone line, which enabled customers to use additional features and allowed DirectTV to track customer viewing habits. Although the telephone connection was free, many customers resisted adding it to their basic service.
In early 2006, DirecTV informed MasTec that it would reduce payments for home installations if technicians did not connect at least 50 percent of new customers to phone lines.
MasTec in turn changed the technicians’ pay, cutting workers’ pay if they failed to keep their performance up to the 50 percent threshold.
The employees complained to MasTec, but one MasTec manager encouraged employees to tell customers “whatever you have to tell them” or “whatever it takes” in order to get their approval for the telephone connections.
Eventually, more than two dozen technicians dressed in their DirecTV uniforms went to a local TV studio where a news reporter conducted a group interview.
The TV station advertised the upcoming news story with a “teaser” that included video of the interviewer asking “So you’ve basically been told to lie to customers,” and a technician answering, “yeah.”
Shortly after the news story aired, DirecTV advised MasTec it did not want service performed by any of the technicians who appeared in the news broadcast. MasTec informed the technicians that they were at-will employees and fired them.
An NLRB administrative law judge found the discharges were lawful. Although only two employees in the group made allegedly false or disloyal comments on the air, he concluded the joint appearance and tacit approval of all the participants meant they lost NLRA protection for their activity.
However, the board reversed (357 N.L.R.B. 103, 191 LRRM 1017 (2011)), and the appeals court enforced the board order.
Writing for the court, Srinivasan said the board finds communications to third parties protected if they relate to an ongoing labor dispute and are not “so disloyal, reckless or maliciously untrue as to lose the Act’s protection.”
There was no question that the on-air comments of the installers related to their pay dispute, and the board had substantial evidence that the employee comments were not flagrantly disloyal or maliciously untruthful, the court said.
The companies argued that the employees’ statements were in some cases incomplete or misleading explanations of MasTec’s revised pay plan. But Srinivasan wrote that substantial evidence supported the NLRB’s determination that firing the employees unlawfully interfered with their right to engage in concerted activity for their mutual aid or protection.
Judge Judith W. Rogers joined in the opinion.
Dissenting, Brown said, “Instead of attempting to balance conflicting interests, the NLRB reacts like a pinball machine stuck on tilt; reflexively ensuring employers always lose a turn.”
Brown said the employees gave the public the impression they had been pressured to lie to customers when they knew that was not the companies’ objective.
Finding the technicians “needlessly tarnished” the reputations of DirecTV and MasTec, Brown said the employees lost the protection of the NLRA and were lawfully discharged.
Gavin S. Appleby of Littler Mendelson P.C. in Atlanta argued for MasTec Advanced Technologies. Jonathan C. Fritts of Morgan, Lewis & Bockius LLP in Washington argued for DirecTV. NLRB attorney Douglas E. Callahan argued for the board, and Matthew J. Ginsburg in Washington argued for the AFL-CIO as an amicus curiae supporting the NLRB.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/DirecTV_Inc_v_NLRB_No_111273_Consolidated_with_111274_111294_2016.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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