The District of Columbia federal appeals court ruled that DirecTV Inc. committed an unfair labor practice when it had contractor technicians fired for complaining about a pay dispute with the company on a TV news program. (DirecTV Inc. v. Nat’l Labor Relations Board, No. 11-1273 (D.C. Cir. 2016)).
DirecTV contracts with MasTec to install satellite television receivers in customers’ homes. The MasTec employees, based in Orlando, Florida, claimed they were pressured to convince customers to connect satellite service through a phone line in order to track viewing habits and increase pay-per-view business. The workers claimed management told them to do “whatever it took” to get customers to agree, including lying and installing phone lines without their knowledge. In 2006, under financial pressure from DirecTV, MasTec began docking the pay of technicians who didn’t meet quotas for phone line hookups.
After technicians complained to management, MasTec and DirecTV refused to change their policies. When a protest outside MasTec also failed to settle the matter, a group of MasTec technicians contacted a local TV news station, which interviewed them wearing their DirecTV uniforms. The report addressed the technicians’ grievances concerning the pay policy and their belief that they were being told to lie to customers; it also suggested that these phone connections could cost consumers more money.
DirecTV told MasTec it did not want the technicians in the broadcast representing DirecTV in customers’ homes, and MasTec then fired nearly all the technicians who participated.
Under the National Labor Relations Board’s interpretation of the National Labor Relations Act, “Employee communications to third parties in an effort to obtain their support are protected where (i) the communication indicate[s] it is related to an ongoing dispute and (ii) it is not so disloyal, reckless or maliciously untrue as to lose the Act’s protection.”
NLRB found the employees’ statements were largely “truthful representations of what the [companies] told them to do,” did not amount to unprotected disloyalty or reckless disparagement, and that the companies had committed an unfair labor practice by firing the technicians for doing the interview, because this was protected activity under the Act relating to their ongoing dispute about the new pay policy.
In its opinion, the D.C. Circuit stated that because the interview statements were related to an employment dispute, the only issue for the court to consider was whether the statements were “so disloyal, reckless or maliciously untrue as to lose the Act’s protection.”
The court found NLRB had rightly considered whether the employees’ statements in the newscast sought to draw public support for their grievance or simply aimed to harm their employer by causing consumers to cancel services. “The technicians participated in the newscast only after unsuccessfully attempting to resolve their dispute directly with their employer; the segment directly related to their objections to a pay policy they viewed to be unfair and called for them to mislead customers; and their statements sought to bring attention to the nature of their grievances rather than to unnecessarily tarnish their employer,” the court wrote.
The court noted that for statements to be “maliciously untrue and unprotected,” they must be made with knowledge of their falsity or with reckless disregard for the same. NLRB was not required to find a malicious falsehood in the technicians’ claim that they faced loss of compensation if they did not lie to customers, because that was fact.
The court rejected DirecTV’s argument that, even if the technicians had a protected right to air their grievances against their own employer, they had no such rights against DirecTV as their employer’s customer. “The Act makes clear that, if nothing else, DirecTV committed an unfair labor practice by causing MasTec to terminate its employees. [An] employer violates the Act when it directs, instructs, or orders another employer with whom it has business dealings to discharge, layoff, transfer, or otherwise affect the working conditions of the latter’s employees” for an unprotected reason.
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