DirecTV, Inc. v. National Labor Relations Board
207 L.R.R.M. (BNA) 3251, 837 F.3d 25, 2016 U.S. App. LEXIS 16940 (2016)
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Rule of Law:
Employees' public appeals to third parties in connection with an employment-related dispute are protected concerted activity under the National Labor Relations Act (NLRA) unless they are flagrantly disloyal, wholly incommensurate with any employment-related grievance, or maliciously untrue (made with knowledge of falsity or reckless disregard for truth).
Facts:
- In early 2006, DirecTV aimed to have its satellite receivers connected to customers' landline phone lines for various features and to track viewing habits.
- DirecTV began charging its contractor, MasTec, $5 for each receiver installed without a phone line connection if MasTec's connection rate fell below 50%.
- MasTec implemented a new pay policy for its installation technicians: they would be paid $2 less per installation, receive an additional $3.35 for connecting a phone line, and be "back-charged" $5 for each unconnected receiver if their monthly connection rate was below 50%.
- Many customers resisted phone connections, making it difficult for MasTec technicians to meet the 50% connection rate requirement.
- MasTec and DirecTV management advised technicians to use various tactics to secure phone connections, including suggestions that some technicians understood as instructions to mislead or lie to customers about the necessity of a phone connection, such as telling them "whatever you have to tell them" or that the receiver would "blow up" without a connection.
- Technicians repeatedly complained to MasTec management about the new pay policy and the pressure to mislead customers, but MasTec refused to change the policy.
- After receiving their first paychecks under the new policy and failing to resolve their grievances directly with MasTec, a group of MasTec technicians contacted a local television news station.
- The technicians, appearing in their DirecTV uniforms and vans, participated in an interview aired on local news, discussing their grievances about the pay policy, their belief they were told to lie to customers, and potential additional costs for customers.
- After the news segment aired, DirecTV informed MasTec that it did not want the technicians featured in the broadcast representing DirecTV in customers’ homes, leading MasTec to fire nearly all the participating technicians.
Procedural Posture:
- An unfair labor practice proceeding was initiated against MasTec and DirecTV before an Administrative Law Judge (ALJ).
- The ALJ initially found in favor of MasTec and DirecTV, concluding that the technicians' statements were "so disloyal, disparaging and malicious as to be unprotected."
- The National Labor Relations Board (NLRB) disagreed with the ALJ's finding, determining that the employees' communications were neither maliciously untrue nor so disloyal or reckless as to lose the Act's protection.
- The NLRB consequently held that MasTec and DirecTV had committed an unfair labor practice by firing the technicians and ordered their reinstatement.
- MasTec and DirecTV filed petitions for review in the United States Court of Appeals for the District of Columbia Circuit.
- The NLRB filed a cross-application for enforcement of its order.
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Issue:
Does an employer commit an unfair labor practice by terminating employees who participate in a public television interview concerning an ongoing pay dispute, where the employees make statements that the employer deems disloyal or maliciously untrue but which the National Labor Relations Board finds are protected concerted activity?
Opinions:
Majority - Srinivasan, Circuit Judge
Yes, an employer commits an unfair labor practice by terminating employees who participate in a public television interview concerning an ongoing pay dispute if the National Labor Relations Board reasonably finds their statements to be protected concerted activity, not so disloyal or maliciously untrue as to lose the Act's protection. The court upheld the Board’s finding that the technicians’ participation in the news segment was protected concerted activity. The National Labor Relations Act protects employees' right to engage in public appeals for support in a labor dispute, even if such appeals are somewhat disloyal, unless they are "flagrantly disloyal, wholly incommensurate with any employment-related grievance," or "maliciously untrue." The first prong of the Board's test—that the communication relates to an ongoing dispute—was undisputed. For the second prong, the Board reasonably concluded the technicians' statements were not "flagrantly disloyal" because they resorted to public appeal only after unsuccessful direct discussions with MasTec, and their complaints directly addressed their grievances about the unfair pay policy and the pressure to mislead customers, rather than gratuitously intending harm to the companies. The court distinguished George A. Hormel & Co. v. NLRB by explaining that Hormel addressed whether a disloyal act occurred, whereas here the question was the degree of disloyalty for an otherwise protected act, allowing consideration of employee intent regarding the degree of disloyalty. Regarding "maliciously untrue" statements, the court affirmed the Board's application of a standard requiring "knowledge of their falsity or with reckless disregard for their truth or falsity." The Board found most statements were accurate representations of what the companies instructed, and any inaccuracies were good-faith misstatements or incomplete statements, not malicious falsehoods. For example, being "essentially told to lie" was a reasonable interpretation of instructions to do "whatever it takes." The lack of complete detail about the 50% connection rate threshold was, at most, an inaccuracy, not maliciously untrue, especially given the technicians’ limited control over editing and their actual experiences. The "blow up" comment, while a joke, was reasonably understood as underscoring the pressure to mislead customers, and its repetition without expressly stating it was a joke did not render it maliciously untrue in context. Statements made by the reporter about customer fees were not attributable to the technicians. DirecTV was also liable for causing MasTec to terminate the employees, irrespective of a direct employer-employee relationship.
Dissenting - Brown, Circuit Judge
No, an employer does not commit an unfair labor practice when it terminates employees for making false, disparaging statements during a public television interview, even if connected to a labor dispute, as such conduct constitutes disloyalty unprotected by the NLRA. Judge Brown argued that the technicians' statements "crossed a line" from legitimate labor dispute activity to public disparagement through false accusations. The dissent contended the majority ignored circuit precedent, specifically George A. Hormel & Co. v. NLRB, by allowing the Board to excuse harmful statements based on a lack of evidence that employees intended to inflict harm. Judge Brown asserted that Hormel established an objective test for disloyalty, making subjective intent irrelevant. He criticized the Board's standard that only "flagrantly disloyal, wholly incommensurate" behavior is unprotected as an artificial and inappropriate narrowing of employers' "elemental" right to discharge for disloyalty, a right protected by NLRB v. Local Union No. 1229, Int'l Bhd. of Elec. Workers (Jefferson Standard). The dissent argued the technicians' statements were "maliciously untrue" because they falsely claimed they were required to lie to avoid back-charges, knowing that improved sales pitches or other methods could achieve connection rates without deception. Furthermore, knowingly repeating the "blow up" joke without its context, as if it were a serious instruction, constituted a malicious falsehood, painting the companies as unethical. Judge Brown also questioned the relevance of the "maliciously untrue" framework itself, arguing Jefferson Standard focused squarely on disloyalty rather than a separate inquiry into malicious falsity.
Analysis:
This case reinforces the National Labor Relations Board's broad authority to balance employee protection for concerted activity against employer rights to address disloyalty. It clarifies that even 'disloyal' public appeals linked to ongoing labor disputes can be protected, emphasizing the high bar (flagrantly disloyal, maliciously untrue) employers must meet to justify termination. The court's interpretation of 'maliciously untrue' requires more than mere inaccuracy or incompleteness, focusing on intent to deceive or reckless disregard for truth, providing significant leeway for employee communications in heated disputes. This decision could embolden employees to pursue public appeals, even if slightly misstated, without immediate fear of termination, as long as their core message remains tied to a legitimate grievance and lacks clear malicious intent to harm the employer's business gratuitously.
