The National Labor Relations Board ("NLRB") ruled last month that an employer's termination of non-unionized employees who had appeared on a television newscast wearing their uniforms while making disparaging statements about the employer violated the National Labor Relations Act ("NLRA"). The NLRB held that the employees' behavior constituted protected concerted activity within the meaning of Section 7 of the NLRA because the statements were related to a work dispute and were not disloyal, reckless or maliciously untrue.
The employer in this case, MasTec, Inc., installs and maintains satellite television equipment for DirecTV in Florida. MasTec service technicians were allegedly encouraged to persuade customers to permit the DirecTV satellite receivers to be connected to the customers' home telephone lines. Although a telephone connection is not required for the system to function, it does provide customers with additional features and assists DirecTV in making programming decisions by providing a record of what customers are viewing. Even though there was often no extra charge for the telephone line connection, many customers resisted the installation for a variety of reasons.
The contract between DirecTV and MasTec allowed for penalties to be imposed on MasTec if it failed to meet certain performance standards. In 2006, DirecTV reportedly informed MasTec that penalties would be assessed if MasTec did not increase the percentage of telephone line connections for new installations. In response, MasTec allegedly told its employee service technicians that they would be back-charged $5 for every receiver installed without a phone line connection if they failed to achieve a telephone line connection rate of at least 50 percent. When the service technicians voiced opposition to the new policy at several employee meetings, MasTec supervisors reportedly suggested ways around customers' reluctance – including one manager who reportedly told them to do "whatever it takes" and to tell the customers "whatever you have to tell them" to get the customers to agree.
After a number of service technicians received deductions from their paychecks in accordance with the new policy, one of them contacted a local television news reporter and arranged for a group of service technicians to drive from the MasTec facility, using the company's vans, for a group interview. The news station broadcast a story the following month in which the technicians, wearing uniforms bearing the DirecTV logo, described MasTec's new policy and made statements indicating that they were instructed or encouraged to lie to customers. One employee stated that his supervisor at MasTec had said, "tell the customer whatever you have to tell them. Tell them if these phone lines are not connected the receiver will blow up." The employees also made statements indicating that customers would incur extra charges for the unnecessary telephone line installations, when in fact that was only true for custom rather than standard installations.
After the story aired, MasTec terminated the employees who appeared on the broadcast and the employees filed an unfair labor practice charge with the NLRB. After the NLRB investigated the charge, the case went to hearing, and an administrative law judge ruled in favor of MasTec, finding that the employees' statements were "so disloyal, reckless, and maliciously untrue" as to lose protection under the NLRA. The employees appealed the decision to the NLRB Panel in Washington, D.C., which reversed the ALJ's decision.
The NLRB Panel began its analysis by citing Section 7 of the NRLA, which provides, in part, that employees "shall have the right … to engage in … concerted activities for the purpose of … mutual aid or protection." The NLRB Panel noted that under Section 7, "employee communications to third parties in an effort to obtain their support are protected where the communication indicated it is related to an ongoing dispute between the employees and the employers and the communication is not so disloyal, reckless or maliciously untrue as to lose the Act's protection." Applying this standard, the NLRB Panel found that none of the technicians' statements made during the newscast were maliciously untrue—noting that the mere fact that statements are false, misleading or inaccurate is insufficient to demonstrate that they are maliciously untrue. The NLRB also found that the statements were not disloyal or reckless, reasoning, "[w]hile the technicians may have been aware that some consumers might cancel [DirecTV's] services after listening to the newscast, there is no evidence that they intended to inflict such harm on [DirecTV], or that they acted recklessly without regard for the financial consequences to [DirectTV's] businesses."
We previously reported on a string of NLRB issued complaints addressing the scope of protected concerted activity under Section 7 of the NLRA. Given the recent enforcement activity by the NLRB, employers should keep in mind that the NLRA's reach extends to non-unionized workplaces and that violations can carry significant consequences—in this case, MasTec was ordered to immediately reinstate the terminated employees and to provide them with full backpay. The takeaway from this decision is that employees' communications to third parties, so long as they are related to a work dispute, may qualify as protected activity under the NLRA even if the communications are false, misleading, inaccurate, or highly objectionable to management.