DirecTV, Inc. v. National Labor Relations Board
2016 U.S. App. LEXIS 16940
| D.C. Cir. | 2016Background
- MasTec technicians were subject to a new pay policy tied to the percentage of DirecTV receivers they connected to landline phone lines; technicians risked $5 back-charges if their 30-day connection rate fell below 50%.
- Management advised technicians to do “whatever it takes” to obtain customer approval for phone connections; training materials and supervisors suggested telling customers a phone line was “mandatory” or otherwise overstating its necessity.
- After internal protests and unsuccessful attempts to resolve the dispute, a group of technicians (in DirecTV vans and uniforms) spoke to a local TV news reporter about the pay policy and alleging they were told to mislead customers; the segment aired multiple times.
- MasTec (and DirecTV, which objected to technicians representing DirecTV) terminated most technicians who participated in the broadcast.
- An ALJ found the terminations lawful (concluding the technicians’ statements were unprotected disloyalty/malicious falsehood). The NLRB reversed, holding the broadcast was protected concerted activity: it related to an ongoing labor dispute and was not flagrantly disloyal or maliciously untrue; the Board ordered reinstatement. The companies sought review; the D.C. Circuit enforced the Board’s order.
Issues
| Issue | Plaintiff's Argument (Companies) | Defendant's Argument (Board/Technicians) | Held |
|---|---|---|---|
| Whether technicians’ TV statements were protected concerted activity (relatedness prong) | Statements did not meaningfully relate to an employment dispute and thus were unprotected public disparagement | The broadcast plainly indicated it arose from the pay dispute and sought public support | Held protected on relatedness ground — no dispute the segment related to the pay dispute |
| Whether statements were so disloyal as to lose NLRA protection (disloyalty prong) | Statements were flagrantly disloyal and wholly incommensurate with the grievance, justifying discharge | Even if disloyal, conduct must be “flagrant” or wholly incommensurate to be unprotected; here statements were tied to the grievance and not intended to gratuitously harm employer | Held not so flagrantly disloyal; Board’s finding supported by substantial evidence |
| Whether statements were maliciously untrue (malicious-untruth prong) | Technicians knowingly made false statements (e.g., required to lie; told receivers would “blow up”; customers charged unnecessarily) and thus forfeited protection | Most technician statements accurately reflected management directions or were good-faith misstatements; some inaccurate items were reporter edits or hyperbole, not knowing falsehoods | Held not maliciously untrue; Board reasonably found statements truthful or at most honest/incomplete misstatements |
| Whether DirecTV, as a customer, can be liable for causing discharge of MasTec employees | DirecTV argued it was not the technicians’ employer and lacked liability | Board and ALJ found DirecTV is an employer under the Act for these purposes and may not induce unlawful terminations | Held DirecTV liable for causing MasTec to discharge employees; Board enforcement affirmed |
Key Cases Cited
- NLRB v. Local Union No. 1229, Int’l Bhd. of Elec. Workers, 346 U.S. 464 (1953) (establishes that disloyalty can justify discharge; provides foundational balancing of employer discharge rights and protected concerted activity)
- Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) (third-party appeals for mutual aid or protection are within §7 protection when related to workplace grievances)
- George A. Hormel & Co. v. NLRB, 962 F.2d 1061 (D.C. Cir. 1992) (requires an objective test for disloyalty; protects support of a boycott if tied to an ongoing dispute)
- Endicott Interconnect Techs., Inc. v. NLRB, 453 F.3d 532 (D.C. Cir. 2006) (upheld that highly disparaging insider statements can be so disloyal as to lose NLRA protection; cautions Board not to ignore disloyalty prong)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (substantial-evidence standard and deference principles in reviewing NLRB fact findings)