Most employers are aware that the National Labor Relations Act (“NLRA”) gives employees the right to engage in certain protected activity, which may include airing complaints about their work or pay outside of the workplace to third-parties. But the right to air those complaints to others is not unconditional; employees can be disciplined for “flagrant disloyalty” or making “maliciously untrue” statements about their employer. Where is the line between a protected statement about work or pay and a “flagrantly disloyal” act or “maliciously untrue” statement? As any labor attorney worth his/her salt will tell you: it depends. The already muddy waters surrounding this issue just got murkier after the decision of the Court of Appeals for the District of Columbia in DirecTV v. National Labor Relations Board, Case No. 11-1273 (September 16, 2016).
As with most labor disputes, the case has a long history. DirecTV contracted with MasTec to install satellite television receivers in subscribers’ homes. DirecTV desired to have as many subscribers as possible connect those receivers to a working telephone line (a “landline”) that would allow subscribers to access certain features offered by DirecTV and to allow DirecTV to monitor subscriber viewing habits. To further its goal, DirecTV paid MasTec five dollars less for each satellite installation without a connection to a landline. MasTec, in turn, encouraged its installers to “do whatever it took” to “sell” subscribers a landline connection during installation by paying installers less for installations of receivers without landlines, and more for installations with landlines. Despite the incentives, many subscribers still declined to have a landline, and the installers’ pay suffered accordingly. The first round of paychecks issued after MasTec’s new pay policy was implemented resulted in a protest by installers in MasTec’s parking lot. While both DirecTV and MasTec discussed the issue with installers, neither was willing to change their reimbursement or pay policies. Frustrated, the installers contacted a local television station, who ran a story featuring installers who claimed that DirecTV and MasTec were directing them to sell unnecessary landlines and to lie to subscribers about the need for landlines. When MasTec informed DirecTV about the story, DirecTV informed MasTec it did not want the installers featured in the story to continue installing DirecTV receivers in customer homes. The installers who participated in the news story were thereafter fired for making false and disloyal statements.
The installers filed an unfair labor practice charge with the National Labor Relations Board (“Board”), claiming their prior protests, discussion with MasTec and DirecTV, and participation in the news story were protected concerted activity under Section 7 of the NLRA. The Board’s administrative law judge dismissed the charge, concluding the installers’ media statements were “so disloyal, disparaging and malicious” that they fell outside of the scope of protected activity. On appeal, the Board disagreed, finding that the technicians’ comments were clearly related to their underlying grievance about pay and that the installers’ televised comments were not so disloyal or “maliciously untrue” as to fall beyond the bounds of protected Section 7 activity. In making the latter determination, the Board considered the subjective intent of the employees – all of whom claimed they intended no harm to MasTec when they participated in the story. The Board thus ordered MasTec to reinstate the employees.
DirecTV and MasTec appealed the case to the Court of Appeals for the District of Columbia Circuit, arguing in part that the “intent” of the installers was irrelevant to a determination of whether their conduct was disloyal. In a divided decision, the D.C. Circuit upheld the Board’s conclusion and found that the Board was permitted to consider the subjective intent of the employee when deciding whether the employee’s action was so disloyal that it lost the NLRA’s protection. One judge dissented, arguing that the “intent” factor was a new invention that contradicted Supreme Court precedent which required courts to weigh evenly the interests of employers and employees when evaluating statements to third parties.
Why does any of this matter? The Board’s decision in DirecTV makes an employer’s already challenging decision about what is or is not “protected” employee activity even harder to make. Under the Board’s prior decisions, whether an employee’s conduct was disloyal was generally judged by an “objective” standard. In other words, if a reasonable person would believe the employee’s conduct clearly was disloyal, it would not be protected by the NLRA. Although that determination was always difficult – the Board’s view of what a “reasonable” person would see as disloyal frequently differed from the employer’s view – at least the focus of the inquiry was clear. After DirecTV, the employer now must attempt to weigh the employee’s intent in carrying-out the potentially disloyal act.
It is no secret that the Board has been pursuing an increasingly aggressive agenda in recent years. Many view the Board’s “intent” inquiry as simply another way of protecting employees at the expense of legitimate business considerations of an employer. The Board’s DirecTV decision gives employees a roadmap to avoid termination for what might otherwise be unprotected activity. Employees need only claim that – no matter how damaging their statements to third-parties about their employer might be to the employer’s business or reputation – they never intended any harm to their employer. The Board predictably will “weigh” this new factor in the employees’ favor, find the activity “protected” and prohibit any discipline, leaving employers forced to continue to employ individuals who publicly have bad-mouthed them.
It is unclear whether this decision will be appealed to the U.S. Supreme Court, and even less clear whether the current court of eight Justices would take it. In the meantime, employers seeking to discipline employees for false or disloyal statements to third-parties should tread very carefully and seek counsel.
If you have a question, the St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.