NLRB Finds Employer Acted Unlawfully When It Terminated Employees Who Disparaged Employer During Newscast

As we previously reported here and here, in May, the National Labor Relations Board filed complaints against at least two employers alleging the employers violated the National Labor Relations Act ("NLRA") by disciplining employees on account of disparaging statements the employees posted on Facebook statements criticizing their employers. In one of those cases, the employer terminated an employee for posting on his Facebook page photographs and comments criticizing the dealership for serving only hot dogs and water to customers at a dealership sales event promoting a new model. Salespersons complained that serving only hot dogs and water could negatively impact their sales commissions. The NLRB alleges in both both of the cases that the employees statements posted on Facebook are protected concerted activity within the meaning of Section 7 of the NLRA because the statements involved a discussion among employees about their terms and conditions of their employment.

Consistent with the enforcement policy it adopted in the two cases the NLRB brought in May involving Facebook postings, on July 21, in MasTec Advanced Technologies, a division of Mas-Tech, Inc. and Joseph Guest and Direct TV, Inc. and Joseph Guest, Cases 12-CA-24979 and 12-CA-25055, the NLRB ruled that MasTec violated the NLRA when it terminated employees who appeared on a television newscast wearing their uniforms and made disparaging statements about MasTec. The NLRB ruled that employees who make disparaging statements about their employer are engaging in protected activity when the statements are related to a work-dispute and the statements are not disloyal, reckless or maliciously untrue.

According to the NLRB's decision: MasTec installs and maintains satellite television equipment for DirecTV. MasTec service technicians were encouraged to persuade customers to permit the DirectTV satellite receivers to be connected to the customers' telephone line, which provides customers additional features and provides DirectTV with a record of what customers are viewing, which assists DirecTV in making programming decisions. Many customers resist having the connection completed for various reasons. 

In 2006, DirecTV reportedly informed MasTec that MasTec would be penalized if MasTec did not  increase the percentage of telephone line connections. In turn, MasTec reportedly informed its service technicians they would be back-charged $5 for every non-phone-line-connected receiver installed if they failed to achieve a telephone line connection rate of at least 50 percent. The service technicians voiced opposition to the new policy at several employee meetings.  MasTec supervisors reportedly suggested ways around customers’ reluctance to agree to connected receivers, with one manager reportedly telling them to do “whatever you have to tell them” and “whatever it takes” to make the connection. 

After a number of service technicians were reportedly back charged in accordance with the new policy, one of the service technicians contacted a local television station, and a group of service technicians drove from the MasTec facility to the television station in their company vans. A reporter met with the workers and interviewed them on film as a group.  The station broadcast a story concerning the technicians, in which the technicians recounted MasTec’s new policy and what their supervisors reportedly told them to tell customers to persuade customers to connect their DirectTV receivers to their telephone lines, insinuating they were asked to lie to customers.

After the story aired, MasTec terminated the employees who appeared on the broadcast. 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 MasTec did not violate the NLRA when it terminated the employees. The employees appealed the decision to the NLRB Panel in Washington, D.C.

The NLRB Panel began its analysis by citing Section 7 of the Act, 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.” Based on this standard, the NLRB Panel stated that it has held that the mere fact that statements are false, misleading or inaccurate is insufficient to demonstrate that they are maliciously untrue.  Under this standard the NLRB Panel found that none of the technicians’ statements made during the newscast were 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.”

These recent actions by the NLRB provide two important takeaways for employers:

First, the NLRA's reach is not confined to unionized workplaces. When communications by non-unionized employees are related to a work dispute, the communications may still qualify as protected activity under the NLRA even if the communications are false, misleading, inaccurate, or highly objectionable to management.

Second, these recent actions may signal a more aggressive enforcement posture by the NLRB, particularly given the rise of various forms of social media, such as Facebook and Twitter.

As we previously observed, employers should be aware that both the NLRA and the California Labor Code generally prohibit discipline of or discrimination against employees for disclosing to others the amount of their wages or information about the employees' working conditions. In light of those prohibitions and in light of the recent enforcement activity by the NLRB, employers should consult with experienced employment and labor law counsel when considering discipline of employees on  account of  communications related to or potentially related to employees' wages, hours, and/or working conditions.

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