Negative Comments About an Employer May Still Be Protected

Not surprisingly the service technicians did not react positively to the changes in their compensation. Efforts to convince MasTec executives of the “unfairness” of the plan were unavailing. As a result, the service technicians arranged an interview with a local television news station about the issue. The interviews which were broadcast several times on the local news, included statements from the employees that they were told to “lie” to customers about the need for a hook-up of the phone to the satellite receiver. Employees also stated that they were told to “tell the customer whatever you have to tell them. Tell them if these phone lines are not connected the receiver will blow up.”

After learning of the service technicians' public comments, DirecTV instructed MasTec that it would not allow any of these individuals to perform installation work for DirecTV. Accordingly, 26 technicians were fired by MasTec.

The Initial Ruling

Initially, an NLRB Administrative Law Judge held that firing the employees was not unlawful. The ALJ concluded that although the statements were made in relation to a labor dispute, they were not protected by the Act because they were “so disloyal, reckless and maliciously untrue as to lose the Act's protection.” While only two employees in the group had made the comments, the ALJ concluded that all of the employees were present when the comments were made, indicating their tacit approval of the comments.

The NLRB, however, reversed the ALJ's decision and held that the terminations were illegal because all of the employees had engaged in protected concerted activity. The Board noted that “Section 7 of the Act provides, in part, that '[e]mployees shall have the right … to engage in … concerted activities for the purpose of … mutual aid or protection.'” An employer that disciplines an employee who engages in protected concerted activity violates the NLRA.

The Act's Protections

But the Act's protections are not absolute. Both the Board and U.S. Supreme Court have previously recognized that statements made that are disloyal, reckless or maliciously untrue are unprotected. However, statements that are simply false, misleading, or inaccurate will not lose the Act's protection.

In the MasTec case, the Board found that the statements made by the employees to the television reporters did not meet the definition of disloyal, reckless or maliciously untrue. Rather, as the Board noted, the employees' statements were accurate representations of what they had been told. The Board found that the employees had been told to lie. For example, one manager had told employees to tell customers that if the phone was not hooked-up to the receiver, the receiver might not work. Other managers told the technicians to advise customers that the phone hook-up was a mandatory part of the installation. Even while recognizing the manager's comments (i.e., that the unconnected receiver might “blow up”) was a joke, the Board found that the statement had nonetheless been made and therefore the employees' reporting of the statement was truthful. In sum, the Board concluded:

Almost all of the statements made by the technicians during the Channel 6 newscast were truthful representations of what the Respondents told them to do. Any arguable departures from the truth were no more than good-faith misstatements or incomplete statements, not malicious falsehoods justifying removal of the Act's protection.

357 NLRB No. 17 at p. 6.

As a result of the Board's decision, MasTec was required to reinstate all of the terminated employees and provide them with back pay over a five-year period. The total award will likely be several million dollars.

Analysis

MasTec should be a wake-up call for all employers. All employees, whether union or non-union, have the right to engage in protected concerted activity. Indeed, the service technicians in MasTec were not covered by any collective bargaining agreement or represented by a union. Nonetheless, they had a right to discuss their working conditions (i.e., engage in protected concerted activity), without being subject to discipline.

Second, even when employees make negative comments about their employers in the process of discussing working conditions, their activities may still be protected. Only if the statements are disloyal, reckless or maliciously untrue will they lose the Act's protections. Determining when a statement is simply false or maliciously untrue will often be difficult.

Third, MasTec underscores the Board's recent commitment to enforce the Section 7 rights of employees strongly. The Board recently issued a complaint against an employer after it had fired an employee for a Facebook posting that included derogatory comments about a supervisor. Although the case was settled before a final adjudication was reached, the Board's position demonstrates its commitment to an expansive definition of “protected concerted activity.” While not every posting or comment will be protected concerted activity, any comments involving two or more employees about working conditions will likely fall within the framework of protected conduct.

As a result of the Board's action in this area of employee conduct, employers need to develop policies that are consistent with the Act's protection of concerted activity, but also protect their business interests. This may be a difficult balancing act, but it is nonetheless one that must be pursued.

Mark N. Reinharz, a member of this newsletter's Board of Editors, is a partner in the Garden City, NY, office of Bond, Schoeneck & King, PLLC and represents management in all areas of labor and employment law.

The National Labor Relations Board (NLRB or “the Board”) issued a decision on July 21, 2011 that, at the very least, will cause employers to pause before disciplining employees who publicly criticize them and/or their products. In MasTec Advanced Technologies, 357 NLRB No. 17 (2011), the NLRB found that the criticism expressed by employees was concerted activity and thus protected activity under the National Labor Relations Act (the “Act” or NLRA). Consequently, the employer's termination of the employees was deemed unlawful.

Background

MasTec Advanced Technologies, Inc. (“MasTec”) installs and maintains satellite television equipment for DirecTV. MasTec service technicians were encouraged by their supervisors to persuade customers to permit the DirecTV satellite receivers to be connected to the customers' land line telephones. This service provides customers with additional features and DirecTV with a record of what customers are viewing, which assists DirecTV in making programming decisions. There was, however, no requirement that this connection be established. Many customers resisted having the connection completed for various reasons. As a result, in early 2006, DirecTV informed MasTec that if it did not obtain a 50% installation rate of receivers to telephones, it would charge MasTec $5.00 for each non-installation. In turn, MasTec informed their service technicians that they would suffer deductions if they failed to obtain connections of at least 50% to their phone lines. The technicians who consistently failed in this endeavor would be subject to termination.

Not surprisingly the service technicians did not react positively to the changes in their compensation. Efforts to convince MasTec executives of the “unfairness” of the plan were unavailing. As a result, the service technicians arranged an interview with a local television news station about the issue. The interviews which were broadcast several times on the local news, included statements from the employees that they were told to “lie” to customers about the need for a hook-up of the phone to the satellite receiver. Employees also stated that they were told to “tell the customer whatever you have to tell them. Tell them if these phone lines are not connected the receiver will blow up.”

After learning of the service technicians' public comments, DirecTV instructed MasTec that it would not allow any of these individuals to perform installation work for DirecTV. Accordingly, 26 technicians were fired by MasTec.

The Initial Ruling

Initially, an NLRB Administrative Law Judge held that firing the employees was not unlawful. The ALJ concluded that although the statements were made in relation to a labor dispute, they were not protected by the Act because they were “so disloyal, reckless and maliciously untrue as to lose the Act's protection.” While only two employees in the group had made the comments, the ALJ concluded that all of the employees were present when the comments were made, indicating their tacit approval of the comments.

The NLRB, however, reversed the ALJ's decision and held that the terminations were illegal because all of the employees had engaged in protected concerted activity. The Board noted that “Section 7 of the Act provides, in part, that '[e]mployees shall have the right … to engage in … concerted activities for the purpose of … mutual aid or protection.'” An employer that disciplines an employee who engages in protected concerted activity violates the NLRA.

The Act's Protections

But the Act's protections are not absolute. Both the Board and U.S. Supreme Court have previously recognized that statements made that are disloyal, reckless or maliciously untrue are unprotected. However, statements that are simply false, misleading, or inaccurate will not lose the Act's protection.

In the MasTec case, the Board found that the statements made by the employees to the television reporters did not meet the definition of disloyal, reckless or maliciously untrue. Rather, as the Board noted, the employees' statements were accurate representations of what they had been told. The Board found that the employees had been told to lie. For example, one manager had told employees to tell customers that if the phone was not hooked-up to the receiver, the receiver might not work. Other managers told the technicians to advise customers that the phone hook-up was a mandatory part of the installation. Even while recognizing the manager's comments (i.e., that the unconnected receiver might “blow up”) was a joke, the Board found that the statement had nonetheless been made and therefore the employees' reporting of the statement was truthful. In sum, the Board concluded:

Almost all of the statements made by the technicians during the Channel 6 newscast were truthful representations of what the Respondents told them to do. Any arguable departures from the truth were no more than good-faith misstatements or incomplete statements, not malicious falsehoods justifying removal of the Act's protection.

357 NLRB No. 17 at p. 6.

As a result of the Board's decision, MasTec was required to reinstate all of the terminated employees and provide them with back pay over a five-year period. The total award will likely be several million dollars.

Analysis

MasTec should be a wake-up call for all employers. All employees, whether union or non-union, have the right to engage in protected concerted activity. Indeed, the service technicians in MasTec were not covered by any collective bargaining agreement or represented by a union. Nonetheless, they had a right to discuss their working conditions (i.e., engage in protected concerted activity), without being subject to discipline.

Second, even when employees make negative comments about their employers in the process of discussing working conditions, their activities may still be protected. Only if the statements are disloyal, reckless or maliciously untrue will they lose the Act's protections. Determining when a statement is simply false or maliciously untrue will often be difficult.

Third, MasTec underscores the Board's recent commitment to enforce the Section 7 rights of employees strongly. The Board recently issued a complaint against an employer after it had fired an employee for a Facebook posting that included derogatory comments about a supervisor. Although the case was settled before a final adjudication was reached, the Board's position demonstrates its commitment to an expansive definition of “protected concerted activity.” While not every posting or comment will be protected concerted activity, any comments involving two or more employees about working conditions will likely fall within the framework of protected conduct.

As a result of the Board's action in this area of employee conduct, employers need to develop policies that are consistent with the Act's protection of concerted activity, but also protect their business interests. This may be a difficult balancing act, but it is nonetheless one that must be pursued.

Mark N. Reinharz, a member of this newsletter's Board of Editors, is a partner in the Garden City, NY, office of Bond, Schoeneck & King, PLLC and represents management in all areas of labor and employment law.