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Negative Comments About an Employer May Still Be Protected

BY Mark N. Reinharz
October 24, 2011

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.

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