Employees’ TV Interview Is Protected Speech

By William D. Deveney November 3, 2016
Employees’ TV Interview Is Protected Speech

A contractor's employees, who were discharged after disparaging their employer's new pay policy in a television interview, were victims of an unlawful labor practice, according to the U.S. Circuit Court of Appeals for the District of Columbia.

MasTec, headquartered in Coral Gables, Fla., had the lowest connection rate of any DirecTV contractor nationwide. In response, MasTec adopted a new pay policy with financial incentives designed to drive its technicians to increase their connection rates.

Soon after the adoption of the new policy, the technicians complained to management about the fairness of the policy and its effect on their pay.

DirecTV, headquarted in El Segundo, Calif., sells satellite television services and relies on contractors to install satellite television receivers in subscribers' homes. In early 2006, DirecTV wanted each of its television receivers connected to a working phone landline in their subscribers' homes.

MasTec responded to the technicians' complaints with additional training on connecting more receivers. However, some of the training was understood by the technicians to suggest that they should mislead customers about the necessity of a phone connection. The technicians continued to voice their frustration and demanded an end to the policy, but MasTec refused to change it.

A group of MasTec technicians then contacted a local television news station. Arriving at the station in DirecTV vans and wearing DirecTV uniforms, the technicians were interviewed as a group. The resulting interview segment addressed their grievances concerning the pay policy and their belief that they were being told to lie to customers.

The segment also conveyed the reporters' understanding that the emphasis on a phone connection could ultimately result in additional charges to customers. After the segment aired, DirecTV told MasTec that it did not want the technicians in the interview representing DirecTV in customers' homes. MasTec then fired nearly all of the technicians who participated in the interview, including those who did not speak on air.

The terminated employees filed unfair labor practice charges with the National Labor Relations Board (NLRB), claiming that their discharges violated the National Labor Relations Act (NLRA). Although DirecTV and MasTec initially prevailed before an administrative law judge, the board disagreed and found against the companies. The companies appealed to the D.C. Circuit, which enforced the board's decision.

[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]

An employee's communication to third parties in an effort to obtain their support in a labor dispute is protected when the communication indicates it is related to an ongoing dispute involving the terms and conditions of employment and it is not "so disloyal, reckless, or maliciously untrue" as to lose the protections afforded under the NLRA. The companies did not dispute that the television interview related to the ongoing labor dispute regarding pay. Therefore, the D.C. Circuit addressed only the second prong of the test.

Although the NLRA protects the rights of employees to engage in third-party appeals, an employer retains some latitude to discharge employees for cause, including disloyalty. But third-party appeals can still constitute protected activity even if they are indisputably disloyal. As the D.C. Circuit explained, an employee's participation in efforts to obtain third-party support crosses the line from protected to unprotected disloyalty when it becomes "flagrantly disloyal, wholly incommensurate with any grievances which [the employees] might have."

Here, the D.C. Circuit found that, although the newscast had "shed unwelcome light" on the companies' business practices, the segment "directly related" to the technicians' grievances regarding the policy, which they believed forced them to mislead customers. As such, the comments were not so disloyal as to lose protection under the NLRA.

DirecTV, Inc. v. NLRB, D.C. Cir., No. 11-1273, consolidated with Nos. 11-1274, 11-1294 (Sept. 16, 2016).

Professional Pointer: When employees speak out on working conditions, they may be protected from adverse employment actions. Before acting on employee appeals to third parties, consider whether that appeal involves an ongoing issue relating to the terms and conditions of employment and, if so, whether the appeal is so flagrantly disloyal as to cause actual harm to the company or is merely uncomfortable and, thus, protected.

William D. Deveney is an attorney with Elarbee, Thompson, Sapp & Wilson LLP, the Worklaw® Network member firm in Atlanta.

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