DIRECTV, Inc. v. Nat'l Labor Relations Bd.
| Decision Date | 16 September 2016 |
| Docket Number | No. 11–1273,C/w 11–1274, 11–1294,11–1273 |
| Citation | 837 F.3d 25 |
| Parties | DIRECTV, Inc., Petitioner v. National Labor Relations Board, Respondent |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Gavin S. Appleby, Atlanta, GA, argued the cause for petitioner MasTec Advanced Technologies. With him on the briefs was Michelle E. Shivers.
Jonathan C. Fritts, Washington, DC, argued the cause for petitioner DIRECTV, LLC. With him on the briefs were Charles I. Cohen and David R. Broderdorf, Washington, DC.
Douglas E. Callahan, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Julie B. Broido, Supervisory Attorney. Kira D. Vol, Attorney, entered an appearance.
Matthew J. Ginsburg, Andover, MA, argued the cause for amicus curiae American Federation of Labor and Congress of Industrial Organizations in support of respondent. With him on the brief were Lynn K. Rhinehart and James B. Coppess, Washington, DC.
Before: Rogers, Brown and Srinivasan, Circuit Judges.
The National Labor Relations Act protects employees' right to engage in concerted activities. That right encompasses protesting an employer's actions or policies through an appeal to the public for support. But while the Act protects employees' right to engage in such third-party appeals, the Act also recognizes the prerogative of employers to discharge employees “for cause.” Those two principles can come into tension. That can happen, for instance, when employees publicly criticize their company in an attempt to draw support in an ongoing labor dispute, and the company then fires the employees for disloyalty.
The National Labor Relations Board bears responsibility for balancing the right of employees to engage in concerted activity against the right of employers to discharge disloyal workers. Under the Board's approach, an appeal to third parties in connection with an employment-related dispute can qualify as protected concerted activity even if the appeal is disloyal and disparaging of the employer in some measure. But if the employees' appeal rises to the level of flagrant disloyalty, wholly incommensurate with any employment-related grievance, or if the employees make maliciously untrue statements about their employer, their conduct is no longer protected and their employer can discharge them for cause.
In this case, a group of employees, frustrated by a new pay policy at work and unable to make headway in direct discussions with their employer, aired their grievances publicly in an interview with a reporter for a local television news station. The company responded by firing the employees. The Board found that the company's termination of the employees was an unfair labor practice. In the Board's view, the employees' participation in the interview in furtherance of their employment-related grievances was protected concerted activity, and their statements were neither so disloyal nor so maliciously untrue as to fall outside the Act's protection. The Board therefore ordered the employees' reinstatement.
The employer, together with another company involved in the employees' termination, seeks review of the Board's decision. In the companies' view, the employees' statements in the television interview did not fall within the bounds of protected concerted activity because the statements were both maliciously untrue and flagrantly disloyal, wholly out of step with the employees' objections to the pay policy. The question for this court is not where we think the line between protected and unprotected activity should be drawn. Instead, we must determine whether the Board's finding that the employees' third-party appeal falls on the protected side of the line is in accordance with the law and supported by substantial evidence. We answer those questions in the affirmative and thus enforce the Board's order.
This case involves two companies, DirecTV, which sells satellite television services to consumers, and MasTec, one of DirecTV's contractors. DirectTV relies on contractors such as MasTec to install satellite television receivers in subscribers' homes.
The events in question began to unfold in early 2006. At the time, DirecTV wanted each of its television receivers connected to a working (landline) phone line in customers' homes. A phone connection enabled customers to take advantage of certain features such as ordering pay-per-view movies using a remote control (without needing to make a phone call), downloading software upgrades, and viewing phone caller-ID on their television screens. A phone connection also benefitted DirecTV by allowing the company to track customers' viewing habits and thus to make more effective programming decisions.
In furtherance of DirecTV's aim to connect its receivers to a phone line, the company required its contractors to include connecting (and installing if necessary) a phone line as part of the standard receiver installation package, at no additional charge. DirecTV tracked the number of receivers each contractor successfully connected to phone lines.
In January 2006, MasTec's Orlando, Florida, office had the lowest connection rate of any DirecTV contractor nationwide. Concerned with MasTec's poor performance, DirecTV took action: it began charging MasTec $5 for each receiver installed without a connection to a phone line, and it informed MasTec that it would continue to do so as long as MasTec's connection rate remained below 50%. MasTec passed along the monetary incentive to its installation technicians in the form of a new pay policy. First, technicians generally would be paid $2 less for each receiver they installed, but would receive an additional $3.35 if they connected the receiver to a phone line. Second, technicians who connected receivers to phone lines in fewer than half of their installations in a thirty-day period would be “back-charged” $5 for each unconnected receiver.
Although DirecTV wanted its receivers connected to phone lines, a phone connection was unnecessary for a receiver to work: it is undisputed that customers could receive the full range of television programming through a receiver regardless of any connection to a phone line. In the absence of a phone connection, however, DirecTV could not track customers' viewing preferences, and customers could not take advantage of the aforementioned features such as ordering pay-per-view movies through their remote control.
Still, many customers resisted making a phone connection. Some customers relied exclusively on cellular phone service and thus had no landline phone; others sought to maintain privacy by preventing DirecTV from knowing about their viewing preferences; and others wished to avoid giving their children ready access to pay-per-view movies. In addition, some customers disliked the sight of a phone cord running along the wall or across a room to connect the receiver to a phone line. For those customers, MasTec offered two premium installation options, under which, for an additional charge of roughly $50, there would be no visible cord.
Whatever the customers' reasons for resisting a phone connection, MasTec technicians—as evidenced by their low connection rate—struggled to connect receivers to phone lines. Perhaps unsurprisingly, then, the technicians strongly disfavored MasTec's new pay policy. In meetings with management, technicians complained about the fairness of the policy and the effect on their compensation.
Both MasTec and DirecTV responded to the technicians' concerns with advice for connecting more receivers. Some of the advice consisted of run-of-the-mill sales tactics such as persuading customers of the benefits of a phone connection. Some of the advice plainly was not meant to be taken literally, such as when a MasTec manager jokingly told technicians they should tell customers the DirecTV system would “blow up” without a phone connection.
But some of the advice was understood by technicians to suggest that they mislead or lie to customers about the necessity of a phone connection to receive television programming. For instance, the same MasTec manager who joked that technicians should tell customers the system would “blow up” without a phone connection also said that technicians should tell customers “whatever you have to tell them” and “whatever it takes” to gain approval to connect a phone line. MasTec supervisors also instructed technicians simply to connect a phone line without notifying customers. At least one supervisor said that technicians should advise customers that a receiver would not work without a phone connection. MasTec also showed technicians a video in which two DirecTV officials recommended telling customers that the phone line was a “mandatory part of the installation” and was “need[ed] ... for the equipment to function correctly.” See MasTec Advanced Techs. , 357 NLRB 103, 104 (2011) ; ALJ Op. 7–9 (J.A. 7–9); Training Video Tr. 2 (J.A. 431). The officials further suggested that technicians connect a phone line without telling the customer they were doing so.
In the face of that advice, technicians continued to voice their concerns and frustration. MasTec refused to change the pay policy. And neither company rescinded or modified its advice that technicians should do “whatever it takes” to make phone connections.
When the technicians received their first paychecks under the new pay policy, they revolted. They protested in the MasTec parking lot for two days, demanding more transparency and an end to the policy. In response, MasTec management offered to review the data affecting pay and to help technicians keep track of their connection rate during the month. But MasTec still refused to change the policy.
Getting nowhere with protests and direct talks with their employer, a group...
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