Publications: Labor board reinstates cable service technicians

Once again, the Obama-appointed National Labor Relations Board (NLRB) has proven that it will go to whatever extremes necessary to vilify employers and ʺvindicateʺ the so-called ʺrightsʺ of employees, no matter how disloyal those employees are to their employers. Using the old doctrine of ʺprotected concerted activity,ʺ the board on July 21 of this year overruled its own administrative law judge (ALJ) and reinstated with back pay and benefits 26 Orlando, Fla., cable service technicians who were fired for badmouthing their employer in a television newscast. MasTec Advanced Techs , 357 NLRB No. 17. This latest outrage surely will heighten the congressional scrutiny on a supposedly independent agency already coming under withering attack for its controversial decisions to prosecute Chicago-based Boeing for locating new plane assembly work in right-to-work South Carolina (see the Labor Daze column from May 9) and promulgating union election rules designed to help unions organize companies more successfully (see the Labor Daze column from July 11).

MasTec is a home service provider for DirecTV. MasTecʹs service technicians install satellite television units in the homes of DirecTV customers.

DirecTV wanted its customers to have satellite receivers connected to the customersʹ telephone land lines. This setup allowed DirecTV to determine what the customers were watching, although it was not necessary for actually operating the televisions. The satellite connections added no additional cost to the customers.

A lot of Orlando customers balked at the idea of a satellite hookup to their phones. In 2006, DirecTV informed MasTec that if the MasTec technicians did not connect at least half of all new customers to phone lines, DirecTV would charge MasTec $5 for each customer not connected. MasTec responded by subjecting its technicians to a $5 charge back for every recalcitrant customer during a 30-day period if the technicians failed to achieve a 50 percent rate of telephone connections.

As part of the program, MasTec screened for the technicians a DirecTV video in which an executive stated that the technicians might fail to tell the customers about the telephone hookup or tell the customers that the connection was ʺmandatoryʺ and required for the television to function. One MasTec executive told the technicians to do ʺwhatever it takesʺ to make the telephone connections.

Unsurprisingly, the technicians did not care for the $5 charge back. They complained repeatedly to MasTec management to no avail.

So 26 of them, dressed in their DirecTV uniforms, marched down to a local television station for a ʺgroup interviewʺ by a local reporter. During the interview, technicians spoke about the $5 charge back, but also claimed that they had been urged to tell ʺliesʺ to the DirecTV customers to induce them to order the telephone connection. In a ʺteaser,ʺ the television station showed prior to the story airing, the reporter asked, ʺSo youʹve basically been told to lie to customersʺ and the interviewed technician responded, ʺyeah.ʺ

After seeing the news story, DirecTV told MasTec that it did not want any further work performed by technicians who appeared on air. MasTec then fired the 26 technicians.

One of the technicians filed an unfair labor practice charge and the NLRBʹs general counsel issued a complaint alleging that both MasTec and DirecTV had fired the technicians for engaging in protected concerted activities. Employees who complain about wages, hours and terms and conditions of employment as a group or on behalf of other employees are protected under the National Labor Relations Act (NLRA).

An NLRB administrative law judge heard the case. He ruled that although the techniciansʹ statements related to a labor dispute they were false, inaccurate and misleading. Specifically, the ALJ ruled that the news broadcast focused on the story line that the lies the technicians supposedly were
forced to tell cost consumers money, which clearly was untrue, because the telephone connections cost consumers nothing. The ALJ also scored the technicians for claiming that they were told to lie, when in fact neither DirecTV nor MasTec actually told them to lie and offered the technicians various alternatives for securing the telephone connections without having to lie. The techniciansʹ attitude in the broadcast, the ALJ wrote, was ʺflagrantly disloyal, wholly incommensurate with any grievances they had and manifested by public disparagement of the respondentsʹ product and undermining of their reputation.ʺ As a result, according to the ALJ, the technicians lost the NLRAʹs protection and their firings were lawful.

A three-member NLRB panel reversed. According to the boardʹs opinion, the ALJ ʺclearly erred in finding that the employee communications and/or participation in the Channel 6 newscast were either maliciously untrue or so disloyal and reckless as to warrant removal of the actʹs protection.ʺ In the boardʹs view, whether MasTec or DirecTV officials actually told the technicians to ʺlieʺ was ʺimmaterial,ʺ despite the fact that that is exactly what the technicians accused the companies, on air, of doing. It was enough to retain the actʹs protections that the companies suggested to the technicians that they suggest to potential customers, falsely, that their satellite receivers would not work unless connected to a land line telephone.

The board panel, remarkably but not surprisingly, downplayed the deleterious effect the techniciansʹ broadcasted statements had on DirecTVʹs and MasTecʹs businesses. ʺWhile the technicians may have been aware that some consumers might cancel the respondentsʹ services after listening to the newscast, there is noevidence that they intended to inflict such harm on the respondents, or that they acted recklessly without regard for the financial consequences to the respondentsʹ business,ʺ stated the opinion. Really? The technicians did not go on TV to hurt DirecTVʹs business? This passage, more than any other, illustrates clearly a board that, atbest, is selfdeluded.

The board thus ruled that the technicians had engaged in protected concerted activity by going on television; that MasTec violated the law by firing them for doing so; and that DirecTV broke the law by causing the firings. The remedy: MasTec was ordered to offer the technicians reinstatement and both MasTec and DirecTV were found liable, jointly and severally, for a make whole remedy, including back pay and benefits for the technicians.

An appeal to a federal appellate court is expected.

Reprinted with permission from Chicago Daily Law Bulletin.