## Facts

- MasTec Advanced Technologies (Advanced), a division of MasTec, Inc., provided satellite television installation services for DirecTV, Inc.
- Advanced adopted a new compensation rule that reduced (“docked”) technicians’ pay when they failed to persuade customers to connect the installed DirecTV receiver to a telephone line (or otherwise purchase the related hookup/service).
- Technicians objected to the pay-docking rule in multiple meetings with management, arguing it was unfair and created pressure to use objectionable sales methods.
- After those internal objections did not resolve the dispute, a group of 26 technicians appeared together on a local television news broadcast to discuss the conflict.
- During the broadcast, the technicians discussed the pay-docking rule and described sales pressure associated with it, including that they were essentially told to mislead customers to secure additional sales.
- Following the broadcast, Advanced discharged technicians based on their participation in the televised interview.
- The discharged technicians filed unfair labor practice charges, alleging they were terminated for engaging in protected concerted activity under NLRA § 7, in violation of NLRA §§ 8(a)(1) and 8(a)(3).
- An administrative law judge concluded the television appearance was unprotected because it was disloyal disparagement; the NLRB General Counsel filed exceptions challenging that conclusion.

## Issues

1. Whether technicians’ joint appearance on a television news broadcast addressing a pay-docking policy and related sales pressure was protected concerted activity under NLRA § 7.
2. Whether the technicians lost NLRA protection under *Jefferson Standard* because their public statements were allegedly disloyal or damaging to Advanced and/or DirecTV.
3. Whether the technicians’ statements were “maliciously untrue” such that the Act did not protect them.
4. Whether Advanced’s discharges based on the broadcast violated NLRA §§ 8(a)(1) and 8(a)(3).

## Decision

- The Board reversed the ALJ’s conclusion that the television appearance was unprotected.
- The Board held the technicians acted concertedly and addressed an ongoing dispute over wages and working conditions, bringing their conduct within NLRA § 7.
- Applying *Jefferson Standard*, the Board found the broadcast was not so “flagrantly disloyal” or so disconnected from the labor dispute as to forfeit protection.
- The Board found the record did not show the technicians made statements that were “maliciously untrue.”
- The Board concluded Advanced unlawfully discharged employees for engaging in protected concerted activity, violating NLRA §§ 8(a)(1) and 8(a)(3).
- The Board ordered make-whole relief, including reinstatement offers and backpay, along with related remedial measures (such as notice posting and expungement of discharge references).

## Legal Principles

- NLRA § 7 protects employees who act together to address wages and other terms and conditions of employment, including by seeking support outside the workplace when the communication relates to an employment dispute.
- Public statements about an employer can remain protected even if they are unfavorable, as long as they are tied to a labor-related controversy and are not taken to a level of “flagrant disloyalty” that is wholly out of line with the dispute.
- Under *Jefferson Standard*, employees may lose protection if their public attack is disconnected from any labor dispute or if they communicate “maliciously untrue” statements.
- Discharging employees because they engaged in protected concerted activity violates NLRA § 8(a)(1), and discharging them to discourage such activity violates NLRA § 8(a)(3).
- When unlawful discharges are found, the Board may order reinstatement, backpay, and other remedies designed to restore the status quo and prevent repetition of the unlawful conduct.

## Conclusion

In *MasTec Advanced Technologies, 357 NLRB 103 (2011)*, the NLRB held that technicians who collectively appeared on a local TV broadcast to discuss a pay-docking policy and related sales pressure engaged in protected concerted activity, that their statements did not amount to *Jefferson Standard* disloyalty or malicious falsity, and that terminating them for participating in the broadcast violated NLRA §§ 8(a)(1) and 8(a)(3), warranting make-whole relief.
