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Employer Cannot Lawfully Terminate Employees Who Made Negative Public Statements About the Company


On October 2, the United States Supreme Court denied certioriari in MasTec Advanced Technologies v. National Labor Relations Board.  That case centered on two main questions:  

  1. Can an employer terminate an employee for his/her disloyalty when that employee makes disparaging and disloyal public statements about the employer's only customer?; and
  2. In such cases, is the employee's disloyalty measured under an objective or subjective standard?

Facts:  Many MasTec technicians were involved in a pay dispute with their employer in regard to a new pay policy that had been implemented.  A group of these technicians decided to talk with a local television station about the matter and did interviews in which they claimed their employer instructed them to lie about services provided so additional amounts could be charged to customers.  After MasTec learned that its employees had made disparaging, disloyal, and allegedly untruthful public statements on television about its only customer at its Orlando location, the statements were investigated and these employees were subsequently terminated.  

The employees filed unfair labor practice charges with the National Labor Relations Board.  After an administrative law judge ("ALJ") held a hearing, he issued a decision and determined that the employees' statements were so "disloyal, reckless, and maliciously untrue" that they lost the protections of the National Labor Relations Act ("NLRA").  Consequently, the ALJ held that MasTec's termination of these employees did not violate the NLRA.  

The Lower Court:  The NLRB disagreed and reversed the decision. The D.C. Circuit Court of Appeals affirmed the decision of the NLRB on the grounds that the employees' statements were neither maliciously untrue nor so "disloyal" or "reckless" as to lose the protection of the NLRA.

Application of the Law:  Generally speaking, as far back as 1953, it has been held that the NLRA "safeguard[s]" employees' rights to engage in concerted activity for their "mutual aid or protection."  However, the NLRA does not prevent employers from terminating employees for disloyal conduct "separable" from concerted activities.  Third party appeals by employees (which is what happened in this case) are protected under the NLRA where they 1) indicate that they are "related to an ongoing dispute between the employees and the employers; and 2) are not "so disloyal, reckless or maliciously untrue as to lose the {NLRA's} protection."  As evidenced in the record, the employees' statements were found to be "clearly related to their pay dispute" with MasTec.  As well, it was found that prior to the employees speaking out on television, they had unsuccessfully attempted to resolve their pay disputes directly with their employer.  In addition, the employees' statements were not found to be maliciously untrue as they were "accurate representations of what [petitioner and DirecTV] had instructed the technicians to tell customers."

The Next Step:  By the Supreme Court denying certioriari, readers might wonder what that means, what happens next, etc.  In short, MasTec appealed the D.C. Circuit's ruling to the only place left to appeal...the United States Supreme Court.  Just because a party files a petition for a writ of certiorari (the appeal) with the Supreme Court, that does not mean the matter will be heard.  The Supreme Court gets flooded with petitions every term and only picks a handful to actually hear.  There is no requirement as to what cases the Supreme Court "has" to hear.  (In fact, if the Court so chose, it could decide to only hear cases dealing with non-compete agreements for the entirety of any given term and refuse to hear all others.)  In this instance, because the Supreme Court denied certiorari, the ruling from the lower court remains in effect.   As a result, per the D.C. Circuit Court of Appeals' decision, MasTec violated the NLRA by unlawfully terminating the employees who made the statements on television about the company.

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