DirecTV, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2015 Decided September 16, 2016

No. 11-1273

DIRECTV, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 11-1274, 11-1294

On Petitions for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

Gavin S. Appleby argued the cause for petitioner MasTec

Advanced Technologies. With him on the briefs was

Michelle E. Shivers.

Jonathan C. Fritts argued the cause for petitioner

DIRECTV, LLC. With him on the briefs were Charles I.

Cohen and David R. Broderdorf.

Douglas E. Callahan, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

2

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 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.

Before: ROGERS, BROWN and SRINIVASAN, Circuit

Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

Dissenting opinion filed by Circuit Judge BROWN.

SRINIVASAN, Circuit Judge: 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

3

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

4

substantial evidence. We answer those questions in the

affirmative and thus enforce the Board’s order.

I.

A.

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,

5

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.

6

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

7

(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 of MasTec technicians contacted a local

television news station, which agreed to air a story. The

technicians arrived at the station in their DirecTV vans and

wearing DirecTV uniforms. A reporter from the station

interviewed the technicians as a group. The station showed

the resulting interview segment several times on the local

news.

The segment addressed the technicians’ grievances

concerning the pay policy and their belief that they were

being told to lie to customers; it also conveyed the reporter’s

understanding that the emphasis on a phone connection could

ultimately cost customers money (in the form of the

additional charge for a premium installation under which

there would be no visible phone cord). The news story

proceeded as follows (and, as edited by the news station,

8

contained statements from four technicians, reproduced in

italics for demarcation).

News Anchor: Yeah . . . technicians who

have installed hundreds of DirecTV satellite

systems across Central Florida . . . they’re

talking about a company policy that charges

you for something you may not ever use.

And as problem solver Nancy Alvarez

found, if you don’t pay for it, the workers

do.

Reporter Alvarez: They arrived at our Local

6 studios in droves. DirecTV trucks packed

the parking lot and inside the technicians

spoke their minds. (Accompanying video

showed more than 16 DirecTV vans in the

parking lot followed by a shot panning a

group of technicians wearing shirts bearing

the DirecTV logo.)

(The scene shifts to a room where more than

20 technicians were seated, facing Alvarez.)

Technician Lee Selby: We’re just asking to

be treated fairly.

Alvarez: These men have installed hundreds

of DirecTV systems in homes across Central

Florida but now they admit they’ve lied to

customers along the way.

Technician Hugh Fowler: If we don’t lie to

the customers, we get back charged for it.

And you can’t make money.

9

Alvarez: We’ll explain the lies later but first

the truth. Phone lines are not necessary for a

DirecTV system; having them only

enhances the service allowing customers to

order movies through a remote control

instead of through the phone or over the

internet.

Technician Frank Martinez: It’s more of

a convenience than anything else. . . .

Alvarez: But every phone line connected to

a receiver means more money for DirecTV

and MasTec, the contractor these men work

for. So the techs say their supervisors have

been putting pressure on them. Deducting

five bucks from their paychecks for every

DirecTV receiver that’s not connected to a

phone line.

Martinez: We go to a home that . . . needs

three . . . three receivers that’s . . . fifteen

dollars.

Alvarez: Throw in dozens of homes every

week and the losses are adding up fast.

Alvarez (questioning a room full of

technicians): How many of you here by a

show of hands have had $200 taken out of

your paycheck? (Most technicians raise

hands.)

Martinez: More.

10

Alvarez: Want to avoid a deduction on your

paycheck? Well, according to this group,

supervisors have ordered them to do or say

whatever it takes.

Martinez: Tell the customer whatever you

have to tell them. Tell them if these phone

lines are not connected the receiver will

blow up.

Alvarez: You’ve been told to tell customers

that . . .

Martinez: We’ve been told to say that.

Whatever it takes to get that phone line into

that receiver.

Alvarez (reporting): The lie could cost

customers big money . . . the fee to have a

phone line installed could be as high as

$52.00 per room . . . want a wireless phone

jack? That will cost you another 50 bucks.

(Alvarez shown attempting unsuccessfully

to obtain comment from MasTec at its

offices.)

Alvarez (reporting): But statements from

their corporate office and from DirecTV

make it clear the policy of deducting money

from employees’ paychecks will continue.

A DirecTV spokesman said techs who don’t

hook up phone lines are quote ‘denying

customers the full benefit and function of

their DirecTV system.’ These men disagree

11

and say the policy has done nothing but

create an environment where lying to

customers is part of the job.

Alvarez (interviewing): It’s either lie or lose

money.

Technician Sebastian Eriste: We don’t have

a choice.

Alvarez (reporting): Now . . . during our

investigation, MasTec decided to reimburse

money to some techs who had met a certain

quota but the policy continues and one

reason could be that DirecTV does keep

track of their customers’ viewing habits

through those phone lines. Now just last

year, DirecTV paid out a $5 million

settlement with Florida and 21 other states

for deceptive practices and now, because of

our story, the attorney general’s office is

looking into this newest issue so we’ll, of

course, keep you posted.

News Anchor: You think they would have

learned the first time.

Alvarez: You think so. We’ll see what

happens.

News Anchor: Thank you, Nancy.

MasTec, 357 NLRB at 104-06; Broadcast Tr. (J.A. 434-36).

Neither Selby nor Martinez is one of the alleged subjects of

12

discrimination in this case, as both men resigned before the

terminations at issue here.

When the segment aired, MasTec informed its contacts at

DirecTV. DirecTV, in turn, told MasTec it did not want the

technicians in the broadcast representing DirecTV in

customers’ homes. MasTec then fired nearly all of the

technicians who participated in the broadcast, including those

who did not speak on air.

B.

In an unfair labor practice proceeding against MasTec

and DirecTV, the companies initially prevailed before an

administrative law judge (ALJ). The ALJ first found that the

technicians’ appeal to the public through the news story

related to an ongoing labor dispute with their employer, as

was necessary for their conduct to qualify as protected

concerted activity. The ALJ then turned to the “more difficult

issue” of whether the technicians’ statements in the segment

nonetheless fell outside the Act’s protection because they

were “so disloyal, disparaging and malicious as to be

unprotected.” ALJ Op. 18 (J.A. 18). The ALJ concluded that

the technicians’ statements met that standard and thus were

unprotected.

The Board disagreed with the ALJ. The Board explained

that, under its decisions, “employee communications to third

parties in an effort to obtain their support are protected

where” (i) “the communication indicate[s] it is related to an

ongoing dispute” and (ii) it “is not so disloyal, reckless or

maliciously untrue as to lose the Act’s protection.” MasTec,

357 NLRB at 107. As to the first prong, the Board agreed

with the ALJ “that the employee communications here were

clearly related to their pay dispute.” Id. As to the second

13

prong, the Board found that the ALJ “clearly 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 Act’s

protection.” Id.

With regard to whether the technicians’ statements were

“maliciously untrue,” the Board determined “that almost all of

the statements . . . were truthful representations of what the

[companies] told them to do,” and any “arguable departures

from the truth were no more than good-faith misstatements or

incomplete statements, not malicious falsehoods.” Id. at 107-

08. With regard to whether the statements amounted to

“unprotected disloyalty or reckless disparagement,” the Board

explained that “it will not find a public statement unprotected

unless it is flagrantly disloyal, wholly incommensurate with

any grievances which [the employees] might have.” Id.

(quoting Five Star Transp., Inc., 349 NLRB 42, 45 (2007)).

Here, the Board found, the technicians’ statements did not

meet that standard. As a result, the Board held that the

companies had committed an unfair labor practice by firing

the technicians for participating in the interview.

The companies filed petitions for review in this court,

and the Board filed a cross-application for enforcement. See

29 U.S.C. § 160(e), (f). The Board also moved for summary

enforcement of the portions of its order relating to issues that

are unchallenged here—threats made by MasTec to its

employees in violation of the Act and two of MasTec’s

workplace policies found to violate the Act. See Board Br.

27-28. Because MasTec brings no challenge to those portions

of the order, we grant the Board’s request for summary

enforcement as to those issues. See Allied Mech. Servs., Inc.

v. NLRB, 668 F.3d 758, 765 (D.C. Cir. 2012).

14

II.

This court “must uphold the judgment of the Board

unless, upon reviewing the record as a whole, we conclude

that the Board’s findings are not supported by substantial

evidence, or that the Board acted arbitrarily or otherwise erred

in applying established law to the facts of the case.” Tenneco

Auto., Inc. v. NLRB, 716 F.3d 640, 646-47 (D.C. Cir. 2013)

(quoting Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348

(D.C. Cir. 2011)). “Determining whether activity is concerted

and protected within the meaning of Section 7 [of the Act] is a

task that implicates the Board’s expertise in labor relations,”

so the “Board’s determination that an employee has engaged

in protected concerted activity is entitled to considerable

deference if it is reasonable.” Citizens Inv. Servs. Corp. v.

NLRB, 430 F.3d 1195, 1198 (D.C. Cir. 2005) (quoting NLRB

v. City Disposal Sys., Inc., 465 U.S. 822, 829 (1984)). Even

“as to matters not requiring [the Board’s] expertise,” we may

not “displace the Board’s choice between two fairly

conflicting views,” regardless of whether we “would

justifiably have made a different choice had the matter been

before” us in the first instance. Universal Camera Corp. v.

NLRB, 340 U.S. 474, 488 (1951).

Applying those deferential standards here, we uphold the

Board’s decision. The Board held that the technicians’

participation in the news segment was protected concerted

activity relating to their ongoing dispute about the new pay

policy. In the Board’s view, the technicians’ statements in the

interview were neither so disloyal and incommensurate with

their labor grievances, nor so maliciously untrue, as to fall

outside the Act’s protection. The companies do not dispute

the correctness of the legal standards applied by the Board.

They instead argue that the Board applied those standards in a

manner contrary to law or reached conclusions unsupported

15

by substantial evidence. We conclude that the Board acted

within its discretion.

A.

The National Labor Relations Act protects the right of

employees to “engage in . . . concerted activities for the

purpose of collective bargaining or other mutual aid or

protection.” 29 U.S.C. § 157. That protection encompasses

efforts by employees “to improve terms and conditions of

employment” through appeals to third parties standing

“outside the immediate employee-employer relationship.”

Eastex, Inc. v NLRB, 437 U.S. 556, 565 (1978). For instance,

this court has recognized the right of employees to support a

consumer boycott of their employer’s products in connection

with a labor dispute (as long as they do not go beyond the

dispute to disparage the employer’s product itself). George A.

Hormel & Co. v. NLRB, 962 F.2d 1061, 1064 (D.C. Cir.

1992). Employees may not be discharged for engaging in

such protected conduct. Id.; see 29 U.S.C. § 158(a)(1).

While the Act protects the right of employees to engage

in third-party appeals, the Act also establishes that an

employer may not be required to reinstate an employee who

has been “suspended or discharged for cause.” 29 U.S.C.

§ 160(c). And “[t]here is no more elemental cause for

discharge of an employee than disloyalty to his employer.”

NLRB v. Local Union No. 1229, Int’l Bhd. of Elec. Workers,

346 U.S. 464, 472 (1953) (Jefferson Standard).

Of course, some third-party appeals by employees, even

in the context of a labor dispute, could fairly be considered

disloyal. An “employee who supports a boycott of his

employer’s product,” for instance, “violates his duty of

loyalty to the employer.” Hormel, 962 F.2d at 1064.

16

Nonetheless, we have held that an employee has a protected

entitlement to support a boycott of his employer’s product if it

arises in connection with an ongoing employment dispute. Id.

at 1065.

The Act therefore recognizes two potentially competing

interests. On one hand, the Act gives an employee a protected

right to engage in (and thus to avoid discharge for engaging

in) third-party appeals in furtherance of an employment

grievance, even if the employee’s conduct amounts to

disloyalty. On the other hand, the Act recognizes an

employer’s latitude to discharge an employee for cause,

including for disloyalty. So where is the line between

protected third-party appeals, for which employees are

immune from discharge for disloyalty, and unprotected third-

party appeals, for which employees are subject to discharge

for disloyalty?

The Supreme Court’s decision in Jefferson Standard, 346

U.S. 464, gives some guidance. The case arose out of a

television station’s contract dispute with its employees. The

principal point of disagreement concerned the union’s efforts

to secure renewal of a contract provision subjecting employee

discharges to arbitration. Id. at 467. Employees picketed

outside the station’s offices, displaying placards and

distributing handbills criticizing the station for refusing to

renew the arbitration provision. The employer took no

exception to any of that conduct. Id. at 467.

About a month and a half into the dispute, however, a

group of employees began distributing a new handbill.

Unlike the original handbills, the new handbill “made no

reference to the union, to a labor controversy or to collective

bargaining.” Id. at 468. It instead criticized the company’s

product and business policies in the form of “a vitriolic attack

17

on the quality of the company’s television broadcasts.” Id.

The station terminated the technicians associated with the new

handbill, and the Board sustained the company’s action.

The Supreme Court upheld the Board’s decision. The

Court emphasized that the new handbill “related itself to no

labor practice of the company,” and “made no reference to

wages, hours or working conditions.” Id. at 476. “The attack

asked for no public sympathy or support,” and the “policies

attacked were those of finance and public relations for which

management, not technicians, must be responsible.” Id. In

those circumstances, the Court explained, the “fortuity of the

coexistence of a labor dispute affords these technicians no

substantial defense.” Id. That was because the new handbill

“omitted all reference to,” and “had no discernible relation

to,” the ongoing labor controversy. Id. Rather, the handbill

simply made “a sharp, public, disparaging attack upon the

quality of the company’s product and its business policies, in

a manner reasonably calculated to harm the company’s

reputation and reduce its income.” Id. at 471. In that context,

the handbill amounted to “a demonstration of such

detrimental disloyalty as to provide ‘cause’” for the

employees’ discharge. Id. at 472.

In the years since Jefferson Standard, the Board has

formulated a two-prong test for assessing whether employees’

third-party appeals constitute protected concerted activity or

instead amount to “such detrimental disloyalty” as to permit

the employees’ termination for cause. Under the Board’s test,

“employee communications to third parties in an effort to

obtain their support are protected where [i] the

communication indicate[s] it is related to an ongoing dispute

between the employees and the employers and [ii] the

communication is not so disloyal, reckless or maliciously

untrue as to lose the Act’s protection.” American Golf Corp.,

18

330 NLRB 1238, 1240 (2000) (Mountain Shadows Golf); see

Emarco, Inc., 284 NLRB 832, 833 (1987). This court has

upheld the Mountain Shadows Golf test as “accurately

reflect[ing] the holding in Jefferson Standard.” Endicott

Interconnect Technologies, Inc. v. NLRB, 453 F.3d 532, 537

(D.C. Cir. 2006).

The first prong of the test—whether “the communication

indicate[s] it is related to an ongoing dispute between the

employees and the employers”—focuses on whether it would

be apparent to the target audience that the communication

arises out of an ongoing labor dispute. Mountain Shadows

Golf, 330 NLRB at 1240. “[T]hird parties who receive

appeals for support in a labor dispute will filter the

information critically so long as they are aware it is generated

out of that context.” Sierra Publ’g Co. v. NLRB, 889 F.2d

210, 217 (9th Cir. 1989). In Jefferson Standard, the handbill

in question fell outside the Act’s protection because it simply

attacked the quality of the company’s product without

indicating any connection to the ongoing labor controversy.

In this case, by contrast, there is no dispute that the

technicians’ statements in the interview segment indicated a

relationship “to an ongoing dispute between the employees

and the employers,” satisfying the first prong of the Mountain

Shadows Golf test. 330 NLRB at 1240. The companies thus

do not challenge the Board’s finding “that the employee

communications here were clearly related to their pay

dispute.” MasTec, 357 NLRB at 107.

The issue in this case solely concerns the second prong of

the Mountain Shadows Golf test: whether the employees’

statements in the interview were “so disloyal, reckless or

maliciously untrue as to lose the Act’s protection.” 330

NLRB at 1240. The second prong does independent work, in

19

that an employee’s third-party appeal, to be protected, not

only must relate to an ongoing labor dispute (the first prong)

but also cannot be “so disloyal, reckless, or maliciously

untrue” as to fall outside the Act’s protections (the second

prong). Id. Jefferson Standard had no occasion to address

the latter issue because the employees’ disparaging

communication giving rise to their discharge in that case

“omitted all reference to” the ongoing labor dispute—it thus

failed at what would become the first step of the Mountain

Shadows Golf test. 346 U.S. at 476.

Our dissenting colleague believes that Jefferson Standard

in fact engaged with what would become the second step of

that test because the Court, in the penultimate sentence of its

opinion, said: “Even if the [employees’] attack were to be

treated, as the Board has not treated it, as a concerted activity

wholly or partly within the scope of those mentioned in § 7

[of the Act], the means used by the technicians in conducting

the act have deprived the attackers of the protections of that

section, when read in the light and context of the purpose of

the Act.” Id. at 477-78. We read that sentence to pertain to

the first-step inquiry, not the second step. Specifically, the

Court there confirmed that, even if the Board had found the

employees’ handbill to be protected activity connected to the

ongoing labor dispute, the Court would have disagreed

because the “means used by the technicians” in the handbill

had omitted any reference to—and had made no purported

connection to—that dispute (a fact emphasized by the Court

throughout its opinion, see id. at 468, 472, 476-77). And

because a third-party appeal must indicate a connection to an

ongoing labor dispute in order to satisfy the first step (mere

contemporaneousness with a dispute is not itself enough), see

Mountain Shadows, 330 NLRB at 1240, the handbill in

Jefferson Standard would have been deemed unprotected

even if the Board had found otherwise. The handbill thus was

20

unprotected conduct for which the employees could be

discharged, as had also been true of the unprotected activity in

several cases referenced by the Court in a footnote appended

to the above-quoted sentence. See 346 U.S. at 478 n.13.

In this case, unlike Jefferson Standard, the employees’

third-party appeal indicated its connection to the ongoing

labor dispute. We therefore must proceed to the second step

to assess whether the employees’ statements in the television

segment were so disloyal or maliciously untrue as to

relinquish the Act’s protection.

B.

The Board concluded that the employees’

communications in the news segment were neither “so

disloyal” nor so “maliciously untrue” as to fall outside the

Act’s protection. See MasTec, 357 NLRB at 107-08. The

companies challenge the Board’s decision both as to

disloyalty and as to malicious untruth. We find no basis to

overturn the Board on either score under the governing

standards of review. (We note that, while the Mountain

Shadows Golf test refers not only to “disloyal” or

“maliciously untrue” statements but also to “reckless”

statements, the Board considered the latter category in

conjunction with disloyalty, see id. at 108, and neither

company takes issue with the Board’s approach in that

respect.)

1.

We first consider the Board’s conclusion that the

technicians’ statements in the interview segment were not “so

disloyal . . . as to lose the Act’s protection.” Id. at 107. As

we have explained, it is well-established that third-party

21

appeals can fall within the zone of protected activity even if

indisputably disloyal. See Hormel, 962 F.2d at 1064-65. The

question therefore is: when does an employee’s participation

in efforts to obtain third-party support become so disloyal that

it ceases to fit within the Act’s protection? And on the facts

here, were the employees’ statements in the interview about

the new pay policy, and about the companies’ urging them to

mislead customers, so disloyal as to be unprotected?

Under the Board’s decision, third-party appeals cross the

line from protected to unprotected disloyalty when they

become “flagrantly disloyal, wholly incommensurate with any

grievances which [the employees] might have.” MasTec, 357

NLRB at 108 (quoting Five Star Transp., Inc., 349 NLRB at

45); see also, e.g., Manor Care of Easton, Pa., 356 NLRB

No. 39 (Dec. 1, 2010); Valley Hosp. Med. Ctr., Inc., 351

NLRB 1250, 1260 (2007); Sacramento Union, 291 NLRB

540, 546 (1988); Richboro Cmty. Mental Health Council, 242

NLRB 1267, 1268 (1979); Veeder-Root Co., 237 NLRB 1175,

1177 (1978). Neither company contends that the “flagrantly

disloyal”/“wholly incommensurate” standard applied by the

Board in this case is improper or otherwise contrary to law.

Our dissenting colleague nonetheless takes issue with that

formulation on the ground that “the NLRA doesn’t immunize

disloyal behavior” in a third-party appeal at all, regardless of

the degree of disloyalty. Dissenting Op. 15. That is incorrect,

and is inconsistent with our precedent. In Jefferson Standard

itself, the Court spoke in terms, not of whether the employees’

third-party appeal was disloyal, but instead of whether it

exhibited “such detrimental disloyalty as to provide ‘cause’

for” dismissal. 346 U.S. at 472 (emphasis added).

Accordingly, when we later applied Jefferson Standard in our

decision in Hormel, we specifically rejected the employer’s

argument that the Act posed no obstacle to its discharge of an

22

employee for engaging in the disloyal conduct of supporting a

boycott against the company. Although we deemed the

employee’s conduct in that regard to constitute disloyalty

“[a]s a rule,” we held that the Act still “protects [the

employee] from discharge on that account” insofar as his

actions “arose out of the ongoing labor dispute.” Hormel, 962

F.2d at 1064-65. Under Hormel, that is, the Act does

immunize disloyalty in a third-party appeal when it is related

to an ongoing employment dispute.

Our court therefore subsequently accepted the Board’s

conclusion that, to afford valid grounds for discharge under

Jefferson Standard, an employee’s third-party appeal in

connection with an ongoing labor dispute must be more than

just disloyal: it must be “so disloyal . . . as to lose the Act’s

protection.” Endicott, 453 F.3d at 537 (emphasis added)

(quotation omitted). And once we accept, as our precedent

compels, that disloyalty alone is not enough to remove the

Act’s protections in the context of a third-party appeal, we see

no facial invalidity in the Board’s general description of the

requisite nature and degree of disloyalty as “flagrant[]

disloyal[ty], wholly incommensurate with any grievances

which [the employee] might have.” MasTec, 357 NLRB at

108 (quoting Five Star Transp., Inc., 349 NLRB at 45). The

Board of course might have used various formulations to

capture a third-party appeal that is unprotected because it is

disloyal to an extent going sufficiently beyond the seeking of

public support in connection with an ongoing labor dispute.

Asking whether a public appeal is “wholly incommensurate”

with the ongoing grievance, and is “flagrantly disloyal” in that

sense, is one such formulation. Petitioners evidently agree:

neither company, as noted, challenges that formulation.

In finding that the technicians’ conduct qualifies as a

protected third-party appeal under that standard, the Board

23

explained that the technicians went to the television station

“only after repeated unsuccessful attempts to resolve” their

dispute through direct discussions with MasTec. MasTec, 357

NLRB at 108. The Board further noted that, although the

“newscast shed unwelcome light” on the companies’ business

practices, the segment “directly related to the technicians’

grievance about what they considered to be an unfair pay

policy that they believed forced them to mislead customers”

about the need for a phone connection to receive television

programming. Id. In those respects, the technicians’ conduct

was not “wholly incommensurate with [their] grievances”

about the pay policy and their being encouraged to mislead

customers to avoid losing pay under that policy. See id.

The Board additionally observed that, while the

technicians might have been aware that the newscast could

lead some consumers to cancel their service, there was no

evidence the technicians specifically “intended to inflict such

harm on the” companies in their statements in the segment “or

that they acted recklessly without regard for the financial

consequences to” the companies (as opposed to an intent to

garner public support for their own position in the ongoing

pay dispute). Id. (citing Community Hosp. of Roanoke Valley,

220 NLRB 217, 223 (1975), enf’d 538 F.2d 607 (4th Cir.

1976); NLRB v. Circle Bindery, Inc., 536 F.2d 447, 452 (1st

Cir. 1976)). In that sense, the technicians’ third-party appeal

was no more disloyal (or more “flagrantly” so) than

employees’ efforts to obtain public support for a boycott of

their company’s products in an ongoing labor dispute, which,

as noted, we held in Hormel is protected activity even though

a breach of their duty of loyalty. See 962 F.2d at 1064-65.

The companies, joined by our dissenting colleague, see

an inconsistency with Hormel in the Board’s noting (as one

consideration) the lack of evidence that the employees

24

participated in the newscast with the intention to cause

subscribers to cancel their service rather than the intention to

gain public support in the pay dispute. In Hormel, we

addressed three episodes in which an employee sought public

support for a national boycott of Hormel’s products. See id.

at 1062-63, 1065. The first two episodes occurred during, and

in relation to, a labor dispute between the employee’s union

and the company. The Act thus “protect[ed] [the employee]

from discharge on that account” even though the conduct

constituted disloyalty. Id. at 1065. But the third episode took

place after the labor dispute had ended. See id. at 1063, 1064.

We found that support of a consumer boycott against one’s

own company at that point in time—“after the end of the

labor dispute,” id. at 1064—necessarily presents grounds for

discharging the employee for disloyalty, because, by

definition, it bears no relation to an ongoing labor dispute.

The sole issue in Hormel with respect to the employee’s post-

dispute conduct therefore was whether he in fact “support[ed]

the consumer boycott of Hormel products”—if he did, his

actions “were not protected” and he could be “lawfully

discharged” for disloyalty. Id.; see id. at 1065-66.

The companies’ argument here focuses on our analysis of

that issue in Hormel, i.e., whether the employee’s post-dispute

actions constituted support of the boycott, in which case it

was unprotected disloyalty. The conduct in question

consisted of driving a truck in a parade leading to a rally for

the boycott and then attending the rally. See id. at 1063,

1065-66. The employee’s actions, to any observer, would

have appeared to constitute support of the boycott. The Board

nonetheless concluded otherwise, on the rationale that, no

matter how his actions may have appeared, the company

failed to prove that he in fact intended to support the boycott.

See id. at 1064-65. We explained that the Board erred in

assessing the employee’s support for the boycott based solely

25

on his actual intent (i.e., what he “believed in his heart of

hearts”), rather than asking whether a “reasonable observer”

would infer that the employee “acted in furtherance of the

boycott.” Id. at 1065-66. Here, the companies argue that the

Board similarly erred by taking into account as one

consideration whether the technicians, in participating in the

newscast, “intended” to cause consumers to cancel their

service. MasTec, 357 NLRB at 108.

The companies’ argument is unpersuasive. The relevant

discussion in Hormel addressed a different question than the

one at issue here. In this case, the Board took note of whether

the technicians intended to cause subscribers to cancel their

service when assessing whether the technicians’ participation

in the news interview was “so disloyal” as to fall outside the

Act’s protection. In Hormel, by contrast, the discussion of

employee intent pertained to the question of whether the

employee had engaged in disloyal conduct in the first place—

viz., whether he had acted in support of the boycott. In other

words, the question in Hormel was, “did he do it?,” whereas

the question here is, assuming he did it, “does what he did rise

to the level of flagrant disloyalty?” While Hormel bars any

consideration of intent as to the former question, the decision

does not address, and thus does not prohibit, the consideration

of intent when assessing whether an employee’s third-party

appeal rises to the level of flagrant disloyalty.

Our dissenting colleague agrees that Hormel involved a

different question, but believes that the difference is

immaterial. See Dissenting Op. at 7-8. We disagree. Hormel

establishes that an employee of course cannot disclaim an

action that rings out as disloyal to all the world by contending

that he in fact did not intend to act disloyally. The employee

had “violated his duty of loyalty to Hormel” by “driving in

the parade and attending the rally to which it led”—he

26

“clearly communicated to every observer that he was a

member of the group supporting the boycott,” regardless of

whether the company showed what he “believed in his heart

of hearts.” Hormel, 962 F.2d at 1066. That is a meaningful

limitation in circumstances like those in Hormel, in which the

employee could not have been engaged in a protected third-

party appeal because the labor dispute had already ended. As

we explained, “extending protection to such conduct would so

circumscribe as to defeat the employer’s right to discharge an

employee” for disloyalty. Id. at 1065. That understanding

applies in any situation involving a discharge for disloyalty,

not just in a third-party appeal to the public: whenever the

ground for discharge is disloyalty, Hormel precludes

insulating the employee from discharge on a theory that,

however much it may appear that he engaged in disloyal

conduct, he might not have intended to do so. Under Hormel,

the appearance is enough to establish that the employee

engaged in disloyal conduct.

The dissent believes that, although Hormel involved the

question whether the employee engaged in disloyal conduct

for which he could be discharged (because it was unconnected

to any ongoing dispute), the decision’s bar against

considering employee intent as to that question necessarily

also extends to the determination whether, when an

employee’s third-party appeal is connected to an ongoing

dispute and thus may be protected, it is so disloyal as to lose

the Act’s protections. Hormel itself did not think it was

reaching the latter issue: we said that the case “turn[e]d upon

the question whether the Board properly determined that [the

employee] did not support the consumer boycott of Hormel

products after the end of the labor dispute,” when his conduct

by definition would be grounds for discharge if disloyal. Id.

at 1064. To be sure, in answering that question, we observed

that “the Act requires an objective test of disloyalty.” Id. at

27

1065. But that statement must be read in context, not in an

expansive manner reaching even questions not before the

court. Indeed, our dissenting colleague allows that intent can

continue to play at least some role in connection with

disloyalty after Hormel. See Dissenting Op. 11 n.4. And

when read in context, it is apparent that Hormel’s mandate for

an “objective test” pertained to the question whether the

employee had engaged in the disloyal act of supporting a

boycott against his company, see 962 F.2d at 1064-65, in

which event he could be discharged for unprotected disloyalty

having no connection to an ongoing dispute.

The Board could reasonably conclude that, even if an

employee’s subjective intent cannot bear on that question

under Hormel, an employee’s intentions can still shed

meaningful light on whether, when a third-party appeal is

related to an ongoing grievance, it is protected—in particular,

on whether the employee primarily aimed to draw the public’s

support in the dispute or instead intended to go further by

gratuitously causing harm to the company (i.e., “wholly

incommensurate” with the grievance). The Board thus could

consider an actor’s state of mind to bear on whether the

degree and nature of his disloyalty warrants denying him the

Act’s protections even though his appeal relates to an ongoing

grievance. See Sierra Publ’g Co., 889 F.2d at 218-19 n.13

(“motive, if discernible, may illuminate loyalty or

disloyalty”); cf. Morisette v. United States, 342 U.S. 246, 249

n.21 (1952) (“intent is of the very essence of [criminal]

offenses based on disloyalty”). Here, accordingly, the Board

permissibly considered whether the employees’ statements in

the news segment sought to draw public support for their

grievance or instead aimed gratuitously to harm their

employer by causing consumers to cancel services. Hormel

does not bar consideration of an employee’s motivations in

28

that fashion to assess if a third-party appeal connected to an

ongoing dispute is so disloyal as to be unprotected.

The companies get no further in their reliance on our

decision in Endicott Interconnect Technologies, Inc. v. NLRB,

453 F.3d 532. There, an employee, in the aftermath of layoffs

at his company, strongly criticized the company’s

management in statements to a reporter and in an internet

posting. Id. at 534-35. He told the reporter that the layoffs

left “gaping holes in th[e] business” and resulted in “voids in

the [company’s] critical knowledge base.” Id. at 534. After

the company warned him against making such statements, he

nonetheless posted a message on a public internet forum

saying, among other things: “This business is being tanked

by a group of people that have no good ability to manage it.

They will put it into the dirt just like the companies of the past

. . . .” Id. at 535. The company fired him, but the Board

found that he had engaged in protected activity and ordered

his reinstatement. Id.

Upon review, we set aside the Board’s decision. We

noted that the Board had invoked its Mountain Shadows Golf

test for identifying protected third-party appeals, and held that

the test was an accurate statement of the law. Id. at 537. We

explained, though, that while the test calls for assessing

whether an employee’s statements were “so disloyal, reckless,

or maliciously untrue as to lose the Act’s protection,” the

Board had disregarded the “disloyalty” aspect of the standard

altogether, instead focusing exclusively on whether the

statements were maliciously untrue or reckless. Id.

Examining the question of disloyalty in the first instance, we

held that the employee’s statements were so disloyal as to fall

outside the Act’s protection. We emphasized that the

offending statements had been made by an “experienced

insider,” and endangered the viability of the company at a

29

critical time when it “was struggling to get up and running

under new management.” Id.

Our decision in Endicott did not compel the Board in this

case to conclude that the technicians’ participation in the

television interview amounted to flagrant disloyalty. Endicott

of course did not establish that all conduct amounting to

disloyalty automatically affords grounds for discharge:

Endicott came after Hormel, in which we had already

established that third-party appeals, even if amounting to

disloyalty, can be protected concerted activity when

connected to an ongoing labor dispute. See id. at 536 (citing

Hormel).

The question of whether a third-party appeal is so

disloyal as to fall outside the Act’s protection is an inherently

fact-intensive, context-dependent one. See, e.g., Sierra Pub.

Co., 889 F.2d at 217; see also Jefferson Standard, 346 U.S. at

475-76. In concluding in Endicott that the employee’s

statements crossed the line from protected to unprotected

disloyalty, we thus focused on case-specific considerations

such as the employee’s status as an experienced insider, the

particular vulnerability of the company as it was coming

under new management, and the “caustic[]” nature of the

employee’s attacks claiming that the new management would

“tank[]” the company and “put it into the dirt.” 453 F.3d at

537. This case involves differently situated employees and

companies. It also involves different types of statements, in

that the technicians made no assertions about management

decisions or management’s running of the company outside

the specific context of their grievances about the pay policy.

Significantly, moreover, we decided Endicott in

circumstances in which the Board had failed to apply the

“disloyalty” aspect of the Mountain Shadows Golf test

30

altogether. See id. Considering the issue in a vacuum, we

concluded that the employee’s statements rose to the level of

unprotected disloyalty. Here, by contrast, the Board

specifically examined the question of disloyalty on the facts

of this case, concluding that the technicians’ statements were

not so disloyal as to lose the Act’s protection. In that setting,

we do not reexamine the issue as if we were deciding it on a

blank slate. Rather, we assess only whether there is

“substantial evidence in the record to support the Board’s

conclusion.” Hormel, 962 F.2d at 1066.

Substantial evidence supports the Board’s determination

that the technicians’ statements in the news segment were not

“flagrantly disloyal, wholly incommensurate” with their

grievances against the pay policy. Neither of the companies

argues otherwise. To prevail in any such argument, the

companies would need to demonstrate that no reasonable

mind could find the evidence adequate to support the Board’s

finding. Universal Camera, 340 U.S. at 477. They could not

do so on the record before the Board.

The Board explained that: the technicians participated in

the newscast only after unsuccessfully attempting to resolve

their grievance directly with their employer; the news

segment directly related to their objections to a pay policy

viewed by them to be unfair and to call for them to mislead

customers; and their statements sought to bring attention to

the nature of their grievances rather than to unnecessarily

tarnish their employer. MasTec, 357 NLRB at 108. In those

circumstances, it was reasonable for the Board to conclude

that the technicians’ statements in the interview were not

“flagrantly disloyal, wholly incommensurate with any

grievances which they might have.” Id.

31

2.

We turn next to the Board’s finding that the technicians’

statements in the interview were not “maliciously untrue.”

For a third-party appeal to fall outside the Act’s protection on

grounds of malicious untruth, it is not enough for employee

statements to be false, inaccurate, or misleading. Such

statements may be “untrue,” but they would not be

“maliciously untrue.” For statements to be “maliciously

untrue and unprotected,” they must be “made with knowledge

of their falsity or with reckless disregard for their truth or

falsity.” MasTec, 357 NLRB at 107 (citing TNT Logistics

North America, Inc., 347 NLRB 568, 569 (2006), rev’d. sub

nom. Jolliff v. NLRB, 513 F.3d 600 (6th Cir. 2008)); see

Sprint/United Mgmt. Co., 339 NLRB 1012, 1018 (2003);

Senior Citizens Coordinating Council of Riverbay Cmty. Inc.,

330 NLRB 1100, 1107 n.17 (2000); Delta Health Ctr., Inc.,

310 NLRB 26, 36 (1993); see also Linn v. United Plant

Guard Workers of Am., Local 114, 383 U.S. 53, 64-65 (1966)

(adopting actual malice standard from New York Times Co. v.

Sullivan, 376 U.S. 254, 280 (1964) for libel actions under

state law arising out of labor disputes). And while our

dissenting colleague questions whether the malicious-untruth

inquiry should have any independent office, see Dissenting

Op. 23-24, our decision in Endicott validated the Board’s

standard under which it examines whether a communication is

“maliciously untrue” so “as to lose the Act’s protection.” 453

F.3d at 537. We have no occasion to revisit the matter here.

The companies do not challenge the Board’s legal

understanding of the malicious-untruth standard. Instead,

they argue that certain statements in the news segment rose to

the level of malicious untruth, and that the Board erred in

finding otherwise. We review those arguments under the

substantial evidence standard. We ask, that is, whether the

32

Board could reasonably find the evidence adequate to support

its conclusion that the technicians’ statements were not

maliciously untrue. See Universal Camera, 340 U.S. at 477.

Moreover, when applying the substantial evidence standard to

the Board’s decisions about protected versus unprotected

conduct, we give “considerable deference” to the Board’s

“reasonable” conclusions because of the Board’s particular

expertise in the area. Citizens Inv. Servs., 430 F.3d at 1198.

The Board concluded that, “for the most part,” the

technicians’ statements in the news segment “were accurate

representations of what [the companies] had instructed the

technicians to tell customers” about the need to connect a

phone line for the receiver to work. MasTec, 357 NLRB at

107. “Any arguable departures from the truth,” the Board

found, “were no more than good-faith misstatements or

incomplete statements, not malicious falsehoods justifying

removal of the Act’s protection.” Id. at 108. We hold that the

Board could reasonably consider the evidence adequate to

support its findings.

a.

The first statements at issue are those in which the

technicians said that they were told to lie to customers about

the need for a phone connection and that their pay would be

reduced if they did not lie. In particular, one technician

observed, “If we don’t lie to the customers, we get back

charged for it”; and another said, “We don’t have a choice,”

after the reporter remarked, “It’s either lie or lose money.”

MasTec, 357 NLRB at 105-06.

The companies argue that the Board improperly

disregarded the ALJ’s finding that the employees were “never

explicitly told to lie.” ALJ Op. 19 (J.A. 19). In fact, the

33

Board agreed that the technicians were not explicitly told to

lie; it simply found that they were “essentially told to lie.”

MasTec, 357 NLRB at 107 (emphasis added). Substantial

evidence supports the Board’s conclusion. For instance, in a

DirecTV training video—which the ALJ, Board, and this

court all had the same opportunity to review—two DirecTV

Vice Presidents advised the technicians to tell customers

(falsely) that connecting a phone line “is a mandatory part of

the installation and [needed] for the equipment to function

correctly.” Training Video Tr. 2 (J.A. 431). Neither

company claims that statement was true.

Additionally, the Board explained, even if the companies

“may have avoided expressly using the word ‘lie’ when

suggesting ways to overcome obstacles to making receiver-

phone line connections,” the technicians were instructed to do

“‘whatever it takes’ to make the connection” and to “tell

customers ‘whatever you have to tell them.’” MasTec, 357

NLRB at 107. In the Board’s view, the “technicians would

readily understand these instructions to include ‘lie if you

have to.’” Id. That is at least a reasonable conclusion to draw

from the evidence. As a result, substantial evidence supports

the Board’s conclusion that there was no malicious untruth in

the technicians’ statements that they were told to lie.

Even so, the companies argue, it was maliciously

untruthful for the technicians to say that they would lose

money if they did not lie. The companies do not dispute that

technicians were subject to a back-charge of $5 for each

receiver they did not connect to a phone line. The companies

see a malicious untruth, though, in the lack of specificity in

the interview segment that the per-receiver back-charge

applied only if a technician failed to connect at least half of

his receivers to a phone line over a 30-day period.

34

Substantial evidence supports the Board’s conclusion that

the absence of a fully elaborated explanation of the pay policy

was not so maliciously untruthful as to lose the Act’s

protection. As an initial matter, the technicians had little, if

any, control over the editing of their interview or the content

of the final segment. See id. at 107 n.12. At any rate, as the

Board observed, the technicians’ statements in the edited

segment “fairly reflected their personal experiences under the

new pay scheme,” in that “[a]lmost all of them . . . had failed

to achieve at least a 50 percent connection rate.” Id. Indeed,

some technicians may have lacked a full understanding that

the back-charge applied only if their connection rate fell

below the threshold. See Hearing Tr. 391 (J.A. 299). In that

context, the Board reasonably concluded, “the failure to fully

explain the 50 percent connection rule was at most an

inaccuracy,” and there “is no basis in the record to find that

that technicians knowingly and maliciously withheld that

information in order to mislead the viewing public.” MasTec,

357 NLRB at 107.

Our dissenting colleague opines that, in a separate

respect, the employees made maliciously untruthful

statements by indicating that they would lose money if they

did not lie to customers about the need for a phone

connection. See Dissenting Op. at 19-20. The dissent agrees

that the companies told the technicians to mislead customers

into believing that the receivers would not work without a

phone connection. Id. at 21. But, our colleague reasons, the

technicians still could have avoided any back-charge without

lying to customers if the technicians disregarded the direction

to lie and instead found other ways to improve their

connection rates beyond the 50% threshold. Again, however,

almost all of the technicians in fact had been unable to

achieve that connection rate as a matter of their own actual

experience. From their perspective, misleading customers

35

into thinking there was no choice about a phone connection

would have materially improved connection rates (and thus

eliminated back-charges)—indeed, that is presumably why

the companies essentially told the technicians to lie.

Considered in that light, the Board was not required to

find a malicious falsehood in the technicians’ indication that

they faced continued back-charges if they did not lie. That

was exactly their experience. We cannot set aside the Board’s

findings on this issue as unsupported by substantial evidence.

b.

The next statement at issue concerns a MasTec

supervisor’s suggestion that technicians should tell customers

that a receiver would “blow up” if not connected to a phone

line. In the interview segment, a technician referenced that

comment by saying: “Tell the customer whatever you have to

tell them. Tell them if these phone lines are not connected the

receiver will blow up.” MasTec, 357 NLRB at 105. And

when the reporter queried, “You’ve been told to tell

customers that,” the technician responded, “We’ve been told

to say that. Whatever it takes to get the phone line into that

receiver.” Id.

The companies contend that the Board ignored the ALJ’s

credibility-based determination that the “blow up” comment

was made in jest. In fact, however, the Board expressly

characterized the comment as a “joking suggestion.” Id. at

107. But the Board determined that, even as a joke, the

supervisor’s comment “underscored th[e] message” that the

technicians should mislead customers if necessary, “as it

undoubtedly was meant to do.” Id. That is at least a

reasonable conclusion about the comment given the context in

which it was made. Indeed, the MasTec supervisor made the

36

“blow up” comment in the course of advising technicians to

tell customers “whatever you have to tell them” and do

“whatever it takes” to connect a phone line. Id. at 104. The

technician’s statements in the interview segment reinforced

that context in expressly tying the “blow up” comment to the

mandate to tell customers “whatever you have to tell them”

and “[w]hatever it takes.” Id. at 105.

Insofar as the companies argue that the technician’s

statement rose to the level of being maliciously untrue simply

because he did not expressly explain that the “blow up”

comment was originally made in jest, we find no reversible

error in the Board’s decision. To the extent the comment was

not self-evidently hyperbolic, the technician’s failure to spell

that out did not necessarily render his repetition of the

comment maliciously untrue. It is undisputed that a MasTec

supervisor made the comment, so the technician’s repetition

of it was not untruthful on its face. Accepting that the

comment was originally uttered as a joke, and that the

technicians who heard it seem to have understood it that way,

it was still part of the companies’ telling technicians to do

“whatever it takes,” including lying to customers, to get

receivers connected to phone lines. And because the

technician’s recounting of the “blow up” comment in the

news segment specifically (and accurately) tied the comment

to the further direction to say “whatever it takes,” he

conveyed a sense of the general context in which the

comment was originally made.

In those circumstances, the absence of express

specification that this particular way of being told to do

“whatever it takes” was meant hyperbolically (as opposed to

literally) did not require the Board to find that the technician’s

repetition of the comment was maliciously untrue. Indeed, to

the extent the hyperbolic nature of the “blow up” comment

37

would not have been immediately apparent to a listener, it is

hard to see how the comment could have been understood in

any other way upon reflection. After all, to believe that the

supervisor in fact wanted technicians to tell customers a

receiver would blow up without a phone connection, one

would have to think that the companies, for some reason,

wanted to promote the (false) belief that their product was so

dangerous that it was susceptible to exploding in customers’

homes. Why, a customer presumably would think, would any

credible company sell me a product that might blow up inside

my home, much less do so and then supposedly give me a

choice to eliminate the danger at no cost? A listener to the

interview in all likelihood thus would have understood—

accurately—that the suggestion to tell customers the receiver

might blow up had been made in jest, and that the companies

did not in fact want the technicians to propagate the false

belief that their product could explode inside a family’s home.

That is not to say that the Board necessarily would have

been unjustified had it found that the failure to specify the

joking nature of the “blow up” comment rendered the

statement’s repetition a malicious falsehood. But we do not

approach that factual inquiry with fresh eyes; rather, under the

governing standard, we affirm the Board as long as it could

reasonably find the evidence for its conclusions to be

adequate. The Board reasonably found that, as with the

technicians’ failure to explain all the details of the pay policy,

the recounting of the “blow up” comment without fully

elaborating its context amounted, at most, to an “incomplete

statement[],” not a “malicious falsehood[] justifying removal

of the Act’s protection.” Id. at 108.

38

c.

Finally, the companies argue that statements in the

broadcast linking the technicians’ grievances to extra fees for

customers were maliciously untrue. In introducing the story

at the outset of the segment, a news anchor in the studio said

the technicians would be “talking about a company policy that

charges you for something you may not ever use.” Id. at 105.

And subsequently, the reporter who interviewed the

technicians said that the “lie”—i.e., that a phone connection is

necessary to receive a signal—“could cost customers big

money . . . the fee to have a phone line installed could be as

high as $52.00 per room . . . want a wireless phone jack?

That will cost you another 50 bucks.” Id. The companies

contend that those statements were maliciously untrue

because the extra charges would apply, not for a standard

phone connection, but only for a premium installation in

which there would be no visible phone cord.

The reporter, however, stated only that the misleading

suggestion about the need for a phone connection “could”

result in an added installation cost for customers, not that it

necessarily would do so. At any rate, the Board

acknowledged that the way the segment described the issue

“may have been misleading.” Id. at 107 n.12. But the Board

explained that all of the relevant statements were made by the

reporter or other news personnel, not by the technicians

themselves. Id. And the technicians “testified without

contradiction that their only input was in responding to [the

reporter’s] questions on the day of the interview,” and that

they had no opportunity to see the segment before it aired. Id.

The companies note that none of the technicians later

disavowed the reporter’s statements, and some even

characterized the reporter as their “spokesperson” after the

broadcast. See Hearing Tr. 292-93 (J.A. 255-56). Even so,

39

given that statements are unprotected only when “made with

knowledge of their falsity or with reckless disregard for their

truth or falsity,” MasTec, 357 NLRB at 107 (citing TNT

Logistics N. Am., Inc., 347 NLRB 568, 569 (2006)), we will

not disturb the Board’s finding that the statements by third

parties do not meet that standard.

C.

DirecTV also argues that, even if the technicians had a

protected right to criticize their direct employer (MasTec) in

connection with their grievances, they had no protected rights

vis-à-vis their employer’s customer (DirecTV). That

argument affords no basis for granting relief to DirecTV. The

Act makes clear that, if nothing else, DirecTV committed an

unfair labor practice by causing MasTec to terminate its

employees. See ALJ Op. 17 (J.A. 17). DirecTV is an

employer under the Act (and does not argue otherwise). And

“[a]n employer violates the Act when it directs, instructs, or

orders another employer with whom it has business dealings

to discharge, layoff, transfer, or otherwise affect[] the

working conditions of the latter’s employees” for an

unprotected reason. Dews Constr. Corp., 231 NLRB 182, 182

n.4 (1977); see also Int’l Shipping Ass’n, 297 NLRB 1059,

1059 (1990) (An employer “may violate Section 8(a) not only

with respect to its own employees but also by actions

affecting employees who do not stand in such an immediate

employer/employee relationship.”).

* * * * *

40

For the foregoing reasons, we deny the companies’

petitions for review and grant the Board’s cross-application

for enforcement.

So ordered.

BROWN, Circuit Judge, dissenting: Twenty-six technicians

objected to their employer’s new, exacting compensation

terms. When their employer refused to relent, they pitched

their story to a local news station’s consumer watchdog

reporter. These employees then appeared on television in an

effort to curry public sympathy for their demands. So far, no

problem. The NLRA has always blessed organized efforts

like these aimed at gaining advantage in a labor dispute.

But when these technicians falsely accused their

employer during a television broadcast of certain outrageous

business practices, they crossed a line—from labor dispute to

public disparagement; from concern about wages and working

conditions to a vendetta aimed at undermining the

Companies’ reputation. True, the NLRA aggressively

protects organizing efforts, but the core of the Act is the

balance it strikes between employees’ and employers’

legitimate, conflicting interests. There are limits to how far

employees may go in pursuit of bargaining advantage. Those

who work within these limits are protected, but those who

ignore them, who pursue their ends through inappropriate

means, are stripped of the Act’s protections.

This is not a close case. Had the MasTec technicians

honestly and fairly discussed their labor dispute with the news

station, their aggressive tactics could be sustained as a proper

appeal to outside parties. See Eastex, Inc. v. NLRB, 437 U.S.

556, 565 (1978). But these technicians chose instead to feed

the station a false, disparaging story they knew would trigger

public outrage. The two most damning lies they told the

viewers of WKMG-TV Channel 6 were that their employer

(1) required them to lie (it did not), and (2) seriously

encouraged them to scare customers into accepting an

unnecessary—and excessively expensive—service by

warning that the product would “blow up.” To be sure, a

MasTec supervisor did jokingly suggest that, but everyone

present understood it to be in jest. By soberly repeating that

2

joke to a public audience without its context and as though it

were a serious instruction, these technicians left the NLRA

and its protections behind. As “[t]here is no more elemental

cause for discharge of an employee than disloyalty to his

employer,” NLRB v. Local Union No. 1229, Int’l Broth. of

Elec. Workers, 346 U.S. 464, 472 (1953) (Jefferson

Standard), I can’t blame MasTec for showing them the door.

And frankly, neither can the NLRA.

It’s not hard to see why the technicians resorted to these

manipulative gambits: an ordinary labor dispute would not be

newsworthy, but tales of corporate perfidy and consumer

fraud would undoubtedly pique the interest of Channel 6 and

the viewing public. Still, self-interest does not excuse

mendacity, and MasTec acted well within its rights when it

fired these disloyal technicians.

***

Of course, as I write in dissent, I’m alone in my view of

this case. The court upholds the Board’s determination that

the NLRA requires employers to suffer insubordination and

damaging falsehoods in silence unless they can prove the

employees’ vindictive mental state. “Common sense

sometimes matters in resolving legal disputes.” Southern

New England Telephone Co. v. NLRB, 793 F.3d 93, 94 (D.C.

Cir. 2015). Here, however, neither common sense nor the

ordinary rules of statutory construction are in evidence—a

lacuna that indicts the unconstitutionally generous standards

of review through which federal courts routinely cede

statutory interpretation to biased administrative tribunals.

This case, for example, demonstrates the lengths to which the

Board will go to contort an evenhanded Act into an anti-

employer manifesto. Instead of attempting to balance

conflicting interests, the NLRB reacts like a pinball machine

3

stuck on tilt; reflexively ensuring employers always lose a

turn. 1

I.

The NLRA prohibits employers from discharging

employees for engaging in certain kinds of protected conduct.

See 29 U.S.C. § 157 (“Employees shall have the right to self-

organization, to form, join, or assist labor organizations . . .

and to engage in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection . . . .”).

This provision doesn’t lend employees unconditional cover,

however. Instead, they are only protected to the extent their

conduct is (1) “related to an ongoing [labor] dispute” and (2)

“not so disloyal, reckless, or maliciously untrue as to lose the

Act’s protection.” In re American Golf Corp., 330 NLRB

1238, 1240 (2000); see also Jefferson Standard, 346 U.S. at

477. This has been the Board’s rule for dischargeable

disloyalty—until today.

1

The Board’s analysis hinges on hedges. See, e.g., Op. 23 (quoting

the Board finding “the technicians’ conduct was not ‘wholly

incommensurate with [their] grievances’”); id. 32 (“The Board

concluded that, ‘for the most part,’ the technicians’ statements in

the news segment ‘were accurate . . . .’”); id. (“‘Any arguable

departures from the truth,’ the Board found, ‘were no more than

good-faith misstatements . . . .’”); id. (“In fact, the Board agreed

that the technicians were not explicitly told to lie; it simply found

that they were ‘essentially told to lie.’”); id. 34 (“[T]he Board

reasonably concluded, ‘the failure to fully explain the 50 percent

connection rule was at most an inaccuracy’”); id. 38 (“[T]he Board

acknowledged that the way the segment described the issue ‘may

have been misleading.’”) (emphasis added). Do not be misled—the

Board’s overuse of adverbs and qualifiers is a sign of evasion, not

precision. See Stephen King, ON WRITING 117-22 (2002).

4

Much like the NLRA itself, this rule mediates the

conflicting rights of employers and employees. On one hand,

“there is no more elemental cause for discharge of an

employee than disloyalty to his employer.” Id. at 472; see

also 29 U.S.C. § 160(c) (“No order of the Board shall require

the reinstatement of any individual as an employee who has

been suspended or discharged, or the payment to him of any

back pay, if such individual was suspended or discharged for

cause.”). On the other, employees enjoy a right to engage in

concerted activity, which can include public criticism of an

employer’s labor policies. When employees are fired for their

conduct during a labor dispute, a “difficulty arises.” Jefferson

Standard, 346 U.S. at 475. Were they fired for disloyalty, or

for protected conduct their employer happened to dislike?

This case involves precisely that difficulty.

Because in my view the technicians seized a public

opportunity to sharply attack the Companies’ business

policies and harm their reputation with false statements, I

would grant the Companies’ petition. The Board’s two

determinations—that the technicians’ actions and statements

were not “so disloyal” or “maliciously untrue”—violated

circuit precedent and were unsupported by substantial

evidence. More fundamentally, the frameworks underpinning

both of the Board’s determinations are themselves unfaithful

to the NLRA and Supreme Court precedent.

A.

The court majority upholds a Board determination that

excused a series of disparaging, false remarks several

employees made during a television broadcast to a journalist

whose only interest was in exposing and publicizing corporate

wrongdoing harmful to consumers. In reaching that

conclusion, the Board ignored binding circuit precedent; by

5

accepting the Board’s action, the majority eviscerates that

precedent. But, we are not the only court to have construed

the NLRA. Even if the Board could excuse itself from our

precedents (an option I do not concede) and a panel of this

court could rewrite an inconvenient case (an alternative

ordinarily available only with the acquiescence of the full

court), the text of the NLRA and the Supreme Court’s

interpretation of it still preclude the Board’s result.

1.

Our controlling decision in George A. Hormel & Co. v.

NLRB, 962 F.2d 1061, 1065 (D.C. Cir. 1992), requires we

grant the Companies’ petition. To see why, let’s examine

what the Board determined. As to whether the technicians’

conduct was sufficiently disloyal to lose NLRA protection,

the Board concluded:

“While the technicians may have been aware that

some consumers might cancel the [Companies’]

services after listening to the newscast, there is no

evidence that they intended to inflict such harm on the

[Companies] or that they acted recklessly without

regard for the financial consequences to the

[Companies’] businesses. We therefore find that the

technicians did not engage in unprotected disloyal or

reckless conduct.”

Mastec Advanced Techs, 357 NLRB 103, 108 (2011)

(emphasis added). Note this paragraph’s animating logic:

because there was no evidence of intent to harm their

employer, the employees’ harmful statements were not

sufficiently disloyal. There’s one small problem with this

subjective approach to disloyalty: we expressly—and

unequivocally—rejected it. See Hormel, 962 F.2d at 1065.

6

In Hormel, an employee was fired for attending a rally

supporting a boycott of his employer. The Board purported to

examine the employee’s subjective intent and concluded he

did not intend any disloyalty. We reversed. Differing views

on the relevance of employee intent accounted for these

opposing conclusions. The Board required the employer to

show it reasonably believed (from the “ostensible evidence”)

that the employee “personally embraced” the boycott. See

George A. Hormel & Co. and Robert W. Langemeier United

Food and Commercial Workers International Union, Local

Union No. 22, 301 NLRB 47, 87 (1991). We disagreed,

explaining such a “subjective test” couldn’t be squared with

the NLRA’s “statutory policy of preserving the employer’s

right to discharge an employee for disloyalty.” Hormel, 962

F.2d at 1065. The question should have been whether “any

reasonable observer” would infer the employee acted in

furtherance of disloyal behavior (the boycott), not whether the

employee intended to be disloyal. Id. at 1066.

Hormel’s holding was quite clear: the NLRA “requires

an objective test of disloyalty.” Id. at 1065 (emphasis added).

In our view, requiring employers to assess intent “would so

circumscribe as to defeat the employer’s right to discharge an

employee who is working against the employer’s business

interest.” Id. An employee may wear a pro-boycott t-shirt

because he “likes the colors” or to fit in with friends, but

“[w]hatever his reason, that employee is unquestionably

promoting the boycott. Anyone who sees him gets that

message.” Id. The employer has a right to fire that disloyal

employee no matter what he intended, but “under the Board’s

subjective test, the employer could not lawfully discharge him

without showing” the employee wore the shirt “to actually

encourage or support the boycott.” Id.

7

Today’s majority excuses the Board’s obvious

circumvention of Hormel, rather than apply its clear holding.

According to the Board, what protected these technicians

wasn’t a lack of evidence that they disparaged the companies,

but a lack of evidence they intended to do so. See Mastec,

357 NLRB at 108. This decision is identical to the analysis

reversed in Hormel, requiring employers to assess intent

before punishing objectively disloyal behavior. That

approach violates the NLRA. 962 F.2d at 1065.

The court’s rewriting of Hormel renders this once-vibrant

precedent a mere rain shadow to the mountain the majority

would have employers climb. The majority rescues the Board

by distinguishing Hormel in two ways, one irrelevant and the

other incorrect.

First, the majority insists Hormel “addressed a different

question than the one at issue here,” Op. 25, that is,

addressing the propriety of subjective tests only as to whether

an act of disloyalty occurred, not as to whether that act was

“flagrantly disloyal.” Id. Consequently, the majority claims

Hormel poses no obstacle to considering “an employee’s

[subjective] intentions” to “shed meaningful light on” “the

degree and nature of his disloyalty,” i.e., to determine

“flagrant” disloyalty. Op. 27. The result is unintelligible.

Hormel now precludes reliance on the employee’s subjective

intent to determine whether the employee’s conduct was

disloyal, but permits the employee’s subjective intent to

determine the “degree and nature” of disloyalty. Tellingly,

the majority attempts to reassure us Hormel retains

precedential value—to its own facts. See Op. 26 (“That is a

meaningful limitation [on the use of subjective intent],

especially in circumstances like those in Hormel. . . .”).

8

The majority is of course correct that the specific

question in Hormel (“did he do it?”) is different from the one

at issue here (“was it flagrantly disloyal?”). But, remember,

Hormel rejected the subjective approach in order to vindicate

“the statutory policy of preserving the employer’s right to

discharge an employee for disloyalty,” 962 F.2d at 1065, a

right the Supreme Court described as “elemental” and “plain,”

Jefferson Standard, 346 U.S. at 472, 475. How can a

statutory policy be threatened by the use of subjective intent

to determine disloyal conduct, but not be threatened by using

subjective intent to determine the “degree” of disloyalty?

How can an employer’s right to discharge for disloyalty be

“elemental” and “plain” when it hinges on an employee’s

subjective intent? The answer is self-evident: It cannot. Only

by adding an unwarranted gloss to the meaning of disloyalty

and subtracting from the law as articulated by the Court can

the majority fashion its purported distinction. This is revealed

in the majority’s sub silentio reversal of Hormel’s holding

that the disloyalty inquiry is “a matter of law.” Compare 962

F.2d at 1066 with Op. 29 (“The question of whether employee

conduct is so disloyal as to fall outside the Act’s protection is

an inherently fact-intensive, context-dependent one.”). Such

an outcome does a disservice to the rule of law. Hormel’s

broad rationale vindicated a clear statutory policy against

using subjective intent to determine disloyal behavior. Its

logic applies with equal force to preclude subjective intent

from determining the degree of disloyalty. And it must,

otherwise its insistence on an objective test would be

pointless.

Second, the majority incorrectly argues it was the

Board’s reliance on subjective evidence of intent that

offended the Hormel court, rather than reliance on intent

altogether. To the court majority, Hormel prohibits

measuring employee intent by reference to a purely subjective

9

standard (what’s in the employee’s “heart of hearts”), but not

through objective evidence. Op. 27. Because the Board used

subjective intent to “shed meaningful light on” “the degree

and nature of his disloyalty,” Op. 27, the court majority

believes the Board’s analysis was consistent with Hormel,

which the majority characterizes as “establish[ing] that an

employee of course cannot disclaim an action that rings out as

disloyal to all the world by contending that he in fact did not

intend to act disloyally.” Op. 25. 2

But, Hormel cannot be read, as the majority does, to

permit consideration of employee intent through objective

evidence. Hormel reversed a Board decision that took

precisely that approach. See 301 NLRB at 87 (finding a lack

of “any ostensible evidence of their support of a boycott”)

(emphasis added). The Hormel ALJ gauged the employee’s

“actual boycott motivation” (intent) by marshalling a litany of

objective evidence on both sides, see id. at 84, which was

adopted in full by the Board, along with the rest of the ALJ’s

recommended Order. Our opinion in Hormel recited the

ALJ’s consideration of this evidence. See 962 F.2d at 1065-

66. Based on these objective indicia of intent, the ALJ

concluded “the evidence is actually very weak that [the

employee] ever personally embraced a boycott.” 3 301 NLRB

2

The majority attempts to cabin Hormel factually too, claiming that

its “sole” disloyalty analysis dealt with “post-dispute conduct.” Op.

24. One of the Board’s many hedges describes this

characterization—it is not “wholly incommensurate” with the facts,

but it is not the full story. Hormel is clear that the post-dispute

consumer boycott of Hormel’s products was an “exten[sion]” of

labor dispute activity. See 962 F.2d at 1063.

3

Among this serial accounting of objective evidence, the ALJ listed

one “purely subjective” indication of the employee’s intent. He

observed: “[The employee] has testified relatedly, and I find

credibly, that he didn’t believe in the effectiveness of the boycott.”

10

at 87. Put differently, the evidence didn’t show the employee

intended to disparage Hormel, and thus his discharge was

unlawful. We rejected that conclusion. To us, the mere fact

of the employee’s presence at the boycott was enough to

justify his termination.

Significantly, the Hormel court didn’t reverse merely

because it disagreed with the Board’s weighing of competing

indicia of intent, a result that would have justified the

majority’s view that Hormel blessed examination of intent

through objective evidence. If so, we simply could have said

the Board downplayed what we saw as the most obvious

indicia of intent: Langemeier’s presence at the rally. No, our

rationale was more fundamental. We rejected the Board’s

entire approach, concluding it was not “a permissible

construction of the NLRA” because it “circumscribe[d]” the

employer’s right to fire disloyal employees. Hormel, 962

F.2d at 1065; see also id. (“The Board’s subjective approach

does not, however, entail a permissible construction of the

NLRA because it is inconsistent with the statutory policy of

preserving the employer’s right to discharge an employee for

disloyalty.”). Where the Board sought objective evidence of

intent, we sought objective evidence of disparagement. Intent

was irrelevant. All that mattered was that the employee

attended the boycott (without expressly disclaiming support

for it). The discharge was lawful because “any reasonable

observer would have to infer” that conduct furthered a

disloyal action (the boycott). Id. at 1066. It did not matter

301 NLRB at 84. However, the Hormel court never cited this; the

opinion instead seems to encompass all of the evidence bearing on

whether the employee “personally embraced” the boycott.

11

why Langemeier participated; only that he did in fact

participate. 4

Thus, the Mastec Board’s opinion is virtually

indistinguishable from the one we reversed in Hormel. Just as

the Board claims it relied on “objective criteria” to gauge

whether MasTec technicians “intended to inflict . . . harm” on

the companies or “withheld information in order to mislead

the viewing public,” the Hormel ALJ sought to gauge the

employee’s “actual boycott motivation” by examining

“ostensible evidence.” In each case, the Board found the

termination unlawful due to a lack of evidence that the

employees intended to disparage or harm their employers.

Assuring us that its examination drew on objective rather than

subjective indicia doesn’t magically sanitize an inquiry that

should have disregarded intent in the first place. No matter

how objective the indicia, they are by the Board’s admission

still probative of the technicians’ subjective intent. That

inquiry is, according to our binding opinion in Hormel, barred

by the NLRA.

By dismissing Hormel based on irrelevant and incorrect

distinctions, the majority has, inappropriately, confined

Hormel to its specific facts, and severely weakened the

important protections afforded to employers through the

second prong of the Jefferson Standard-inspired test.

Unfortunately, sacrificing circuit precedent is not enough to

save the Board’s result—the majority must also ensure that

not even the Supreme Court is allowed to stand in the way of

the Fourth Branch.

4

Perhaps there is some intent component to acting in furtherance of

the boycott. Hormel may not have been able to fire the employee if

he was sleepwalking or totally unaware of the purpose of the event.

12

Nothing in Jefferson Standard supports an analysis of

“flagrant” disloyalty contingent upon subjective intent.

Indeed, nothing in Jefferson Standard suggests terminable

disloyalty must be “flagrant.” Yet, the majority gives

Jefferson Standard a dress-down similar to the one Hormel

received: death by incorrect and irrelevant distinction.

First, the incorrect distinction: After citing the two-part

test for dischargeable disloyalty inspired by Jefferson

Standard (protecting employees from discharge when their

conduct is (1) related to an ongoing labor dispute and (2) not

sufficiently disloyal), the majority claims Jefferson Standard

is in “contrast” with this case because it only dealt with the

first prong. Op. 18 (“In Jefferson Standard, the handbill in

question fell outside the Act’s protection because it simply

attacked the quality of the company’s product without

indicating any connection to the ongoing employment

controversy.”). This is mistaken.

Jefferson Standard “agree[d]” the employees did not

satisfy the second prong. See 346 U.S. at 472 (“[T]he

handbill [w]as a demonstration of such detrimental disloyalty

as to provide ‘cause’ for” termination). Still, the majority

insists “Jefferson Standard had no occasion to address the

[second prong].” Op. 19. But not only did Jefferson

Standard have “occasion” to address the second prong (see

above), it said the employees’ disloyalty rendered irrelevant

any satisfaction of the first prong. See 346 U.S. at 477-78

(“Even if the attack were to be treated, as the Board has not

treated it, as a concerted activity wholly or partly within the

scope of those mentioned within § 7 [of the NLRA], the

means used by the technicians in conducting the attack have

deprived the attackers of the protection of that section, when

read in the light and context of the purpose of the Act.”)

(emphasis added). The majority “reads that sentence to

13

pertain to the first-step inquiry, not the second step.” Op. 19.

By this, I take the majority to mean, since the handbill failed

to “indicate a connection to an ongoing labor dispute . . . the

handbill . . . would have been deemed unprotected [by the

Court] even if the Board had found otherwise,” id (emphasis

omitted). This makes no sense. If the handbill did not

“indicate a connection” to the ongoing labor dispute, then

how could the Board have possibly concluded it satisfied the

first prong? The majority provides no answer.

The logical conclusions from Jefferson Standard are: (1)

the handbill was sufficiently disloyal to merit termination; (2)

the Board did not decide whether satisfying the first prong

would affect the employer’s right to terminate; and (3) even if

the Board found the first prong satisfied, the “means,” i.e., the

handbill’s disparaging contents, were sufficiently disloyal to

merit termination. Sadly, none of these conclusions are clear

after today’s decision (tellingly, the majority cites the Board’s

subsequent precedent to justify its reading, not Jefferson

Standard, see Op. 19).

The framework endorsed by the incorrect distinctions

with Jefferson Standard and Hormel makes it impossible for

disloyal and disparaging employee behavior to be the basis

for termination, so long as it is connected to an ongoing labor

dispute. Indeed, in endorsing the Board’s examination of the

technicians’ subjective intent, the majority goes so far as to

accept the “relat[ion]” itself as valid evidence undermining

any finding of disloyalty. 5 See Op. 22, 16. Going forward, it

5

The majority attempts to also relegate Hormel and another of our

precedents, Endicott Interconnect Techs., Inc. v. NLRB, 453 F.3d

532 (D.C. Cir. 2006), into the same first prong box it places

Jefferson Standard. See Op. 24-28. But it beggars belief to

conclude that Hormel and Endicott do not bear upon dischargeable

disloyalty because the relationship with an ongoing labor dispute

14

is difficult to see how employee behavior could satisfy the

test’s first prong and nonetheless still fail the second. This is

the paradigmatic case, but the court sides with the employees

anyway.

2.

Now, the majority’s irrelevant distinction with Jefferson

Standard: The court accepts the Board’s rule that only

“flagrantly disloyal” and “wholly incommensurate” behavior

is unprotected. The majority claims this rule follows from

Jefferson Standard. In reality, however, the majority

transforms the recounting of terminable disloyalty in some

cases into a requirement for terminable disloyalty in all

cases. 6 The net result is an artificial narrowing of terminable

disloyalty.

Even before the pro-employer Taft-Hartley amendments

were added to the NLRA, the Supreme Court recognized the

Act protected an employer’s right of discharge. Writing for

was not met. The test contains two prongs that must both be met

for the employee to be protected—failing to meet either one means

the employee does not enjoy NLRA protection (making the

majority’s frequent characterizations of these prongs as “steps”

inappropriate). There is no need, therefore, to establish a

relationship between the employee’s activity and an ongoing labor

dispute if disloyalty is proved. In fact, Endicott expressly did not

decide the first prong and nevertheless found disloyalty justifying

discharge. See 453 F.3d at 537 n.5; id. at 538 (Henderson, J.,

concurring).

6

In fact, this is the first time any circuit court in the country has

commented on, let alone accepted, this language. Our previous

opinions cite only the Board’s original formulation of the rule, that

the conduct is “not so disloyal, reckless, or maliciously untrue as to

lose the Act’s protection.” See, e.g., Endicott, 453 F.3d at 537.

15

the Court in 1937, Chief Justice Hughes admonished the

Board not to use its authority as “a pretext for interference

with the right of discharge when that right is exercised for

other reasons than [] intimidation and coercion.” NLRB v.

Jones & Laughlin Steel Corp., 301 U.S. 1, 46 (1937).

Quoting this language, the Jefferson Standard Court declared

that the principle that “disloyalty is adequate cause for

discharge is plain enough,” 346 U.S. at 475, and that “[t]here

is no more elemental cause for discharge . . . than disloyalty,”

id. at 472. 7 That right doesn’t dissolve as soon as a labor

dispute arises. See id. at 477–78 (“Even if the attack were to

be treated . . . as a concerted activity . . . the means used . . .

have deprived the attackers of the protection of [the Act].”).

Employees may engage in concerted activity; however, the

NLRA doesn’t immunize disloyal behavior. But see Op. 21.

Jefferson Standard itself confirms this point. When

commenting that the nature of the employees’ disloyalty

would be terminable even if it were connected to an ongoing

labor dispute, the Court cites a wide range of behavior. See

346 U.S. at 478 n.13. From assault to failing to make

deliveries to avoid crossing a picket line, see id., the varying

forms of disloyalty cited by Jefferson Standard debunk the

notion that only “flagrant” disloyalty can trigger the “plain”

right of discharge. 8

7

The Court’s “plain” and “elemental” descriptors for “the right of

discharge” for disloyalty, and its treatment of the right as pre-dating

the NLRA, evince that Act’s harmony with the longstanding

common law duty of loyalty from which the right to discharge for

disloyalty follows. Our insistence in Hormel on “an objective test

of disloyalty” under the NLRA confirms the same. See 962 F.2d at

1065 (citing THE COMMON LAW to say that “[a]cts should be

judged by their tendency under the known circumstances, not by the

actual intent which accompanies them”) (emphasis added).

8

To be sure, the Court didn’t explain why the particular means used

by these employees deprived them of the Act’s protection. But that

16

But, something very strange happened after Jefferson

Standard. The Board gradually weakened the very right the

Court went out of its way to vindicate. Presently, employers

may only fire “flagrantly disloyal” employees whose behavior

is “wholly incommensurate with any grievances they might

have.” See Mastec, 357 NLRB at 108 (emphasis added).

Anything less than flagrant disloyalty must be taken on the

chin.

This rule is “wholly incompatible” with Jefferson

Standard’s insistence that an employer’s right to fire disloyal

employees is “elemental” and “plain.” Twenty-two years

after Jefferson Standard, the gloss that would ultimately

swallow the plain text made its first appearance—not as a

rule, but as a description of a specific employee’s conduct

toward his employer. Firehouse Restaurant, 220 NLRB 818,

825 (1975). Three years later, the language re-appeared,

again not as a rule but this time as an observation about the

kinds of cases in which the Board had found concerted but

disloyal activity lost NLRA protection. See Veeder-Root Co.,

237 NLRB 1175, 1177 (1978) (observing that in cases of

does not mean we must infer their means were therefore “flagrant.”

The Board’s prior statement of the disloyalty analysis, as we

approved in Endicott, strikes me as quite reasonable. See 453 F.3d

at 537 (approving that the concerted activity be “not so disloyal . . .

as to lose the Act’s protection”) (emphasis added). There seems to

be a significant difference between “flagrant” disloyalty and

conduct that is “so” disloyal it is unprotected. The majority

concludes otherwise, equating them as “various formulations.” See

Op. 22. But if that is true, and “flagrant” disloyalty is thus a

requirement stemming from Jefferson Standard, then the majority

should explain, for example, how, in light of today’s decision, an

employee’s failure to make obliged deliveries to avoid crossing a

picket line constitutes “flagrant” disloyalty. See Jefferson

Standard, 346 U.S. at 478 n.13.

17

flagrant, wholly incommensurate disloyalty, “the Board has

held disciplinary action to be justified”). The language was

more explicitly adopted as a guiding standard one year later in

Richboro Community Mental Health Council, when the Board

rejected an employer’s disloyalty argument for not meeting

the historical standard described in Veeder-Root. 242 NLRB

1267, 1267-68 (1979) (holding that while “flagrantly disloyal,

wholly incommensurate” conduct can forfeit NLRA

protection, “such is hardly the case here”). From description

to observation to standard, the Board slowly, surely chipped

away at a right of employers the Supreme Court had made a

deliberate effort to protect.

Finally, in the decision we’re reviewing today, the

Board’s gradual, decades-long evisceration of the employer’s

discharge right culminated in its strongest invocation of this

language yet. For the first time, the Board made its

requirement of flagrant and wholly incommensurate

disloyalty explicit by framing it in conditional terms: “The

Board has stated that it will not find a public statement

unprotected unless it is ‘flagrantly disloyal, wholly

incommensurate with any grievances which they might

have.’” Mastec, 357 NLRB at 108. 9

9

For what it’s worth, I find no support in the NLRB’s decision for

that statement. Prior to Mastec, the Board had never “stated that it

will not find a public statement unprotected unless” it is “flagrantly

disloyal” and “wholly incommensurate.” The decision it cites for

this proposition, Five Star Transportation, Inc., stated only that it

will consider whether “the attitude of the employees is flagrantly

disloyal [and] wholly incommensurate . . . .” 349 NLRB 42, 45

(2007). Not a single NLRB decision characterizes the “flagrantly

disloyal”/“wholly incommensurate” language in the conditional

language employed in Mastec. The Board’s statement that it had

stated the rule in conditional terms is incorrect.

18

What we are confronted with, then, are two incompatible

propositions. On the one hand, the Supreme Court insists that

an employer’s right to discharge an employee for acts of

disloyalty is “elemental” and “plain enough.” On the other,

the NLRB cautions that where concerted activity is

concerned, the employers’ right extends only to acts of

flagrant disloyalty. The NLRB’s modifier is wholly absent

from, and incompatible with, Jefferson Standard. While I

recognize the Board’s special authority to “appl[y] the general

provisions of the Act to the complexities of industrial life,”

NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963), that

authority should not permit it to erode Supreme Court

precedent—especially when that precedent interprets the

agency’s authorizing statutes.

B.

The majority also upholds the Board’s determination that

the technicians’ statements were not “maliciously untrue.”

The “maliciously untrue” standard is another invention of the

Board, designed especially to deal with a particular sub-

species of disloyalty: false statements. Under this standard,

false statements are unprotected if “made with knowledge of

their falsity or with reckless disregard for their truth or

falsity.” Mastec, 357 NLRB at 107.

The Companies charge the technicians with conveying at

least three maliciously untrue sentiments: (1) the technicians

were required to lie; (2) they were seriously encouraged to tell

customers their receivers would “blow up” if not connected;

and (3) customers are charged per connection. The Board

rejected the Companies’ claims, and the majority now

concludes substantial evidence supported that determination.

19

I disagree. In my view, the Board’s determinations with

respect to at least the first two sets of statements are

unsupported by substantial evidence.

1.

In their interview, the technicians falsely stated they were

required to lie to customers. One technician said, “If we don’t

lie to the customers, we get back charged for it.” Following

the reporter’s observation that “It’s either lie or lose money,”

another said, “We don’t have a choice.” Even if one accepts

the court’s conclusion that the technicians were “essentially

told to lie,” that fact does not justify their additional assertions

either that they had no “choice” but to lie or that if they didn’t

“lie to the customers [they’d] get back charged for it.” The

technicians who made this assertion knew it was false, their

response validated the reporter’s characterization—“[i]t’s

either lie or lose money”–and it unquestionably disparaged

the reputation of the Companies.

The key fact, that at no point in any of the training did

MasTec threaten back charges for technicians who refused to

lie, is one the technicians must have known. That, of course,

would have been absurd. It is not “lying” that triggers back

charges, but rather the failure to convince a customer to

connect. Even if lying might be one way to sell a connection,

it is obviously not the only way. An improved sales pitch

alone could do the trick. After all, customers receive certain

benefits from connecting, such as remote control pay-per-

view, caller-ID integration, and access to system updates.

Sure, as the majority suggests, had the technicians

explained that getting a 50% connection rate is difficult and

that sometimes they felt as though lying was the only way to

avoid back charges, this would be a very different story. That

20

(truthful) description would have fairly and still

sympathetically illuminated the nature of their grievance,

which was that complying with MasTec’s policies was so

difficult that lying seemed an inescapable temptation, one

MasTec even encouraged. But what they actually said paints

a far more damning picture of the Companies. The fact that

they chose to tell a blatant lie, particularly where the truth was

more than adequate to the task, suggests to me their decision

was “reasonably calculated to harm the compan[ies’

respective] reputation[s].” Jefferson Standard, 346 U.S. at

471.

Hedging, the Board retreated to what has become its

favorite haven; one the majority has ensured will remain safe.

“In any event,” the Board explains, any inaccuracies are

excusable since “[t]here is no basis in the record to find that

the technicians knowingly and maliciously withheld that

information in order to mislead the viewing public.” Mastec,

357 NLRB at 107 (emphasis added). The majority says it

“cannot set aside the Board’s findings on this issue as

unsupported by substantial evidence.” Op. 35. But there is an

obvious reason to set aside that finding: it is not in accordance

with the law as established by Hormel’s explicit rejection of a

subjective disloyalty test. The purpose for which these

technicians withheld information hardly matters at all.

Whether it was to mislead the viewing public, or merely for

kicks and giggles, all that matters is whether they knowingly

conveyed disparaging information they knew was false.

Because they clearly did, I respectfully dissent.

2.

Moreover, I would also conclude the Board erred in

concluding the technicians’ repetition of a joking suggestion

as though it were serious was not problematic. In training, a

21

MasTec supervisor jokingly suggested the technicians should

tell the customers their receiver will blow up if it is not

connected to a phone line. Martinez, a former technician,

repeated the joke on the newscast as though it were a serious

suggestion. The exchange proceeded as follows:

Journalist: Want to avoid a deduction on your

paycheck? Well, according to this group, supervisors

have ordered them to do or say whatever it takes.

Martinez: Tell the customer whatever you have to tell

them. Tell them if these phone lines are not

connected the receiver will blow up.

Journalist: You’ve been told to tell customers that . . .

Martinez: We’ve been told to say that. Whatever it

takes to get that phone line into that receiver.

The specific question before the Board was whether it

was maliciously untrue to relay these statements without also

revealing they were made in jest. The answer should have

been plain enough: omitting the context communicated the

false impression that the technicians were, in fact, told to tell

an outrageous lie to customers. Because it was obvious to all

present that the MasTec supervisor’s suggestion wasn’t

serious, Martinez knowingly conveyed false information to

the viewing public.

To be sure, while MasTec technicians were not told to

mislead customers in this way, they were told to mislead them

in another way. They were encouraged to tell customers that

the receiver wouldn’t work unless it was connected to the

phone line, which was untrue. In the Board’s view, this fact

sanitizes the lie Martinez told the viewers of Channel 6.

22

MasTec may not have actually encouraged technicians to

warn about receivers blowing up, but because they did

encourage them to lie in other ways his statements

“underscored that message” and were therefore not

maliciously untrue. See Mastec, 357 NLRB at 107.

But just because the technicians were encouraged to

mislead customers in one way doesn’t justify Martinez’s false

assertion that the technicians were encouraged to mislead

customers in this particular way. This “give an inch, take a

mile” approach assumes (incorrectly) that the effect of the

two statements would have been the same. For obvious

reasons, that wouldn’t be so.

From Martinez’s actual assertion, viewers were left with

an impression that MasTec and DirecTV are so profit-hungry

that they instructed their technicians to tell outrageous, fear-

mongering lies. Indeed, to understand that fear mongering

was the interview’s purpose we need look no further than the

segment’s summation. See Op. 11 (quoting Alvarez

(reporting) to say “the attorney general’s office is looking into

this newest issue so we’ll, of course, keep you posted”)

(emphasis added).

If evidence of subjective intent did have any relevance

here, the reporter’s sensationalizing points us to the smoking

gun (which the MasTec Board assiduously ignored): the fact

that the technicians purposely chose a media forum that

focused almost exclusively on consumer fraud. Absent an

intention to harm the reputation of the Companies and warn

consumers not to do business with them, the Channel 6

program would have no interest in airing this segment. This

is exactly what the ALJ—the initial fact finder—concluded,

even when applying the Board’s own “flagrantly disloyal”

23

standard: 10 that employees’ desire to undermine the

Companies’ reputation “overshadowed the labor dispute.”

See APPX019 (“[T]hese statements [that the technicians were

instructed or encouraged to lie to customers] . . . apparently

enticed the TV station to even do a story about Respondents’

business.”).

Had Martinez chosen instead to tell the truth, the

viewers would still have been presented with a damning

picture of these companies, but one far less worthy of outrage.

To be sure, deceptive business practices may aggravate

consumers. But the more brazen and glaring the deception,

the more contempt it earns.

Here again, as with the first set, the truth was all the

technicians needed to achieve their goal of currying public

sympathy. Choosing instead to hedge their bets with a few

malicious falsehoods, Martinez launched “a sharp, public,

disparaging attack upon . . . the companies’ . . . business

policies, in a manner reasonably calculated to harm the

company’s reputation and reduce its income.” See Jefferson

Standard, 346 U.S. at 471.

3.

More fundamental than my disagreement over what the

record demonstrates, I question both the relevance and

propriety of the Board’s “maliciously untrue” framework.

10

The majority repeatedly notes the Companies do not challenge

the Board’s standard. See, e.g., Op. 14, 18, 22, 31. Why should

they? Applying Hormel’s objective standard, the ALJ found for the

Companies even under the Board’s stringent standard. Perhaps the

majority is suggesting any judicial questioning of the Board’s

standard is beyond the pale. I hope not. Judicial review should

mean more than batting cleanup for the administrative state.

24

Indeed, it is unclear why the Board is concerned with a

statement’s malicious falsity at all. Jefferson Standard, the

supposed inspiration behind this framework, established an

employer’s right to punish employees for “disloyalty”—or,

“disparaging attack[s] upon the quality of [their employer’s]

product and its business policies, in a manner reasonably

calculated to harm the company’s reputation and reduce its

income.” 346 U.S. at 471. Determining that a statement is

“maliciously untrue” is an unnecessary detour, at least as far

as Jefferson Standard is concerned, because we’d still need to

decide whether the maliciously untrue statement is

sufficiently disloyal.

The only way to make sense of this framework is to

assume the Board treats maliciously false statements as per se

disloyal. Otherwise, there is no need for this separate

analysis, especially since any time a false statement is

something less than malicious—which is typical given how

high a bar that is—the Board nonetheless still must examine

whether it was “not so disloyal.” But the majority and the

Board disclaim a per se approach to determining disloyalty.

See, e.g., Op. 27. In sum, the majority’s approach cannot

even claim internal logic.

II.

In a future case where we hopefully restore the precedent

we gut today, we should require more faithful adherence to

the equipoise envisioned by the Court in Jefferson Standard.

A proper view of the NLRA, according to the Court, requires

proper attention both to the employees’ right to air grievances

and the employer’s right to punish disloyalty. Thus, restoring

the original spirit of Jefferson Standard requires carefully

defining the hallmarks of disloyalty. Fortunately, decisions

25

by various courts of appeals and even the NLRB provide

some useful suggestions.

For instance, we have held employee conduct is disloyal

when it disparages “the quality of the company’s products and

its business policies.” Endicott, 453 F.3d at 536. There, the

employee was terminated for commenting publicly that his

employer lacked “good ability to manage,” was causing the

business to “tank[],” and was going to “put it in the dirt,” and

we upheld the termination as consistent with Jefferson

Standard. Id. at 537. Conversely, where employee conduct

did not contain “any remarks or materials disparaging the

quality of products of the employer,” we concluded such

conduct did not “bring the case within the rationale of

[Jefferson Standard].” Allied Indus. Workers, AFL-CIO

Local Union No. 289 v. NLRB, 476 F.2d 868, 879 (D.C. Cir.

1973). Thus, where there’s no disparagement of the

employer’s product or practices, there’s no cause for

termination. 11

Other courts of appeals, as well as the NLRB, have also

examined the following two factors: (1) “whether the appeal

to the public concerned primarily working conditions,” and

(2) “whether it avoided needlessly tarnishing the company’s

image.” NLRB v. Mount Desert Island Hosp., 695 F.2d 634,

11

An important note: nearly every public, concerted activity by

employees or unions will cause some harm to employers, but that

“does not alone render them disloyal.” Mohave Elec. Coop., Inc. v.

NLRB, 206 F.3d 1183, 1189 (D.C. Cir. 2000); see also Five Star

Transp., Inc. v. NLRB, 522 F.3d 46, 53–54 (1st Cir. 2008) (“Indeed,

were harm or potential harm to the employer to be the determining

factor in the Court’s [] protection analysis, it is doubtful that the

legislative purposes of the Act would ever be realized.”). What

matters, it seems, is disparagement of the employer’s products or

business practices, not its labor practices.

26

640 (1st Cir. 1982); see also Technicolor Gov’t Serv’s, Inc.,

276 NLRB 383, 388 (1985) (holding that “disloyalty” turns

on whether, in context, “it was necessary to legitimate

employee ends”). As public, concerted activity will

inherently cause some harm to an employer’s image, this

approach suggests that, to avoid acting disloyally, employees

must be cautious not to harm the employer’s image more than

is necessary or appropriate.

Another possible test for disloyalty finds expression in

our en banc decision in Diamond Walnut Growers, Inc. v.

NLRB, 113 F.3d 1259 (D.C. Cir. 1997) (en banc). Though

technically implicating a different line of Supreme Court

precedent (NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375

(1967), not Jefferson Standard), the court’s analysis resonates

in both. There, an employee was terminated for participating

in a strike and international boycott of his employer’s product.

That boycott referred to the employer’s workforce as “‘scabs’

who packaged walnuts contaminated with ‘mold, dirt, oil,

worms and debris.’” Id. at 1261. And in determining whether

the employer had “substantial justification” for terminating

the employee, the court considered whether the resolution of

the underlying labor dispute would remove the taint brought

on by the employee’s conduct. The court concluded:

“The company’s ability to sell the product, even if the

strike is subsequently settled, could well be destroyed.

If a customer becomes apprehensive to bite into

Diamond’s walnuts because of a concern at finding an

impurity (even part of a worm), it is unlikely that a

strike settlement will eliminate that visceral fear.”

Id. at 1267. Because a strike settlement would not likely

reassure prospective buyers that they can safely snack on

27

these walnuts without fear of also chewing into a worm, the

employer justifiably terminated the employee.

Each of the foregoing examples suggests that determining

disloyalty demands investigation into how the labor dispute

and the disloyal activity fit together. Activities focused on

working conditions that avoid needlessly tarnishing the

company’s image will not be deemed “so disloyal” even if

they cause some harm to the employer’s reputation. But

when employees get carried away, lose sight of the labor

dispute, and cross the Rubicon into disparaging their

employers’ products or business practices or inflicting

needless or irredeemable damage to their reputation, they

forfeit the NLRA’s protection.

In my view, that’s what happened here. The technicians’

disloyalty stems from their statements accusing MasTec and

DirecTV of deceptive business practices. These statements

display all the hallmark attributes of disloyalty discussed

above. As in Endicott, what these technicians alleged

constitutes disparagement of the “quality” of the companies’

“business policies.” 453 F.3d at 537. And consistent with

Diamond Walnut, it is hard to imagine that a resolution of this

labor dispute would remove the distaste local customers (and

potential customers) likely have toward these allegedly

crooked companies. 113 F.3d at 1268. Finally, unlike in

Mount Desert, the false allegations they hurled at MasTec and

DirecTV were not “intertwined inextricably with complaints

of working conditions,” nor were they “necessary to

effectuate employees’ lawful aims.” 695 F.2d at 640–41. To

be sure, the employees’ discomfort about lying to customers

is certainly related to the labor dispute. Again, had their

public complaints actually focused on what MasTec

encouraged them to say, there may have been a strong case

that these statements were necessary to effectuate their lawful

28

aims. But they said none of these things. Rather, their

statements on the broadcast were confined to false allegations

that they were required to lie and that they were seriously

encouraged to tell customers their receivers would blow up if

they didn’t connect a phone line. By falsely suggesting they

were required to lie, and to lie so preposterously, they

“needlessly tarnish[ed]” MasTec and DirecTV’s image.

Consequently, their termination was justified.

As things stand now under this court’s imprimatur, the

Board will continue to force employers to endure—and even

finance—employees who are “working against [their]

business interest,” Hormel, 962 F.2d at 1065, either because

the conduct isn’t flagrantly disloyal or the intent behind it

isn’t objectively discernible. If I’m ever in Orlando, I half

expect I’d see a commercial along these lines:

“Hi, I’m Rob Lowe, and I have DirecTV.”

“And I’m ‘Channel 6-watching Rob

Lowe,’ and well, now I have cable.”

I just hope my receiver doesn’t blow up.