MasTech Advanced Technologies, (2011)

Docket Number:12-CA-024979
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

MasTec Advanced Technologies, a division of MasTec, Inc. and Joseph Guest

DirecTV, Inc. and Joseph Guest. Cases 122013CA201324979 and 122013CA201325055

July 21, 2011

DECISION AND ORDER

BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND HAYES

This case presents the question of whether 26 former service technicians employed by Respondent Advanced Technologies, a division of MasTec, Inc. (MasTec), lost the protection of the Act by appearing on a television news broadcast in which statements were made about their employer and Respondent DirecTV, Inc., for which MasTec provides installation services.1 The technicians2019 participation in the newscast grew out of their opposition to a new compensation formula that MasTec implemented in response to DirecTV2019s dissatisfaction with MasTec2019s performance.2

1 On January 4, 2008, Administrative Law Judge Michael A. Marcionese issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Respondents MasTec, Inc. and DirecTV, Inc. filed answering briefs, and the General Counsel filed a reply brief.

The National Labor Relations Board has considered the judge2019s decision and the record in light of the exceptions and briefs and has decided to affirm the judge2019s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

2 No exceptions were filed to the judge2019s dismissal of the Sec. 8(a)(1) complaint allegation that Respondent MasTec2019s Operations Manager, Chris Brown, threatened to discharge employees if they complained about their wages.

Respondent MasTec asserts in its answering brief that the judge erred by granting WKMG-TV-62019s petition to revoke MasTec2019s subpoena, which sought information concerning the preparation of the news broadcast on which MasTec2019s technicians appeared. No party raised this issue through exceptions or cross-exceptions, and therefore it has been waived. See Sec. 102.46(b)(2) and (g) of the Board2019s Rules and Regulations. We shall therefore grant the General Counsel2019s request to strike that portion of MasTec2019s brief.

Respondent MasTec does not except to the judge2019s finding that Supervisor Muniz violated Sec. 8(a)(1) by threatening employee Perlaza that the company would close because employees publicly complained about their wages. Respondent MasTec also does not except to the judge2019s finding that the rules set forth in its March 2006 employee handbook pertaining to confidentiality, solicitation, and distribution violated Sec. 8(a)(1). As discussed in the remedy section of this decision, because these unlawful handbook rules were maintained at all of MasTec2019s facilities, nationwide, we shall revise the recommended Order to require notice posting by MasTec at all of its facilities.

Applying the principles set forth by the Supreme Court in Jefferson Standard,3 regarding the extent to which employees2019 disparaging statements to third parties about their employer2019s product or service enjoy the Act2019s protection, the judge concluded that the technicians2019 statements were unprotected and thus that neither MasTec, by terminating its employees, nor DirecTV, by causing their termination, violated Section 8(a)(1).

In his exceptions, the General Counsel challenges the judge2019s finding that the employees2019 statements were unprotected. As explained below, we find merit in the General Counsel2019s position.

Factual Background

MasTec operates as a home service provider (HSP), installing and maintaining satellite television equipment under contract with satellite television providers. In the Orlando, Florida area MasTec2019s only client is DirecTV. The HSP contract agreement requires DirecTV to pay MasTec a fee for every installation, and allows for penalties to be imposed if MasTec fails to meet performance standards.

The Respondents consider connecting the satellite receiver to an active telephone land line to be part of a standard installation. Such connections allow customers

(1) to order pay-per-view by using the remote control;

(2) to have caller ID information displayed on their television screen; and (3) to receive downloads of DirecTV software upgrades. In addition, phone line connections provide a record of what customers are viewing, thereby assisting DirecTV in making programming decisions.

Although these features may be attractive to many consumers, and have potential benefits for DirecTV2019s business, telephone line connections are not essential for the system to function. The record establishes that a satellite receiver will properly transmit the signal to a television set without a telephone connection. Many customers resist having the telephone connection made, even though there is no extra charge for a standard connection.4 Receivers that are connected to phone lines are referred to as 201cresponders201d because they respond to a verification signal; unconnected receivers are called 201cnon-responders.201d

Because of the business importance of telephone connections, the Respondents have emphasized to technicians the need to make as many connections as possible.

3 NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953).

4 If a customer wants a connection but does not wish to have the connecting wires exposed, the wires may be hidden through a custom installation at an additional charge. A custom installation may be accomplished either by threading the wires inside a wall (a 201cwall fish201d) at a charge of $52.50, or by using a wireless telephone jack, priced at $49.

Despite the Respondents2019 efforts, however, it is undisputed that connections were often not made. In early 2006,5 therefore, DirecTV informed MasTec that if it did not improve its responder installation rates, it would be penalized. Specifically, if technicians did not connect at least 50 percent of newly installed receivers to phone lines during the course of a month, DirecTV was going to charge MasTec $5 for each non-responder.

By memo of January 17, MasTec, in turn, informed technicians that their piece work pay structure would be modified to reflect the increased emphasis on improving responder installation rates. Beginning February 1, technicians would be paid $2 less for basic and additional outlet installations, but would earn $3.35 for each receiver they connected to a phone line. In addition, technicians would incur a back-charge of $5 for every new non-responding receiver installed during a 30-day period if they failed to connect at least 50 percent to phone lines. Technicians failing to meet the 50 percent threshold for 60 consecutive days would be subject to termination.

Technicians voiced strong opposition to the new pay formula at several team meetings, arguing that reaching the 50-percent responder rate threshold would be problematic. They pointed out that making the phone connection was not always possible, because of customer resistance or other circumstances beyond their control. Among the obstacles they encountered were: (1) customer concerns about children ordering pay-per-view from the remote; (2) customers wanting neither exposed wires nor to pay for custom installation to hide wires; (3) privacy concerns; and (4) the absence of a land line phone on the premises. Technicians also pointed out that even if they connected the receiver to a phone line during installation, customers could themselves later simply unplug it, leading to the same 201cnon-responder201d result.

In response to the technicians2019 arguments, MasTec supervisors suggested ways around these problems, including making the connection without telling customers they were doing so or telling customers, falsely, that the receiver would not work without it. At one meeting, after hearing a group of technicians repeating the arguments about why the new target percentage rate was unattainable, Regional Operations Manager Chris Brown told them to tell customers anything, 201cwhatever you have to tell them201d and 201cwhatever it takes201d to make the connection, even jokingly suggesting that technicians tell cus

5 Dates refer to 2006.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

tomers that the receiver would 201cblow up201d if it was not connected.6

In addition, MasTec showed the technicians a DirecTV-produced video addressing the importance of making the receiver-phone line connection. In the video, DirecTV2019s vice president for field operations, Stephen Crawford, said MasTec was not to blame for the increased emphasis on improving responder rates and that the pressure was coming instead from DirecTV. He and another DirecTV vice president, Scott Brown, suggested that technicians might have greater success in connecting receivers to phone lines if they did not tell customers they were doing so or simply told them2014again, falsely2014 that the connection was 201cmandatory201d and necessary 201cfor the equipment to function correctly.201d They also suggested that the technicians tell customers, 201cI can either run the phone line for you or you can purchase a wireless phone jack from me,201d thereby 201cput[ting] it right back on the customer.201d7

Technicians received their first paychecks under the new compensation system in late March. Many had been back charged for failing to reach the target responder installation rate. A number of technicians assembled at the Orlando facility parking lot on the mornings of March 27 and 28 and expressed their dissatisfaction to Brown and Facility Supervisor Herbert Villa, reiterating many of the same complaints they had raised with them in previous meetings. Despite their protestations...

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