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.