i QUESTIONS PRESENTED For more than fifty years, Supreme Court and circuit court authority have recognized that the National Labor Relations Act (“NLRA”) protects an employer’s right to “suspend[] or discharge[]” an employee “for cause.” This authority has also recognized that such “cause” includes an employee’s disloyalty to his or her employer. Yet, contrary to this well-settled authority, the United Stated Circuit Court for the District of Columbia’s interpreted the Supreme Court’s decision in NLRB v. Local Union No. 1229, Int’l Bhd. Of Elec. Workers (Jefferson Standard), 364 U.S. 464 (1953) to allow it and the National Labor Relations Board to determine whether an employee subjectively intends to be disloyal when considering whether an employer has “cause” to discharge the employee. In doing so, the United Stated Circuit Court for the District of Columbia has disregarded the Supreme Court’s standard for assessing such situations and has created a conflict with other circuits that have determined that the standard for evaluating disloyal conduct is objective, not subjective. This case presents two questions: 1. Whether, under Jefferson Standard, an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer? 2. Whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard? ii PARTIES TO THE PROCEEDING Petitioner MasTec Advanced Technologies, A Division of MasTec, Inc., was the Petitioner and Cross-Respondent in the D.C. Circuit Court of Appeals, along with its customer, DirecTV. Respondent National Labor Relations Board was the Respondent and Cross-Petitioner in the Fifth Circuit. iii CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and Circuit Rule 26.1, Petitioner MasTec Advanced Technologies, a division of MasTec, Inc., provides, among other services, installation and maintenance services for satellite television equipment under contract with various satellite television providers, including DirecTV, Inc., which recently merged with AT&T. MasTec Advanced Technologies is a division of MasTec, Inc. MasTec, Inc. is a publicly-traded Florida corporation. iv TABLE OF CONTENTS Page QUESTIONS PRESENTED ......................i PARTIES TO THE PROCEEDING ............... ii CORPORATE DISCLOSURE STATEMENT ......iii TABLE OF CONTENTS.........................iv TABLE OF APPENDICES ..................... vii TABLE OF CITED AUTHORITIES .............viii PETITION FOR A WRIT OF CERTIORARI........1 OPINIONS BELOW..............................3 JURISDICTION .................................3 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........................4 STATEMENT OF THE CASE ....................4 A. MasTec’s Business and Relationship with DirecTV ..............................4 B. DirecTV Requires Connection of Telephone Lines to Satellite Receivers ........6 v Table of Contents Page C. MasTec Institutes a New “Non-Responder” Policy.....................................6 D. The Technicians Publicly Protest MasTec’s Non-Responder Policy..............7 E. WKMG Channel 6 Airs DirecTV’s “Dirty Little Secret” .............................10 F. Proceedings Before the NLRB and D.C. Circuit ...................................12 REASONS FOR GRANTING THE PETITION.....16 A. The D.C. Circuit’s Interpretation of Jefferson Standard Contravenes this Court’s Precedent .........................17 1. The D.C. Circuit’s application of Jefferson Standard is contrary to authority and precedent because it improperly creates a subjective standard for determining whether an employee was appropriately terminated for disloyal actions.....................17 2 . T he appl ication of this t est is an i mpor t ant and recurring issue that merits this Court’s immediate review ..............23 vi Table of Contents Page B. The D.C. Circuit’s Opinion Highlighted a Circuit Split on the Legal Standards for Analysis of Employee Conduct Following Jefferson Standard ...............24 C. The D.C. Circuit’s Decision is also contrary to authority and precedent because it improperly allows the targeting of non-employers to be protected Section 7 activity ..............28 CONCLUSION .................................31 vii TABLE OF APPENDICES Page APPENDIX A – OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, FILED FEBRUARY 10, 2017 ........1a APPENDIX B – OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, DECIDED SEPTEMBER 16, 2016 .............3a APPENDIX C – DECISION AND ORDER OF THE NATIONAL LABOR RELATIONS BOARD, DATED JULY 21, 2011 ..............77a APPENDIX D – DECISION OF THE ADMINISTRATIVE LAW JUDGE FOR THE NATIONAL LABOR RELATIONS BOARD, DATED JANUARY 4, 2008..........113a viii TABLE OF CITED AUTHORITIES Page CASES In re Am. Golf Corp. (Mountain Shadows Golf), 330 NLRB 1238 (2000) ...................passim Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259 (D.C. Cir. 1997) ..................22 Dreis and Krump Manufacturing Co. v. NLRB, 544 F.2d 320 (7th Cir. 1976) ....................26 George A. Hormel & Co. v. NLRB, 962 F.2d 1061 (D.C. Cir. 1992)...................23 Golden Day Sch., Inc. v. NLRB, 644 F.2d 834 (9th Cir. 1981) ....................28 Labor Board v. Jones & Laughlin, 301 U.S. 1 (1937) ..............................18 Misericordia Hosp. Med. Ctr. v. NLRB, 623 F.2d 808 (2d Cir. 1980) .....................25 NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675 (1951) ............................29 NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953).......................passim ix Cited Authorities Page NLRB v. Knuth Bros., 537 F.2d 950 (7th Cir. 1976)..................26, 27 NLRB v. Nat’l Furniture Mfg. Co., 315 F.2d 280 (7th Cir. 1963).....................25 NLRB v. Parr Lance Ambulance Service, 723 F.2d 575 (7th Cir. 1983).....................26 Plumbers Local 447 (Malbaff Landscape Constr.), 172 NLRB 128 (1968)..........................30 Sierra Pub. Co. v. NLRB, 889 F.2d 210 (9th Cir. 1989).....................27 Texaco, Inc. v. NLRB, 462 F.2d 812 (3d Cir. 1972) .....................25 STATUTES 28 U.S.C. § 1254(1).............................3, 16 29 U.S.C. § 152 (“Section 2”) ......................14 29 U.S.C. § 157 (“Section 7”) .................passim 29 U.S.C. § 158(a) (“Section 8(a)”) .............4, 14, 17 29 U.S.C. § 160(c) ................................17 National Labor Relations Act ................passim 1 PETITION FOR A WRIT OF CERTIORARI This case arises from proceedings before the National Labor Relations Board (“Board” or “NLRB”), but involves broad legal issues of significance, including the Circuit Court’s modification of the Supreme Court’s standard relating to an employer’s ability to discharge an employee for disloyalty. After learning that its employees had made disparaging, disloyal and untruthful public statements on television against its only customer at its Orlando location, MasTec Advanced Technologies, a division of MasTec, Inc. (“MasTec”), investigated these statements and their truthfulness and terminated the employees’ employment. After the employees filed unfair labor practice charges with the Board against MasTec and DirecTV, Region 12 of the Board issued a complaint with respect to those charges. An administrative law judge (“ALJ”) held a hearing with respect to the underlying unfair labor practice charges. In his decision following the hearing, the ALJ determined that the employees’ statements on the news broadcast were related to an ongoing labor dispute but concluded that their statements were so “disloyal, reckless, and maliciously untrue” so as to lose the Act’s protections. (App’x D 158-159). In so holding, the ALJ determined that the employees’ statements were unprotected by the Act and, as a result, MasTec’s termination of the employees did not violate the Act. (Id.). The Board disagreed and reversed the ALJ’s decision, holding that while the ALJ correctly found the employee communications were related to an ongoing labor dispute, the ALJ “clearly erred in finding that the employee 2 communications . were either maliciously untrue or so disloyal and reckless as to warrant removal of the Act’s protections.” (App’x C 93). The Board ostensibly applied this Court’s two-prong test from NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953) and incorrectly found that the employees’ participation in the local news broadcast was protected, concerted activity and, therefore, that the employees were discharged in violation of the National Labor Relations Act. (App’x C 98). Affirming the decision of the NLRB, the D.C. Circuit panel improperly rejected the arguments that the Board misapplied the Jefferson Standard decision. Specifically, the panel’s split decision modified and severely narrowed the definition of disloyalty for which an employer may terminate an employee under Section 7 of the NLRA. (App’x B 23-35). The panel’s decision also ignored Supreme Court precedent and decisions from other circuits by permitting the NLRB to apply a subjective, rather than objective, standard to evaluating employee disloyalty. (Id.). By applying a subjective standard of disloyalty in which the employer must demonstrate an employee’s intent to harm the employer, the majority’s decision eviscerates the right of an employer to terminate an employee who is disloyal under Jefferson Standard. (Id.). In doing so, the D.C. Circuit improperly altered