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Missoula's DirecTV facility charged with union busting

The federal agency that investigates unfair labor practices recently called out Missoula's DirecTV call center.

The National Labor Relations Board (NLRB) accused DirecTV of illegally terminating an employee at its Missoula call center for organizing a strike and attempting to form a union. On Monday, two days before a scheduled trial, the two sides settled the case.

Last summer DirecTV fired employee Mark Wade Smith, 26, for engaging in "concerted activities with other employees for the purposes of mutual aid and protection, by soliciting support for union organizing and concerted opposition to [DirecTV's] changes in incentive pay," the NLRB alleged in its Jan. 29 complaint.

According to Smith, the company reduced bonus amounts paid to employees, and the performance levels needed to earn those bonuses were changed "to a point where they were unattainable."

click to enlarge The National Labor Relations Board accused Missoula’s DirecTV call center of illegally firing employee Mark Smith for organizing a strike in opposition to reductions in compensation. On Monday, two days before a scheduled trial, the two sides settled the case. - PHOTO BY CATHRINE L. WALTERS
  • Photo by Cathrine L. Walters
  • The National Labor Relations Board accused Missoula‚Äôs DirecTV call center of illegally firing employee Mark Smith for organizing a strike in opposition to reductions in compensation. On Monday, two days before a scheduled trial, the two sides settled the case.

"Everyone was ticked at the call center," Smith says.

Smith took action on June 27, 2009, by talking to coworkers at a company picnic about calling in sick or refusing to report to work on the second Sunday of the NFL season, the height of the call center's call volume. (Thousands of DirecTV's NFL Sunday Ticket subscribers typically call to upgrade to high-definition service after it's offered for free on the first Sunday of the season.) Three days later, on June 30, DirecTV fired Smith because his actions, according to the company's employee separation form, "constituted unacceptable behavior."

"Once DirecTV heard what Mark was doing—in other words, talking to employees about the possibility of a potential walk-out—they called him into a meeting and fired him," says Richard Ahearn, NLRB's regional director. "And so he was fired, in our view, because he engaged in 'protected concerted activity,' which is protected under the law, and therefore his discharge was a violation of the National Labor Relations Act."

The settlement, negotiated between NLRB and DirecTV and signed on April 12, compensates Smith with more than nine months of back pay totaling $21,056. It absolves DirecTV of violating the National Labor Relations Act, and requires the company to post notices in its Missoula facility stating that federal law gives employees the right to unionize.

"I wasn't in this for blood," Smith says of the settlement. "All of this started because DirecTV wasn't paying me what was fair. So it's good to get what's fair—at least under the law."

Human resource personnel at the Missoula call center declined to comment, deferring to DirecTV Public Relations Director Robert Mercer.

"Though we have no doubt we were fully within our legal rights to terminate Mr. Smith given his threats to disrupt business operations at our call center," Mercer says, "we believe that settling the case without any admission of wrongdoing was in the best interest of all parties."

NLRB leveraged at least two pieces of likely incriminating evidence against DirecTV to secure the settlement before the April 14 trial. The first and most important evidence was the company's own separation form. It stated that "Smith solicited call center employees in an effort to get up to 200 of them" to strike, which would "cause a disruption of business operations and to highlight his concerns about the company's bonus program."

"In our view," Ahearn says, "their own stated reasons are unlawful."

The second piece of evidence was a Montana Unemployment Insurance Division (UID) investigation. DirecTV argued, apparently, that Smith was ineligible for unemployment benefits because he was fired, and so UID initially refused to grant them, per state law. But Smith challenged UID's determination, and the subsequent UID investigation could not establish "an intentional disregard" of Smith's obligation to DirecTV. Three months after his termination, Smith finally received unemployment benefits from UID.

In its decision, UID wrote that while Smith did solicit workers to strike, he did so during a company picnic held off DirecTV premises, and he was not being compensated at the time.

"Based on the evidence available at this time," the Notice of Determination, dated Sept. 28, 2009, read, "an intentional disregard of your obligation to your employer has not been established. Therefore, your discharge was not for misconduct under [state law]."

Smith, a University of Montana graduate who returned to Salt Lake City to live with family after he lost his job, says UID's determination essentially proved that DirecTV broke the law.

"That piece of paper pretty much sums everything up," he says. "In all reality the real reason I was terminated was because I was talking about organizing a union and talking about organizing a strike."

Ahearn says he's unaware of any other NLRB allegations against DirecTV. Mercer declined to detail DirecTV's unionization policies.

The El Segundo, Calif.-based company—the nation's top satellite TV provider with more than 18 million subscribers—was lured to Missoula in 2005 with an incentive package of county, state and federal funds totaling nearly $18 million. It predicted the call center would have a $40 million annual economic impact. The 70,000-square-foot facility near the Missoula airport now employs about 900 people, most of whom are customer service representatives with starting base wages between $10 and $12.50 per hour.

Sen. Max Baucus, Gov. Brian Schweitzer and local officials lauded the partnership that brought DirecTV to Missoula. But critics derided it as corporate welfare.

"I think it's kind of disturbing," Smith says, "that taxpayers are fronting the bill for this call center to produce jobs...and the call center, or the people who are running it, are directly violating the law to keep their costs down. If I still worked there, I would be upset about that."

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