359 NLRB No. 108
Dish Network Corporation
359 NLRB No. 108
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Dish Network Corporation and Communications
Workers of America, Local 6171 and Eric Sut-
ton. Cases 16–CA–062433, 16–CA–066142 and
16–CA–068261
April 30, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On November 14, 2012, Administrative Law Judge
Robert A. Ringler issued the attached decision. Charging
Party Local 6171 filed exceptions and a supporting brief,
the Respondent filed an answering brief, and Local 6171
filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order.
In adopting the judge’s finding that the Respondent did
not violate Section 8(a)(3), (4), and (1) of the Act by
terminating employee Jorge Tavares, we do not rely on
his finding that the Respondent would have fired Tavares
in part because he had a deficient performance record.
The Respondent did not assert this as a reason for termi-
nating Tavares, either at the time of the discharge or dur-
ing the hearing, nor does the Respondent ask us to adopt
the judge’s finding in this regard. See, e.g., Allied Me-
chanical Services, 346 NLRB 326, 328 fn. 14 (2006)
(“[I]n a case turning on employer motivation, the judge
may not provide reasons not offered by the employer to
defend its decisions.”), citing White Oak Coal Co., 295
NLRB 567, 569–570 (1989).
1 Charging Party Local 6171 has effectively excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(1) of the Act by maintaining handbook
rules prohibiting employees from electronically posting critical com-
ments about DISH Network on or outside of “Company time,” speak-
ing about DISH Network to news media outlets or at public meetings
without management authorization, and communicating with govern-
ment agencies about DISH Network without management’s approval.
In addition, there are no exceptions to the judge’s denial of the Acting
General Counsel’s request for sanctions under Bannon Mills, 146
NLRB 611 (1964).
In finding the discipline and discharge of Tavares law-
ful, we reject Local 6171’s argument that disparate
treatment existed because three technicians who did not
support the Union (Arthur Sandone, Jose Rodriguez, and
Ryan Theiss) committed comparable safety violations
but were not disciplined. To begin, the Charging Party
failed to establish that the circumstances surrounding the
safety violations of Sandone and Rodriguez were similar.
As the judge found, not only did Tavares fail a safety
survey, but Installation Manager Michael Durham ob-
served him disregarding safety policies on multiple occa-
sions. There is no evidence that Sandone failed any
safety surveys or that Durham knew Sandone had com-
mitted safety violations, nor is there evidence that the
Respondent was aware of safety violations committed by
Rodriguez. With regard to Theiss, the record does estab-
lish that, like Tavares, he was observed by management
on several occasions without his safety equipment. But
even assuming Theiss was similarly situated to Tavares,
we find that the Respondent’s treatment of Theiss alone
is insufficient to overturn the judge’s finding that the
Respondent had a practice of issuing severe discipline for
safety violations beginning in the spring of 2011, and
that its treatment of Tavares was consistent with that
practice. See, e.g., Synergy Gas Corp., 290 NLRB 1098,
1103 (1988) (finding that a single known instance of
disparate treatment was “an anomalous occurrence . . .
offset by the other instances in which severe disciplinary
action was taken”). We note in particular that several
other employees were disciplined for violating safety
rules, including (1) a final written warning issued to Zach
Hodges for improperly using a ladder; (2) a final warning
issued to Rylan Knightstep for failing to wear PPE; (3) a
termination notice to Zach Hodges for failing to use fall
protection; and (4) a termination notice issued to Eric
Sutton for, among other things, drilling a hole into the
back of an electrical outlet.
Finally, there is no dispute that the Respondent’s
safety rules were not enforced before the spring of 2011.
To the extent Local 6171 implies that the spring 2011
enforcement was undertaken because of the employees’
union activity, that issue is not before the Board. The
Regional Director dismissed a charge alleging that
stricter enforcement of the safety rules violated the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Dish Network Corporation,
Englewood, Colorado, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Dated, Washington, D.C. April 30, 2013
2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
______________________________________
Mark Gaston Pearce,
Chairman
______________________________________
Richard F. Griffin, Jr.,
Member
______________________________________
Sharon Block,
Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Arturo A. Laurel and David A. Foley, Esqs., for the Acting
General Counsel.
George Basara, Esq. (Buchanan, Ingersoll & Rooney P.C.), for
the Respondent.
Matthew Holder, Esq. (David Van Os &Associates, P.C.), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. On May 14
and 15, 2012, this case was heard in Fort Worth, Texas. The
underlying charges were filed by the Communication Workers
of America, Local 6171 (the Union) and Eric Sutton, an indi-
vidual. The resulting complaint alleged that Dish Network
Corporation (Dish Network or the Respondent) violated Section
8(a)(1), (3), and (4) of the National Labor Relations Act (the
Act) by, inter alia: maintaining various policies in its employee
handbook, which violated employees’ Section 7 rights; and
disciplining and subsequently firing Jorge Tavares because of
his union activities and testimony at a National Labor Relations
Board (the Board) hearing.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after thoroughly considering the
parties’ briefs, I make the following.
FINDINGS OF FACT
I. JURISDICTION
At all material times, Dish Network, a Colorado corporation,
with a corporate office in Englewood, Colorado, and multiple
national offices, including its office and place of business in
Farmers Branch, Texas (the facility), has provided satellite
television services to residential and commercial customers.
Annually, it purchases and receives at the facility goods valued
in excess of $50,000 directly from points located outside of the
State of Texas. Based on the foregoing, it admits, and I find,
that it is an employer engaged in commerce, within the mean-
ing of Section 2(2), (6), and (7) of the Act. It further admits,
and I find, that the Union is a labor organization, within the
meaning of Section 2(5) of the Act.
1 The complaint also alleged that Dish Network unlawfully denied
Sutton’s request for a union representative at a disciplinary interview.
This allegation was withdrawn at the hearing. (Tr. 431–432.)
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Dish Network operates roughly 160 offices throughout the
United States, including the facility, which services the north
Dallas area. The facility is supervised by Installation Manager
(IM) Michael Durham, who reports to General Manager (GM)
Gabriel Gonzales.2 Installation and service calls are performed
by technicians,3 who are directly supervised by Field Service
Managers (FSM).4
B. Election and the Union’s Certification5
In February 2010, the following employees at the facility
(the unit) selected the Union as their collective-bargaining rep-
resentative:6
All regular full-time technicians and warehouse employees
. . . , excluding all other employees, including quality assur-
ance employees, marketing and sales employees, commercial
technicians, managers, office clerical, guards and supervisors
as defined in the Act.7
C. Safety Rules
Technicians must wear personal protective equipment (PPE)
at jobsites, which includes: a hard hat or bump cap;8 safety
glasses; and gloves. (GC Exhs. 31, 39, 42.) They must follow
fall protection procedures, when scaling rooftops. (GC Exh.
32; R. Exhs. 1, 12.) These procedures include: notifying super-
vision; and wearing a five-point harness anchored to a D-ring.
(Id.). Technicians receive consistent safety training. (GC
Exhs. 31–32; R. Exh. 1.)
Management makes unannounced jobsite visits, in order to
confirm compliance with safety protocol.9 These visits gener-
ate a safety survey, which evaluates: PPE usage and fall protec-
tion practices. (GC Exhs. 37, 55, 58.) Safety survey grades
below 90 percent are deemed failing and trigger these conse-
quences:
Any employee receiving a failing score will receive a written
consultation indicating what caused the failing score, the im-
pact to business and the necessary corrective action (e.g.,
training, disciplinary action, termination).
. . . .
2 GM Gonzales also supervises Dish Network’s McKinney and
Denton, Texas offices.
3 Technicians are also identified by their formal title, Residential
Field Service Specialists. (See GC Exh. 61.)
4 FSMs are directly supervised by IMs.
5 I take judicial notice of the underlying representation case informa-
tion from the Board’s website, which contains the Regional Director’s
Report on Objections and Recommendations in Case 16–RC–10920,
and
connected
Docket
Activity
Report.
See
http://www.nlrb.gov/case/16–RC–10920;
http://www.nlrb.gov/cases-
decisions/case-decisions/regional-election-decisions.
6 On May 19, 2010, the Board certified the Union as the exclusive
representative of the unit.
7 There are approximately 50 employees in the unit.
8 A bump cap is a baseball cap that contains a hard plastic insert.
9 Management is required to conduct at least two safety surveys per
technician per month.
3
DISH NETWORK CORPORATION
[D]isciplinary policy should be followed for failing safety
surveys.
. . . .
Employees [not using] . . . fall protection will be issued a final
consultation. Terminations may be approved if other serious
violations occur simultaneously.
(GC Exh. 37.)
1. Haphazard historical enforcement of safety rules
Ryan Theiss, a former technician, credibly testified that dur-
ing his tenure he neglected the safety rules, without disciplinary
consequences.10 He stated that he was mainly supervised by
FSM Michael Thompson. He reported that, during safety sur-
veys, FSM Thompson ignored safety violations and passed
him.11 (See GC Exh. 19.) He indicated that during his proba-
tion he observed other technicians openly disregarding safety
rules, without consequence.
Wesley Mays, a customer, credibly testified that Dish Net-
work installed satellite service at his home in March 2011.
(See GC Exhs. 8, 44.) He stated that the technician, Jose Rod-
riguez, installed a satellite dish on his roof, without wearing a
safety harness or protective eyewear.
Technician Tavares, who was eventually fired for not follow-
ing safety rules, credibly stated that during his tenure manage-
ment frequently ignored safety violations. He added that he
and his coworkers, as a result, routinely failed to wear PPE, or
employ fall protection procedures.
FSM Thompson, who was employed from 2005 through Oc-
tober 2011, credibly acknowledged that he often overlooked
many safety lapses. He brazenly admitted that he created
phony safety surveys, which awarded passing grades at jobsites
that were never visited.
2. Renewed enforcement of safety rules
GM Gonzales credibly testified that he began supervising the
facility in February 2011.12 He stated that when he took it over
the facility was nationally ranked as one of Dish Network’s
worst performing offices.13 The performance factors that con-
tributed to this abysmal ranking included: job completion, pro-
duction, trouble calls, customer satisfaction, safety, attrition,
and cost ratings. He stated that he responded to this dilemma
by commencing a multipronged campaign designed to improve
performance, which stressed stricter adherence to rules and
policy. Concerning safety, he averred that he decided to rem-
edy this issue via re-education and, if needed, disciplinary ac-
tion. His safety campaign included meetings, newsletters, and
one-on-one discussions. He indicated that, in February, he told
IM Durham that safety was a top priority.14 He stated that his
10 Although it is unclear when his tenure ended, he started in early
2011.
11 He estimated that FSM Thompson visited his jobsites and ob-
served him without PPE at least 10 times.
12 All dates herein are in 2011, unless otherwise stated.
13 The facility placed 160 out of 163 offices.
14 The facility is now nationally ranked at 64 and morale has sharply
improved.
concentration on safety prompted the firing of FSM Rodney
Hodge, resignation of FSM Thompson, and termination of sev-
eral technicians, including Tavares, for safety, attendance, and
other reasons. This chart demonstrates the notable rise in sepa-
rations during the initial months of GM Gonzales’ tenure:
Quarter
Separations of
Technicians15
% Increase in
Comparison
1st Quarter 2011
1st Quarter 2011
4
2nd Quarter 2011
916
125%
3rd Quarter 2011
917
125%
4th Quarter 2011
4
0%
1st Quarter 2012
5
25%
(GC Exh. 61.)
Former technician Theiss credibly testified that, in February,
IM Durham announced that safety policies were now “black
and white” and would be rigidly enforced. He recalled IM
Durham telling technicians that they needed to change their
safety practices.18
Former FSM Thompson credibly stated that he resigned
from his position because he was unable to get along with IM
Durham, and that this conflict was partially prompted by the
magnified focus on safety policy. Regarding this matter, he
stated:
The guys needed to be safe . . . . It’s just to go . . . with it not
being a big deal to talking about it for a few days and then,
wham, I'm going to fire you, I thought that was a little too
abrupt.
(Tr. 418.) He indicated that at the end of his tenure he began
enforcing safety policy more rigorously. He acknowledged that
the safety culture eventually changed, and technicians began
wearing PPE and employing fall protection measures. He
agreed that GM Gonzales and IM Durham were universally
rigid with everyone. He said that IM Durham, a former U.S.
Marine, ran the facility inflexibly and that GM Gonzales trig-
gered a “bunch of terminations.” (Tr. 413.)
D. Tavares’ Discharge
1. Union activity and knowledge
Tavares credibly testified that he supported the Union’s 2010
campaign. He stated that, at that time, former FSM Hodge
asked him whether he supported the Union, which he denied.
15 Terminations include voluntary resignations.
16 On May 10, 2011, Zach Hodges was fired for not following fall
protection procedures. (U. Exh. 17.) On April 20, 2011, Rylan Knight-
step received a final written warning for, inter alia, failing to wear PPE.
(R. Exh. 5.) He was later terminated for attendance issues.
17 On July 20, 2011, Eric Sutton was fired for, inter alia, damaging a
customer’s home, and poor workmanship. (R. Exh. 6.) He had previ-
ously received a written warning, and was under a performance coach-
ing plan. (Id.)
18 He stated that, in spite of this proclamation, IM Durham later
caught him without PPE, and failed to take action. He added that, in
mid-January 2012, FSM Michael Byrd observed him and technician
Dustin Keller without PPE and failed to take disciplinary action.
4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
He indicated that he volunteered to serve on the Union’s bar-
gaining committee in March, after technician Juan Zamarron
relinquished his position.19 He stated that he attended two bar-
gaining sessions before being fired; the first was on March 29,
and the second was on July 28. He added that he testified for
the Union at a May unfair labor practice (ULP) hearing. He
stated that, by that point, union support had plummeted and
employees were seeking to decertify the Union.
2. Safety rules
Tavares conceded that he was aware that Dish Network had
PPE and fall protection rules. He signed acknowledgments,
which certified that he attended various safety training sessions.
(See GC Exhs. 30–32.) He stated that he, nevertheless, rou-
tinely failed to wear PPE or follow fall protection policy.
3. June 3 final warning
On June 3, Tavares received the following final written
warning:
On 5/21 . . . [t]he Installation Manager visited . . . Tavares in
the field . . . . [who,] accessed the roof and admitted not using
fall protection.
On 5/26 . . . Tavares was . . . working with a little giant . . .
without PPE . . . . When [he] . . . was asked to put on his PPE
. . . , he [said] . . . “that it was slowing me down”
. . . and to “go ahead and fail me.”
. . . .
On 6/2 . . . Tavares was . . . working on . . . [an] extension
ladder without . . . PPE . . . . Jorge said that he had just re-
moved his PPE before climbing up.
. . . .
These are serious safety infractions and Jorge cannot ignore
. . . safety rules.
(GC Exh. 21.) The final warning proclaimed that “further vio-
lations of policy will result in termination.” Tavares did not
dispute violating safety policy on these dates,20 or insubordi-
nately inviting management to, “go ahead and fail me.”21 Re-
garding his failure to wear protective headwear, he dismissively
said, “I can’t, the bump cap gets sweaty and stinky, and I took
it off.” (Tr. 175.) He related, however, that this warning caused
him to begin following safety policy.
4. July 29 discharge
On July 29, Tavares was fired for the following incident:
On 7/23 . . . Tavares was observed working with the Little
Giant ladder without PPE (no hard/bump cap, no safety
glasses, no gloves) and he left the [drivers] side door of the
van unlocked. When . . . asked where the PPE was he replied
that his bump cap had just fallen off; however,
19 He averred that Zamarron, who had been issued a final warning,
resigned because he thought that his job was being jeopardized by his
union activity.
20 He recognized that he had contradictorily stated in a sworn affida-
vit that he was wearing PPE. (Tr. 198–99.)
21 (See Tr. 239.)
. . . [he] was observed on the second rung of the Little Giant
with no safety glasses or gloves on.
(GC Exh. 23.)
a. Tavares’ account regarding July 29
Tavares testified that while on a ladder he heard IM Dur-
ham’s voice and abruptly turned, which caused his bump cap
and safety glasses to fall. (Tr. 186.) He insisted, however, that
he was wearing gloves. He contended that he perspires pro-
fusely, which causes his bump cap to become slippery and apt
to fall off.
b. Further disciplinary and performance issues
On February 21 and May 11, he received performance
coaching plans, which raised several serious deficiencies in his
installation work, customer service, and productivity, and
warned that ongoing issues could result in his termination. (R.
Exh. 3; U. Exh. 15.) On May 18, he received a final written
warning for poor attendance. (U. Exh. 16.)
c. Dish Network’s position
GM Gonzales testified that he decided to terminate Tavares
on the basis of the following reasons: (1) he received a final
written warning for three serious safety violations shortly be-
fore his firing; (2) he received extensive prior training about
safety rules and was aware that safety had been elevated to a
top priority; and (3) he committed the underlying offense, and
responded by fabricating an incredible story about his bump
cap falling off.
IM Durham stated that, on July 23, he observed Tavares
working without PPE and witnessed that his van was left
unlocked. He stated that he did not believe Tavares’ claim that
his bump cap had innocently fallen off, and that, even if it had,
he was obligated to promptly replace it, which was not at-
tempted. At the hearing, he tried on a bump cap, bent over, and
demonstrated that the bump cap remained on his head while
bending.
d. Credibility resolution
Inasmuch as Tavares testified that he was wearing PPE be-
fore it became innocently dislodged, and IM Durham stated
otherwise, I must make a credibility resolution. For several
reasons, I credit IM Durham. First, concerning demeanor, IM
Durham was straightforward, honest, and equally helpful on
direct and cross-examination. Second, Tavares’ assertion that
his PPE fell off is inconsistent and implausible for several rea-
sons: (1) it is improbable that he turned his head with such
torque that his PPE rocketed off; (2) his claim is inconsistent
with IM Durham’s hearing demonstration, which showed his
bump cap staying affixed, while bending over; (3) his claim is
inconsistent with former FSM Thompson’s credible testimony
that bump caps are not easily dislodged; and (4) Tavares’ claim
that his bump cap innocently fell off his head is undercut by his
subsequent failure to make any effort to retrieve it (i.e., if he
was genuinely committed to following the PPE rule, he would
have promptly retrieved and replaced his PPE). Lastly, I find
Tavares’ actions to be consistent with his brazen invitation to
5
DISH NETWORK CORPORATION
management to “go ahead and fail me” for not wearing PPE on
May 26.
E. Employee Handbook Policies
The employee handbook is nationally disseminated to em-
ployees,22 and electronically posted on Dish Network’s intranet
site, Starbase.23 (GC Exh. 42.) Employees who violate the
handbook are subject to discipline. (Id. at 16.) The handbook’s
Social Media, Contact with Media, and Contact with Govern-
ment Agencies policies are at issue herein.
1. Social media
DISH Network regards Social Media—blogs, forums, wikis,
social and professional networks, . . . as a form of communi-
cation . . . . When the company wishes to communicate pub-
licly . . . it has well-established means to do so. Only those
officially designated by DISH Network have the authorization
to speak on behalf of the Company through such media.
. . . .
You may not make disparaging or defamatory comments
about DISH Network, its employees, officers, directors, ven-
dors, customers, partners, affiliates or our, or their, prod-
ucts/services.
. . . .
Unless you are specifically authorized to do so, you may not
. . . .
Participate in these activities with DISH Net-
work resources and/or on Company time.
(GC Exh. 42 at 13.)
2. Contact with the media
The Corporate Communications Department is responsible
for any disclosure of information, to the media regarding
DISH Network . . . . Unless you receive prior authorization . .
. you must direct inquiries to the Corporate Communications
Department. Similarly, you have the obligation to obtain the
written authorization of the Corporate Communications De-
partment before engaging in public communications regard-
ing DISH Network or its business activities.
(GC Exh. 42 at 12.)
3. Contact with government agencies
Phone calls or letters from government agencies may occa-
sionally
be
received
. . . . The General Counsel must be notified . . . of any com-
munication . . . concerning the Company.
. . . .
22 Counsel for Dish Network represented that the Employee Hand-
book governs its “facilities nationwide.” (See GC Exh. 54; Tr. 283–
285.) Former FSM Thompson, Tavares and GM Gonzales (Tr. 504)
credibly testified about the national dissemination of this document.
23 At the hearing, counsel for the Acting General Counsel amended
the complaint to aver that the employee handbook is disseminated to
Dish Network’s employees on a national basis. (Tr. 432–34.)
If written correspondence is received, notify your manager
immediately and forward the correspondence to the General
Counsel . . . . The correspondence should not be responded
to unless directed [to do so].
. . . .
If phone contact is made,
. . . .
Provide the individual with the General Coun-
sel's name and number . . . if requested, but do not
engage in any further discussion.
Immediately . . . . notify a supervisor.
(GC Exh. 42 at 13.)
III. ANALYSIS
A. Employee Handbook Policies
The employee handbook policies at issue violated the Act.24
In analyzing whether a work rule violates Section 8(a)(1), the
Board has held that:
[T]he appropriate inquiry is whether the rule would reasona-
bly tend to chill employees in the exercise of their Section 7
rights. If the rule explicitly restricts Section 7 rights, it is
unlawful. If it does not, “the violation is dependent upon a
showing of one of the following: (1) employees would rea-
sonably construe the language to prohibit Section 7 activity;
(2) the rule was promulgated in response to union activity; or
(3) the rule has been applied to restrict the exercise of Section
7 rights.”
Costco Wholesale Corp., 358 NLRB No. 106, slip op. at 2
(2012) (citations omitted).
1. Social media
The Social Media policy is unlawful on two grounds. First,
it banned employees from making “disparaging or defamatory
comments about DISH Network.” The Board has held that
analogous electronic limitations on negative commentary vio-
lated the Act. See, e.g., Costco Wholesale Corp., 358 NLRB
No. 106, slip op. at 2 (“statements posted electronically . . . that
damage the Company”); Knauz BMW, 358 NLRB No. 164
(2012) (“courtesy rule,” which prohibited “disrespectful” con-
duct and “language which injures the image or reputation of the
Dealership”).25 Second, the policy banned employees from
engaging in negative electronic discussion during “Company
time.” The Board has found that equivalent rules, which ban
union activities during “Company time” are presumptively
invalid because they fail to clearly convey that solicitation can
still occur during breaks and other nonworking hours at the
enterprise. See Laidlaw Transit, Inc., 315 NLRB 79, 82
(1994); Hyundai America Shipping Agency, 357 NLRB No. 80
24 These allegations are listed under pars. 7 and 11 of the complaint.
25 See also Southern Maryland Hospital, 293 NLRB 1209, 1222
(1989), enfd. in relevant part 916 F.2d 932, 940 (4th Cir. 1990) (“de-
rogatory attacks on . . . hospital representative[s]”); Claremont Resort
& Spa, 344 NLRB 832 (2005) (“negative conversations about associ-
ates and/or managers”).
6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(2011) (rule threatening discipline for “[p]erforming activities
other than Company work during working hours”); Nor-
ris/O'Bannon, 307 NLRB 1236, 1245 (1992).
2. Contact with the media
The Contact with the Media policy violates the Act because
it requires employees to obtain prior authorization from man-
agement before speaking about Dish Network to the media or at
public meetings. See Trump Marina Associates, 355 NLRB
585 (2010). The Board has held that preauthorization require-
ments unduly interfere with employees’ Section 7 rights to
“improve terms and conditions of employment” by seeking
assistance “outside the immediate employee-employer relation-
ship.” See Eastex, Inc., v. NLRB, 437 U.S. 556, 565–566, 569–
570 (1978); Valley Hospital Medical Center, 351 NLRB 1250,
1252 (2007); Handicabs, Inc., 318 NLRB 890, 896 (1995),
enfd. 95 F.3d 681 (8th Cir. 1996).
3. Contact with government agencies
The Contact with Government Agencies policy is unlawful,
inasmuch as it bans unauthorized communication with govern-
ment agencies concerning Dish Network. The Board has found
that analogous policies, which could be rationally construed by
workers as limiting independent communications with Board
agents, were unlawful. See Knauz BMW, 358 NLRB No. 164,
supra.
A. Tavares’ Final Written Warning and Termination
Dish Network lawfully disciplined and fired Tavares. The
complaint alleged that these personnel actions violated Section
8(a)(3) and (4). 26
1. Section 8(a)(3)
a. Legal framework
The framework described in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), sets forth the appropriate standard:
Under that test, the General Counsel must prove by a prepon-
derance of the evidence that union animus was a substantial or
motivating factor in the adverse employment action. The
elements commonly required to support such a showing are
union or protected concerted activity by the employee, em-
ployer knowledge of that activity, and union animus on the
part of the employer.
If the General Counsel makes the required initial
showing, the burden then shifts to the employer to prove,
as an affirmative defense, that it would have taken the
same action even in the absence of the employee's union
activity. To establish this affirmative defense, “[a]n em-
ployer cannot simply present a legitimate reason for its ac-
tion but must persuade by a preponderance of the evidence
that the same action would have taken place even in the
absence of the protected activity.”
26 These allegations are listed under pars. 9, 10, 12, and 13 of the
complaint.
Consolidated Bus Transit, 350 NLRB 1064, 1065–1066
(2007) (citations omitted).
If the employer’s proffered defenses are found to be a pre-
text, i.e., the reasons given for its actions are either false or not
relied on, it fails by definition to show that it would have taken
the same action for those reasons, and there is no need to per-
form the second part of the Wright Line analysis. However,
further analysis is required if the defense is one of “dual moti-
vation,” that is, the employer defends that, even if an invalid
reason might have played some part in its motivation, it would
have taken the same action against the employee for permissi-
ble reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411
F.3d 212, 223 (D.C. Cir. 2005).
b. Prima facie case
Counsel for the Acting General Counsel made a prima facie
Wright Line showing. Tavares had significant union activity:
he was the only unit employee serving on the Union’s collec-
tive-bargaining team, when he was fired; he attended negotia-
tions on March 29 and July 28; he testified on behalf of the
Union at a May 23 ULP hearing; and aided the initial organiz-
ing drive. Concerning knowledge, Dish Network was mini-
mally aware that he was serving on the bargaining team and
appeared at the ULP hearing. Animus can be inferred from the
relatively close timing between Tavares’ service on the bar-
gaining team and ULP hearing appearance, and his discipline
and firing (i.e., roughly 4 months). See La Gloria Oil & Gas
Co., 337 NLRB 1120 (2002), enfd. 71 Fed. Appx. 441 (5th Cir.
2003).
c. Affirmative defense
Dish Network established that it would have taken the same
personnel actions against Tavares, even absent his protected
activity. First, GM Gonzales credibly testified that, beginning
in February, he abruptly changed the facility’s safety culture
via education, monitoring and, if needed, discipline.27 This
drastic change prompted the separations of several technicians,
including Tavares,28 FSM Hodge’s firing, and FSM Thomp-
son’s resignation. Tavares, a union adherent, was swept up in
this safety transition, which affected Union and nonunion sup-
porters, and even management. Second, concerning the final
warning, which was based on three distinct and admitted safety
violations, it is noteworthy that Dish Network opted to disci-
pline him only once for all three violations, instead of three
times for each incident. If it were truly focused on eradicating
a Union adherent, it would have generated three distinct disci-
27 Although Theiss was caught violating safety policy after this tran-
sition and was not disciplined, I am persuaded that Dish Network sub-
stantially tightened its intolerance for safety violations in a non-
discriminatory manner following GM Gonzales’ takeover, even though
some outliers continue to exist. I do not find, however, that the exis-
tence of such outliers exculpate Tavares. Moreover, even assuming
arguendo that the Theiss incident demonstrated disparate treatment, I
remain convinced that Tavares would still have been terminated, absent
his protected activity for the reasons described in the affirmative de-
fense analysis above.
28 As stated, during the second and third quarters of 2011, the num-
ber of technicians separated climbed by 125 percent.
7
DISH NETWORK CORPORATION
plines and effected an immediate removal. This willingness to
offer rehabilitation by subjecting him to a less onerous penalty
contradicts an invidious intent.29 Finally, concerning the termi-
nation, Tavares committed the misconduct, failed to admit cul-
pability and concocted his defense, had just received a final
warning for the other safety violations, responded to that warn-
ing insubordinately,30 and had a deficient performance and
attendance record. These factors, which would universally
trigger virtually anyone’s firing, demonstrate that Tavares
would have received the same treatment, even absent his pro-
tected activity. Under such circumstances, GM Gonzales logi-
cally determined that continued rehabilitative efforts would
prove fruitless and termination was warranted.
2. Section 8(a)(4)
For the same reasons described under the 8(a)(3) analysis
above, the 8(a)(4) allegations should be dismissed. An em-
ployer violates Section 8(a)(4), when it fires an employee for
filing charges, or for testifying, or for being subpoenaed to
testify, at a Board proceeding. See 29 U.S.C. 158; Grand Rap-
ids Die Casting Corp., 279 NLRB 662, 664 (1986). Such vio-
lations are analyzed under the Wright Line framework. See
Syracuse Scenery & Stage Lighting Co., 342 NLRB 672
(2004). Dish Network, as stated, would have warned and fired
Tavares absent his protected activity.31
CONCLUSIONS OF LAW
1. Dish Network is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Dish Network violated Section 8(a)(1) of the Act by main-
taining a Social Media policy in its employee handbook, which
prohibited employees from electronically posting critical com-
mentary about Dish Network on or outside of “Company time.”
4. Dish Network violated Section 8(a)(1) of the Act by a
29 In making this finding, I note that the record almost completely
lacks union animus, beyond the limited animus that can be gleaned
from the unlawful employee handbook policies.
30 As stated, Tavares insubordinately told management to “go ahead
and fail me,” at that time.
31 Counsel for the Acting General Counsel requested sanctions
against Dish Network under Bannon Mills, 146 NLRB 611 (1964). The
request was based on his contention that Dish Network failed to fully
respond to a subpoena request concerning employee safety surveys.
He argued that the number of safety surveys that were received paled in
comparison to the number of surveys that should have existed, if Dish
Network had performed the requisite two surveys per technician per
month required by its rules. His request is denied for several reasons.
First, Dish Network’s counsel credibly represented that he produced all
safety surveys in his possession. Second, beyond mathematical infer-
ence (i.e., two surveys per month x number of technicians x number of
months), Counsel for the Acting General Counsel failed to concretely
show that Dish Network possessed or destroyed additional surveys.
Third, given that it is undisputed that, before GM Gonzales’ takeover,
safety surveys were inaccurate and even invented, it follows that the
preservation of such surveys would be equally haphazard. Moreover,
even if these surveys existed, they would so unreliable, given their
fraudulent history, that one would be hard-pressed to demonstrate being
prejudiced by their absence.
maintaining a contact with the media policy in its employee
handbook, which required employees to obtain prior authoriza-
tion from management before speaking about it to news media
outlets or at public meetings.
5. Dish Network violated Section 8(a)(1) of the Act by a
maintaining a contact with government agencies policy in its
employee handbook, which banned employees from communi-
cating with government agencies about it, without first obtain-
ing management’s approval.
6. The unfair labor practices set forth above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Dish Network committed unfair labor
practices, it is ordered to cease and desist and to take certain
affirmative action designed to effectuate the policies of the Act.
Given that its policies are maintained on a companywide basis,
it shall be ordered to post a notice at all of its facilities where
the unlawful policies have been, or are, in effect. See Longs
Drug Stores California, 347 NLRB 500, 501 (2006); Guards-
mark, LLC, 344 NLRB 809, 812 (2005). Its duty to rescind or
modify the unlawful policies is governed by Guardsmark LLC,
supra.32 It shall also nationally distribute remedial notices elec-
tronically via email, intranet, internet, or other appropriate elec-
tronic means to its employees, in addition to the traditional
physical posting of paper notices, if it customarily communi-
cates with workers in this manner. See J. Picini Flooring, 356
NLRB No. 9 (2010).33
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended34
ORDER
The Respondent, Dish Network Corporation, Englewood,
Colorado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a Social Media policy in its employee hand-
book, which prohibited employees from electronically posting
critical comments about DISH Network on or outside of “Com-
pany time.”
(b) Maintaining a Contact with the Media policy in its em-
32 “The Respondent may comply with our Order by rescinding the
unlawful provisions and republishing its employee handbook without
them. We recognize, however, that republishing the handbook could
entail significant costs. Accordingly, the Respondent may supply the
employees either with handbook inserts stating that the unlawful rules
have been rescinded, or with new and lawfully worded rules on adhe-
sive backing which will cover the old and unlawfully broad rules, until
it republishes the handbook without the unlawful provisions. Thereaf-
ter, any copies of the handbook that are printed with the unlawful rules
must include the new inserts before being distributed to employees.”
Guardsmark, supra at 812 fn. 8.
33 Although Counsel for the Acting General Counsel has requested a
notice reading remedy, such relief is unwarranted. Standard remedial
relief will adequately remedy the unfair labor practices at issue here.
34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee handbook, which required employees to obtain authori-
zation from management before speaking about its organization
to news media outlets or at public meetings.
(c) Maintaining a Contact with Government Agencies policy
in its employee handbook, which banned employees from
communicating with government agencies about its organiza-
tion, without first obtaining management’s approval.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind or modify the language in the following provi-
sions of its employee handbook
1. The Social Media policy to the extent that it prohibited
employees from electronically posting critical comments about
its organization on or off “Company time.”
2. The Contact with the Media policy to the extent that it re-
quired employees to obtain prior authorization from manage-
ment before speaking about its organization to news media
outlets or at public meetings.
3. The Contact with Government Agencies policy to the ex-
tent that it bans employees from communicating with govern-
ment agencies about its organization, without first obtaining
management’s approval.
(b) Furnish all current employees with inserts for the em-
ployee handbook that:
1. Advise that the unlawful rules have been rescinded,
or
2. Provide the language of lawful rules or publish and
distribute a revised Employee Handbook that
i. Does not contain the unlawful rules, or
ii. Provides the language of lawful rules.
(c) Within 14 days after service by the Region, post at each
of its facilities in the United States, where its employee hand-
book is in effect, copies of the attached notice, marked “Ap-
pendix.”35 Copies of the notice, on forms provided by the Re-
gional Director for Region 16, after being signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, it shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
35 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
former employees employed it at any time since August 29,
2011.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that it
has taken to comply.
Dated Washington, D.C. November 14, 2012
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain provisions in our employee handbook,
which ban employees from electronically posting negative
comments about our organization on or off “Company time.”
WE WILL NOT maintain provisions in our employee handbook,
which require employees to obtain prior authorization from us
before speaking about our organization to news media outlets
or at public meetings.
WE WILL NOT maintain provisions in our employee handbook,
which bar employees from communicating with government
agencies about our organization, without first obtaining our
consent.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights set forth
above.
WE WILL rescind or modify the language in the following
provisions of our employee handbook:
1. The Social Media policy to the extent that it prohibits you
from electronically posting negative comments about our or-
ganization on or off “Company time.”
2. The Contact with the Media policy to the extent that it re-
quires you to obtain prior authorization from us before speaking
about our organization to news media outlets or at public meet-
ings.
3. The Contact with Government Agencies policy to the ex-
tent that it bars you from speaking to government agencies
about our organization, without first obtaining our approval.
WE WILL furnish all of you with inserts for the current em-
ployee handbook that:
1. Advise that the unlawful provisions, above have
been rescinded, or
9
DISH NETWORK CORPORATION
2. Provide the language of lawful provisions, or pub-
lish and distribute revised Employee Handbooks that:
a. Do not contain the unlawful provisions, or
b. Provide the language of lawful provisions.
DISH NETWORK CORPORATION