Dish Network Corporation

National Labor Relations Board - Administrative Judge Opinions

Jan 23, 2017

16-CA-173719 (N.L.R.B. Jan. 23, 2017)

JD–02–17
North Richland Hills, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DISH NETWORK CORPORATION
and CASES 16–CA–173719
16–CA–173720
COMMUNICATION WORKERS OF 16–CA–173770
AMERICA, AFL-CIO 16–CA–177314
16–CA–177321
16–CA–178881
16–CA–178884
David A. Foley, Charles Guzak and Karla R. Mata, Esqs.,
for the General Counsel.
Brian D. Balonick, Brian A. Casal and David J. Strauss, Esqs.
(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. This hearing was held in Fort
Worth, Texas over 7 days in August and September 2016. The complaint alleged that the
Dish Network Corporation (the Dish or Respondent) violated Sections 8(a)(1), (3), and (5) of
the National Labor Relations Act (the Act) by, inter alia: threatening employees; bargaining in
bad faith with the Communication Workers of America, AFL–CIO (the Union); implementing
a final offer in the absence of an impasse; making unilateral changes in the wages, health
insurance coverage, and leave provided to its Union employees; and constructively
discharging 17 Union employees. The controlling facts in this case are mainly undisputed.
On the entire record,1 including my observation of the witnesses’ demeanors, and after
considering post-hearing briefs, I make the following

1 The Charging Party’s November 17, 2016 motion, which seeks to correct the mislabeling of 2 exhibits,
has been GRANTED. CP Exh. 122, as a result, which is a letter dated May 29, 2014, shall remain as
originally marked, and CP Exh. 122, a 9-line spreadsheet, shall be revised and newly marked as
CP Exh. 122A.
JD–02–17
2
FINDINGS OF FACT2
I. JURISDICTION
5
At all material times, Dish, a Colorado corporation, with a corporate office in
Englewood, Colorado, and numerous branch offices, including its Farmers Branch and North
Richland Hills, Texas offices (the FB and NRH hubs), has provided satellite television
services. Annually, it purchases and receives at the FB and NRH hubs goods worth more than
$50,000 directly from points outside of Texas. Based upon the foregoing, it admits, and I 10
find, that it is an employer engaged in commerce, within the meaning of Section 2(2), (6), and
(7) of the Act. I also find that the Union is a labor organization, within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES15
The FB and NRH hubs warehouse supplies, and dispatch technicians for installations
and repairs in the Dallas-Fort Worth area. This litigation involves the unionization of these
workers.
A. Introduction of QPC and Unionization20
The FB and NRH employees unionized after Dish introduced the Quality Performance
Compensation System (QPC) at their hubs. See (GC Exh. 132). This novel, incentive-based
pay system significantly changed their existing pay system. See (CP Exh. 62). Moreover,
although QPC offered enhanced employees’ productivity bonuses, it cut base wage rates, 25
which created overall dissatisfaction and led to the Union’s organizing effort.
B. FB and NRH Bargaining Units
In 2011, the Union became the designated exclusive collective-bargaining 30
representative of the following group of workers employed at the FB hub (the FB unit):3
INCLUDED: All regular full-time and part-time technicians and warehouse
employees ….
35
EXCLUDED: All other employees including quality assurance employees,
marketing and sales employees, commercial technicians, managers, office
clerical, guards and supervisors as defined in the Act.
40

2 Unless otherwise stated, factual findings arise from joint exhibits, stipulations, and undisputed
evidence.
3 There are approximately 24 employees in the FB unit.
JD–02–17
3
It also, almost simultaneously, became the designated representative of the same set of
workers employed at the NRH hub (the NRH unit):4
C. Bargaining History
5
1. Background
Following the Union’s certification, the parties commenced joint bargaining for an
initial contract for the FB and NRH units. The Union was initially represented in bargaining
by Donna Bentley and, thereafter, was represented by Sylvia Ramos. Dish was initially 10
represented by attorney George Basara and, thereafter, was represented by his law partner,
Brian Balonick. It would be an understatement to say that bargaining over QPC and other
matters proved keenly difficult.5 Although roughly 25 bargaining sessions were held, a
contract never resulted.
15
Given that employees’ organizing efforts were connected to QPC, it is not surprising
that QPC played a major bargaining role. It is startling, however, that, even though the parties
swapped positions on QPC during negotiations, common ground on this issue was never
reached. Ironically, the Union, which initially wanted to abolish QPC, later sought to retain
it, once employees became comfortable and discovered that it increased their wages. Dish, 20
which initially wanted to keep QPC, later desperately fought to eliminate it, after it concluded
that employees were making too much money under this pay system.
Additionally, because bargaining demands often change with employee turnover, it is
noteworthy that the FB and NRH units had extremely high attrition rates.6 In 2014, the FB 25
unit had an attrition rate of 31.4%, whereas the NRH unit’s rate was 30.5%. (R. Exh. 53). In
2015, the FB unit had an attrition rate of 19.6%, while the NRH unit’s rate was 13.1%. (R.
Exh. 53; CP Exh. 120).
2. Allegedly Closed Matters730
Before Dish declared impasse and bargaining ceased, the parties reached oral
agreement on many issues. By March 2013, they reached unsigned resolutions on, inter alia,
these subjects: job classifications; Union recognition; travel; leave; 401K plan; and benefits.
(GC Exh. 42). On June 19, 2013, Bentley summarized the status of negotiations and emailed 35
Basara that 5 issues remained: dues deductions; grievance/arbitration; seniority; wages; and
contracting. (R. Exh. 6).

4 There are approximately 21 employees in the NRH unit.
5 Beyond substantive difficulties, Union negotiators Ramos and Bentley complained about Basara’s hard
bargaining tactics. They averred that this stymied negotiations, which were already tenuous given their
nascent relationship. Their testimony was corroborated by bargaining notes and correspondence.
6 Priorities often change as incumbents leave, and are replaced by new hires with different goals.
7 These issues are identified as “allegedly” closed because, although the parties ceased bargaining about
these matters, Basara reserved the right to later revisit the validity of any allegedly closed issue, “[if]
there’s something significant in bargaining that would make … [him] alter that particular agreement.”
(Tr. 1105).
JD–02–17
4
3. Events Leading to Dish’s Impasse Declaration
a. Dish’s November 18, 2014 Final Proposal
5
On this date, the parties held what eventually turned out to be their last in-person
bargaining session. At this time, Dish tendered its first in a series of “final proposal[s]” to the
Union, which proposed, inter alia, discontinuing QPC, and set forth this hourly wage
schedule:8
10
FSS I FSS II FSS III FSS IV ISP Sr. ISP
$13.00 $14.00 $16.00 $17.00 $11.50 $12.00
(GC Exh. 2). While Dish rejected the Union’s proposals on dues deductions,
grievance/arbitration, successorship, subcontracting, severance and seniority, it agreed to
provide smart home sales and clothing stipends. (R. Exh. 4).
15
Although the parties had meetings scheduled for December 8 and 9, Ramos canceled
due to the passing of a family member. (GC Exh. 21). She offered, however, alternative
dates in January and February 2015, which Dish rejected. Basara, instead, conditioned
reconvening on the Union replying in writing to his November 18 proposal and warned that, if
it refused, impasse would be declared. (Id.). 20
b. Union’s December 9, 2014 Proposal
The Union complied with Basara’s threat, submitted a counteroffer, and again
requested a meeting. The Union’s new proposal represented a substantial compromise, 25
inasmuch as it partially capitulated on QPC, a major roadblock. To this end, the Union
creatively proposed a 2-tierred wage system, where incumbents retained QPC, and new hires
received the traditional wage schedule Dish was seeking. (GC Exhs. 4, 5). Although this
proposal did not represent the complete abolishment of QPC that Dish desired, it still
provided cause for optimism. As noted, Dish’s technicians had a very high attrition rate,30
which meant that the Union’s proposal made it probable that new hires receiving non-QPC
rates would soon become the majority in the FB and NRH units, as the attrition rate
continued. (R. Exh. 53 (annual attrition ranging from 116% to 13%)). This, in turn, meant
that Dish would have attained most of what it wanted on wages in the short term, and would
have set the stage for a fuller resolution on QPC in later bargaining (i.e., eventually abolishing 35
QPC would have become an easier selling point in later bargaining, when only a narrow
minority paid under QPC remained). The Union also offered counterproposals on: dues
deduction; grievance procedure; seniority; subcontracting; successorship; smart home sales;
and severance pay. (GC Exhs. 4, 5).
40

8 “FSS” means field service specialist, i.e., technician, while “ISP” means inventory specialist, i.e.,
warehousemen.
JD–02–17
5
c. Email Exchanges About Scheduling Another Bargaining Session
On December 9, 2014, Basara proposed to meet the following week. (GC Exh. 98).
His email conspicuously failed to declare an impasse, or state that scheduling another session
would be futile. On December 11, Ramos replied that January 2015 was her earliest available 5
slot. (GC Exh. 23). Basara expressed shock about her short-term unavailability and refused
to meet. (GC Exh. 23). On December 12, Ramos repeated her offer to meet in January.
(GC Exh. 25).
d. Dish’s December 18, 2014 Final Offer10
On this date, Basara reneged on his earlier meeting offer and terminated bargaining:
I … have met … on many occasions in an effort to reach an agreement….
[We] were able to reach agreement on Articles 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 15, 15
16, 17, 18, 19, 20, 21, 23 and 26….
On November 19, 2014, your bargaining team provided me with their
proposals on the remaining issues….
20
On that same day, DISH responded … with a final offer ….
On …, December 4, … you … suffered a death in your family and …the
bargaining sessions were cancelled….
25
On December 9, … you emailed … [your] response to my final offer …. I
offered to meet with you … in December …. [but] you … could not meet until
January….
I have now reviewed your proposals and offer the following responses:30
Article 4 Dues Deduction. DISH will not agree to your proposal ….
Article 5 Grievance Procedure …. DISH rejects your proposal ….
35
Article 13 Seniority. DISH rejects the Union's proposal ….
Article 15 Wages and Compensation. DISH rejects the … wage proposal ….
Article 22 Subcontracting…. The Union's proposal is rejected.40
Article 24 Sale of Operation…. DISH will not accept [the] proposal ….
Article 25 Smart Home Sales. DISH … agreed … to … Smart Home Sales
….45
JD–02–17
6
Article 27 Participatory Management …. This proposal is rejected.
Article 28 Severance. DISH rejects this proposal….
I have attached … DISH's last best and final offer for your consideration. We 5
believe that bargaining has been exhausted and that your recent proposals do
not reflect … significant movement from … [your] November 18, 2014
[proposal]. We ask that you take our final offer to your members and let us
know if the proposal is accepted. Once we know whether DISH's final offer
is accepted or rejected, we can discuss if further bargaining is warranted.10
(GC Exh. 3) (italicized emphasis added). No bargaining sessions were thereafter scheduled.
e. Union’s December 30, 2014 Email
15
On December 30, 2014, Ramos replied as follows:
[T]he Union insists on meeting and bargaining over its counterproposals ….
Your written response … does not take the place of meeting and bargaining.
CWA is the exclusive representative of the employees and CWA will be the 20
sole judge of when to present proposals to the Union membership for a
vote….
The Union is available to meet on January 6, 7, 8, 9, 22 and 23. If none of
these dates is available … please inform me of any other [available] dates …. 25
(GC Exh. 8) (emphasis added).
f. Dish’s December 31, 2014 Reply
30
On this date, Basara sent the following reply:
[I]t does not appear that you are willing to take our final offer to your … unit
….
35
I will not be representing DISH in the future. My partner, Brian Balonick will
be taking over for me.
I have apprised him of the status of negotiations and he will be getting back to
you sometime after the new year…. [H]e has a trial … in … [early] January.40
(GC Exh. 9).
g. Dish’s Belated January 8, 2016 Letter
45
Balonick, however, failed to contact the Union in early 2015, as promised. He,
JD–02–17
7
instead, inexplicably waited 13 months, before contacting Ramos in early 2016, when he sent
this letter:
Basara left … at the beginning … [of 2015], [and] I took over for him ….
5
[H]is November 19, 2014, letter … presented DISH's … final offer. Your
letters … in December indicated that you rejected our final offer and were
unwilling to take it to your bargaining unit. It has been one year since your
last correspondence …. Please let us know by January 15, 2016, whether you
accept our final offer. Because the … November 19, 2014 [offer is], … our 10
final offer, it does not appear … that further bargaining would be productive.
If we do not hear from you by January 15, we will assume that you … reject
our final offer….
(GC Exh. 10) (emphasis added). 15
h. Union’s January 13, 2016 Letter
On this date, Ramos replied as follows:
20
Your letter … completely misrepresents … negotiations….
I departed from CWA's normal practice … on December 9, 2014 [by
providing] written counterproposals in advance of the next meeting. I made it
clear that [this was] ... a convenience to facilitate … discussions at the next 25
meeting that remained to be scheduled…. I [did not] suggest that sending you
the proposals would substitute for meeting and conferring…. I [did not] waive
the Union's right to meet and confer over our counterproposals. To the
contrary, my December 9 communication emphasized the need to meet and
bargain.30
Your implication that CWA has let this matter languish for a year …. is
preposterous. In my December 30, 2014 communication to … [Basara,] I
offered 6 dates to meet in January 2015 ….
35
In … response … he informed me that you would be taking over … [and]
would be getting back in touch with me sometime after the new year….
It has been over a year since I suggested dates for the next session …. Please
send me suggested dates ….40
(GC Exh. 11).
4. Declaration of Impasse
45
On February 2, 2016, Balonick sent this reply:
JD–02–17
8
It appears … that the Union's position remains the same ….
[T]he parties have been bargaining since 2011. In December 2014, … Basara
communicated … that bargaining had been exhausted. For over 12 months, 5
the parties have remained rigid …. We view your January 13 letter as further
evidence … [of] a standstill. If you disagree, please explain your position ….
Otherwise, DISH will implement its last, best and final proposal….
(GC Exh. 18). On February 3, Ramos dissented and re-requested bargaining. (GC Exh. 26).10
5. Implementation of the Final Offer
On April 4, 2016, Balonick sent the following letter to the Union:
15
DISH … delivered its … final offer … in December 2014….
[T]he Union rejected DISH's … final offer … in December 2014…. [T]he
parties have exhausted bargaining…. In our February 2, 2016 letter …, DISH
requested … explanation as to why the Union believes that bargaining has not 20
been exhausted. In response, the Union, once again, asked to meet to bargain.
At this point, DISH believes that further bargaining would be futile ….
Therefore, DISH is implementing its … final offer as proposed … in
December 2014. This last, best, and final offer includes the following 25
provisions:
 DISH will eliminate QPC and move [to the] … [final offer] rate[s] ….
 Full-time[rs] … will … be scheduled to work forty … hours per
week….30
 Time spent in local travel … shall be treated as work time.
 An employee … will receive reimbursement for all reasonable,
necessary and ordinary business expenses …, as outlined in the …
Travel Policy….
 Paid time off benefits are the same for Union and non-union 35
employees….
 The Company will offer its bargaining unit employees the same or
similar benefits as those offered to non-union technicians … [as
follows]:
o Dental Plan40
o Vision Plan
o Life Insurance Plan (and Supplemental Life Insurance)
o Short Term Disability Plan
o Long Term Disability Plan
o Health Care45
o Employee Stock Purchase Plan
JD–02–17
9
o 401K Plan….
DISH plans to implement this … final offer no later than April 23, 2016….
(GC Exh. 19); see also (GC Exhs. 27–29).5
6. April 5 and 6, 2016 Presentations
On these dates, Dish held meetings with the FB and NRH units, and announced
implementation of the final offer. (Tr. 97–100; GC Exh. 114). Employee Chris Moss said 10
that Director of Human Resources Lisa Wodell stated that, “whatever wage level we are at is
where we would be.” (Tr. 761). Employee Santiago Martinez corroborated his account.
(Tr. 772–73). Regional Director Monty Beckham did not recall this statement, and averred
that employees consistently remained eligible for promotions. (Tr. 917–18).
15
Because Moss and Santiago testified that Wodell effectively threatened that
employees would no longer receive promotions, and Beckham stated otherwise, a credibility
determination must be made. For several reasons, Beckham has been credited. First, he was
straightforward, and had a strong recall of the meeting. Moss and Santiago had somewhat
weaker recollections. Second, given that there is no evidence that Dish subsequently limited 20
promotions or “leveling up,” it is less probable that this comment was actually made.
7. April 6, 2016 Text
On this date, Field Service Manager Hanns Obere errantly sent this text message to 25
NRH unit employee Blake Daniels:
The union is gone. Techs will be affixed hourly rates, no pi. Level 4 will earn
17 dollars an hour. They will earn like the rest of the company if they transfer
to other offices which they encourage. They have QPC till the 23rd. The two 30
offices are gradually closing. We will be dispatched to other offices or a new
one will be started. They would rather have the techs quit en masse….
(GC Exh. 31) (spelling and grammar as in original). Obere stated that he was solely
forecasting what he thought could happen when QPC ended; he denied, however, that he was 35
told this by management. See (CP Exh. 87). Daniels disseminated the text to his coworkers.
Beckham subsequently emailed affected employees, and disavowed the text. (R. Exh. 8).
8. April 23, 2016 Final Offer Implementation
40
On this date, Dish implemented its final offer, with the exception of its health
insurance changes, which were enacted in July. (Tr. 824). This resulted in the creation of a
combined vacation and sick leave pool.9 It also meant that QPC had effectively ended, and
wages were deeply cut. The health insurance changes included: annual individual deductibles

9 In the past, such leave was stored in separate banks.
JD–02–17
10
rising from $1,300 to $2,500; annual family deductibles rising from $2,600 to $5,000; annual
out-of-pocket expense limits for individuals rising from $5,500 to $6,000; and annual out-of-
pocket expense limits for families rising from $11,000 to $12,000. (GC Exhs. 123–124).
D. Mass Resignations105
Following implementation, the following 17 employees resigned because of the wage
and health insurance reductions: Marcus Tillman; David Dingle; Justin Ripley; Kenneth
Daniel; Bryce Benge; Salvador Bernardino; Preston Dutton; Robert Thompson; John Carson;
Scott Dehart; Robert MacDonald; Aaron Mason; Aaron Kubesch; Severo Hernandez; John 10
Burns; Christopher Little; and Michael Cater11 (the resigning employees).12 The financial
consequences associated with implementation, as noted, were significant, with unit employees
receiving, on average, a 30% wage loss,13 and deep health insurance cuts. (GC Exhs. 123–24;
CP Exh. 100).
15
E. Bargaining over Prior Terminations and the Firing of Dakota Novak
On May 29, 2014, the Union asked Dish to afford it notice and an opportunity to
bargain regarding any suspensions or discharges of FB and NRH unit employees. (CP Exh.
122). On June 13, 2014, Basara assented, and informed the Union that “we will provide you 20
with advance notice of any suspensions, demotions or discharge.” (GC Exh. 15). On October
24, 2014, Basara implemented this policy and notified the Union about the contemplated
discharge of Seth Hawkins, and on October 31, 2014, the Union requested bargaining. (GC
Exh. 14; CP Exh. 125). On October 31, 2014, Basara similarly informed the Union about the
contemplated discharge of Kevin Goforth, and on November 6, 2014, the Union requested 25
bargaining. (GC Exhs. 16–17). On November 18, 2014, the parties negotiated over these
disciplinary actions; thereafter, Dish implemented final discipline. (CP Exh. 132). Dish later
fired Dakota Novak on February 19, 2016, without notification or bargaining with the Union.
F. July 6, 2016—Waeland Thomas Statements 30
Supervisor Thomas testified that he made these comments to unit employees:
[W]hen you're at work … do not discuss the union … including QPC with the
new guys. When you're off work, you can do what you want …. 35

10 Complaint par. 12(e) was amended at the hearing to add the constructive discharges of Severo
Hernandez, Aaron Mason, Aaron Kubesch, John Burns and Christopher Little. (Tr. 35).
11 On October 21, 2016, the parties moved to reopen the record and enter a joint stipulation about Michael
Cater. Their joint stipulation provided that Cater, an NRH unit technician, learned about Obere’s text
and resigned because of the unilateral wage cut. The motion is GRANTED; complaint par. 12(e) has
been amended accordingly.
12 See (Tr. 272-74 (McDonald); tr. 422 (Dutton); tr. 436 (Kubesch); tr. 525 (Mason); tr. 649 (Little);
tr. 675-76 (Daniel); tr. 694-95 (Dingle); tr. 729-30 (Benge); tr. 737-38 (Bernardino); tr. 748 (stipulation
regarding Tillman, Thompson, Burns, Ripley, and Carson); CP Exhs. 86, 100 (Dingle, Kubesch, Cater,
Dutton, Dehart, McDonald, Mason, Benge, Carson, Hernandez, and Cater)).
13 This calculation was based upon 2015 figures (i.e., $62,132 to $43,364 is a 30% decrease).
(CP Exh. 120).
JD–02–17
11
(Tr. 237).
Employee Carl Miles testified, however, that Thomas placed a much greater restriction
on employees than admitted. He recalled that Thomas issued this more stringent directive:
5
Just don’t say anything about the Union to the new guys. [D]on’t mention
QPC. They’re happy getting paid $13.00 an hour, and they will get phone calls
from Dish ... asking them if we said anything, and it could lead to termination.
(Tr. 657). 10
I credit Miles over Thomas. Miles was corroborated by the parties’ stipulation.14 It is
also implausible that Dish would have stipulated, and lost a chance to cross-examine this key
witness, if his testimony were incredible. Finally, Miles was credible, and straightforward.
15
III. Analysis
A. 8(a)(5) Allegations15
1. Unilateral Implementation of the Final Offer 20
a. Legal Precedent
In collective bargaining, there must be a “willingness among the parties to discuss
freely and fully their respective . . . demands, and, when these are opposed, to justify them on 25
reason.” NLRB v. George P. Pilling & Son Co., 119 F.2d 32, 37 (3d Cir. 1941). The
determination as to whether a party’s bargaining conduct evinces a true desire to reach an
agreement is made by “drawing inferences from the conduct of the parties as a whole.” NLRB
v. Insurance Agents’ Union, 361 U.S. 477, 498 (1960). “Specific conduct, while it may not,
standing alone, amount to a per se failure to bargain in good faith, may when considered with 30
all of the other evidence, support an inference of bad faith.” Continental Ins. Co. v. NLRB,
495 F.2d 44, 48 (2d Cir. 1974).
A premature declaration of impasse generally constitutes bad-faith bargaining. CJC
Holdings, Inc., 320 NLRB 1041, 1044–1046 (1996), enfd. mem. 110 F.3d 794 (5th Cir. 35
1997). Impasse can only be reached, “‘after good-faith negotiations have exhausted the
prospects of concluding an agreement,’ and there is no realistic possibility that continuation of
discussion at that time would be fruitful.” Id. at 1044 (quoting Television Artists AFTRA v.
NLRB, 395 F.2d 622, 624 (D.C. Cir. 1968), enfg. Taft Broadcasting Co., 163 NLRB 475
(1967)). Moreover, a genuine impasse exists, when neither party will move from their 40
position, in spite of their best efforts to reach agreement. Grinnell Fire Protection Systems
Co., 328 NLRB 585 (1999), enfd. 236 F.3d 187 (4th Cir. 2000). The party asserting impasse

14 They stipulated that another employee witness, if called, would have corroborated Miles. (Tr. 687-89).
The transcript, which inaccurately states “weight loss statement,” instead of the “Waeland Thomas
statement” to describe this issue, is hereby corrected.
15 These allegations are listed under complaint pars. 10, 12, 13 and 16.
JD–02–17
12
has the burden of proof on this issue. Outboard Marine Corp., 307 NLRB 1333, 1363 (1992),
enfd. mem. 9 F.3d 113 (7th Cir. 1993). Although an employer can implement its final offer at
impasse, it violates the Act when it does so prematurely. Jano Graphics, Inc., 339 NLRB 251
(2003).
5
b. Analysis
For several reasons, Dish did not satisfy its burden of proving that an impasse existed
in April 2016. It, as a result, violated the Act by implementing its final offer on April 23,
2016. 10
First, the Union estopped bargaining from reaching an impasse, when it offered a
significant QPC compromise in its December 9, 2014 proposal. (GC Exhs. 4–5). Although
the Union’s proposal created the “realistic possibility that continued discussions would be
fruitful,” Dish summarily rejected this concession, without bargaining. The Union, as noted, 15
offered a substantial giveback, when it proposed a 2-tierred wage system, where incumbents
kept QPC, and new hires lost it.16 This “white flag” offered a possible resolution on
bargaining’s thorniest issue, and created the real possibility of fruitful discourse, which was
inexplicably left by Dish to wither on the vine for over a year before it declared impasse. CJC
Holdings, Inc., supra. If Dish had been willing to meet about this substantial giveback, the 20
give and take of bargaining might have led everyone closer to an agreement; Dish’s failure to
explore the Union’s capitulation on this key issue, by definition, precluded impasse. See, e.g.,
Royal Motor Sales, 329 NLRB 760, 772 (1999); Grinnell Fire Protection Systems Co., supra,
328 NLRB at 585, 585–86.
25
Second, Dish similarly prevented legitimate impasse, when it repeatedly conditioned
ongoing negotiations on a non-mandatory subject of bargaining, i.e., the Union submitting
Dish’s final offer to the FB and NRH units for a ratification vote.17 The Union steadfastly
rejected this condition,18 which has effectively stymied bargaining since December 2014.
The Board has held that conditioning ongoing bargaining on a non-mandatory subject of 30
bargaining (e.g., a ratification vote) taints any subsequent impasse, and precludes

16 The potential savings associated with the Union’ proposed 2-tierred wage system was significant, given
Dish’s high attrition rates. (R. Exh. 53 (annual attrition rates from 2013 to 2015 ranging from 116% to
13%)). Given this attrition, the Union’s willingness to abandon QPC for new hires, meant that in a
short time, the majority of the FB and NRH units would have likely have turned over and no longer
earn QPC wages. This counter offered Dish much of what it sought on QPC, and would have likely set
in motion the wholesale elimination of QPC in future bargaining for a successor contract. At a
minimum, however, this concession was worthy of discourse, which, by definition, precluded impasse.
17 See, e.g., (GC Exh. 3 (on December 18, 2014, Dish stated that, “[w]e ask that you take our final offer to
your members and …. [o]nce we know whether … [it] is accepted or rejected, we can discuss if further
bargaining is warranted.”); GC Exh. 9 (on December 31, 2014, Dish stated that, “[i]t does not appear
that you are willing to take our final offer to your bargaining unit,” and thereafter, refused to schedule
an in-person bargaining session); GC Exh. 10 (on January 8, 2016, Dish stated that, “[y]our letters … in
December [2014] indicated that you rejected our final offer and were unwilling to take it to your
bargaining unit.”); (GC Exh. 28) (Dish’s April 19, 2016 letter)).
18 See, e.g., (GC Exh. 8 (On December 30, 2014, the Union stated that, “CWA is the exclusive
representative of the employees and … will be the sole judge of when to present proposals to the Union
membership for a vote.”)).
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13
implementation of a final offer.19
Third, the lengthy hiatus between the November 2014 bargaining session and the April
2016 implementation of the final offer weighs heavily against an impasse finding. Airflow
Research & Mfg. Corp., 320 NLRB 861, 862 (1996)(“[a]nything that creates a new possibility 5
of fruitful discussion ... breaks an impasse: ... [including] the mere passage of time.”);
Circuit-Wise, Inc., 309 NLRB 905, 921 (1992)(14-month bargaining hiatus). Given Dish’s
high turnover, a lengthy hiatus suggests that, even assuming arguendo that an impasse existed
in 2014, which it did not, Dish’s high attrition rate could have broken the gridlock by 2016, as
the FB and NRH units turned over and new employees might have called for a revised Union 10
bargaining strategy, which could have brought bargaining to closure.20
Fourth, the change in Dish’s bargaining agent amplified the possibility of agreement,
which also cuts against an impasse finding. Simply put, Basara, a hard-bargainer, was
substituted for Balonick, a more diplomatic representative. This trade increased the chance 15
for positive discourse, and prevented impasse. See, e.g., Airflow Research & Mfg. Corp.,
supra, 320 NLRB at 862 (“possibility for a break of the deadlock was further heightened by
the change in the person representing the Union for negotiations…. [which] created the
possibility of a new approach toward the subjects of the earlier impasse); KIMA-TV, 324
NLRB 1148, 1152 (1997). 20
Fifth, Dish’s unwillingness to reschedule the December 2014 bargaining session
further undercuts an impasse finding. It logically follows that, if the parties were
continuously at impasse since November 2014 as Dish avers, veteran labor attorney Basara
would never have agreed to meet in December 2014, or offered alternative dates after Ramos 25
cancelled. Moreover, it is eminently fair to assume that he would not have wasted his time or
client’s resources by meeting during an extant impasse, following multiple years of

19 See, e.g., Jano Graphics, Inc., supra (company’s continued insistence of a permissive subject of
bargaining, a ratification vote by union employees, and its later refusal to bargain tainted subsequent
impasse); Movers & Warehousemen's Assn., 224 NLRB 356, 357 (1976), enfd. 550 F.2d 962 (4th Cir.),
cert. denied 98 S.Ct. 75 (1977) (a ratification procedure was a non-mandatory subject of bargaining,
which would not permit a company to lawfully lock out employees in support of demands on that
subject); Houchens Market, 155 NLRB 729 (1965), enfd. 375 F.2d 208 (6th Cir. 1967) (employee
ratification is not a mandatory bargaining subject on which an employer may insist to impasse);
Grosvenor Resort, 336 NLRB 613 (2001) (employer engaged in bad-faith bargaining by, inter alia,
insisting to impasse on a non-mandatory subject of bargaining, e.g., the scope of the bargaining unit).
Although the Board has held that, under exceptional circumstances, insistence upon a non-mandatory
bargaining topic does not preclude lawful impasse (see ACF Industries, LLC, 347 NLRB 1040 (2006)),
this narrow condition is limited to those cases where the non-mandatory insistence did not cause the
impasse. Cf. National Gypsum Co., 359 NLRB No. 116, slip op. 27-28 (2013) (insistence on
ratification vote, which occurred after impasse, logically could not cause impasse). In the current case,
however, the Union protested this non-mandatory bargaining condition over a year before Dish’s 2016
declaration of impasse and implementation of the final offer, which is unlike the National Gypsum
scenario, where insistence on the non-mandatory subject occurred after impasse.
20 In a year, the composition of FB and NRH units changed significantly; this might have resulted in these
modified units concluding that the retention of QPC was no longer sustainable, or newer employees
creating a different mandate. This, minimally, met the “new possibility of fruitful discussion” criteria,
which precluded impasse.
JD–02–17
14
bargaining. His declaration of impasse seemed to follow Ramos’ unwillingness to meet in
December 2014, in accordance with his own schedule and expected departure from his law
firm. Basara’s actions, as a result, appeared more retaliatory than substantive, and are
inconsistent with those of a labor law professional handling an impasse. Bottom Line
Enterprises, 302 NLRB 373 (1991) (employer cannot react to reasonable cancellation of 5
session by declaring impasse and threatening implementation).
In sum, several circumstances demonstrate that Dish failed to meet its burden of proof
on impasse. These circumstances were: Dish’s unwillingness to meet and bargain after the
Union offered a substantial QPC compromise; the unlawful conditioning of bargaining on 10
ratification; the passage of time; the change in negotiators; and Dish’s unwillingness to
reschedule a previously scheduled session.21 Dish was, as a result, not privileged to
unilaterally implement its final offer. See generally Jano Graphics, Inc., supra.
2. Ongoing Failure to Negotiate Since January 13, 2016 15
Dish violated Section 8(a)(5) by ignoring the Union’s ongoing request to bargain since
January 13, 2016. (GC Exh. 11). Given that the parties were not at impasse, Dish was under
an ongoing obligation to bargain over wages, hours, and other terms and conditions of
employment regarding the FB and NRH units. Storer Communications, Inc., 294 NLRB 105620
(1989) (statutory duty to bargain encompasses affirmative duty to make prompt arrangements,
within reason, for meeting and conferring); Rutter-Rex Mfg. Co., 86 NLRB 470 (1949).
3. Novak’s Firing22
25
Dish unlawfully failed to bargain with the Union over Novak’s firing. The Board has
described an employer’s obligation to bargain with a newly established union as follows:
Sections 8(a)(5) and (d) of the Act obligate an employer to bargain with the
representative of its employees in good faith with respect to “wages, hours and
other terms and conditions of employment.” . . . . Section 8(a)(5) also obligates 30
an employer to notify and consult with a union concerning changes in terms
and conditions of employment before imposing such changes. . . . When a
majority of the unit employees have selected the union as their representative
in a Board-conducted election, the obligation to bargain, at least with respect to
changes in terms and conditions of employment, commences . . . [on] the date 35
of the election.
San Miguel Hospital Corp., 357 NLRB 326, 326–27 (2011) (citations omitted). In order to
trigger a bargaining obligation, unilateral changes must be material, substantial and
significant. Crittenton Hospital, 342 NLRB 686 (2004). 40

21 Many of these factors, even if considered in isolation, precluded impasse.
22 The General Counsel, in a motion dated November 17, 2016, moved to withdraw the portion of this
complaint allegation, which relied upon a theory of violation under Alan Ritchey, 359 NLRB No. 40
(2012). See also Total Security, 364 NLRB No. 106 (2016). The motion is GRANTED.
JD–02–17
15
Dish created a new workplace disciplinary rule in June 2014, when in response to the
Union’s request, it agreed to “provide . . . advance notice of any suspensions, demotions or
discharge.” (GC Exh. 15). Thereafter, it notified, and bargained with, the Union before
enacting terminations on 2 occasions in late-2014 (e.g., Hawkins and GoForth). (GC Exhs.
14, 16, 17; CP Exhs. 125, 132). Dish then abandoned this policy, when it later fired Novak,5
without notice or pre-implementation bargaining. Given that a disciplinary rule is a
mandatory subject of bargaining, and that the elimination of notice is a material change, Dish
violated Section 8(a)(5) by changing this rule without notice or bargaining. United Cerebral
Palsy of New York City, 347 NLRB 603, 607 (2005) (disciplinary procedures are mandatory
bargaining topics).10
B. 8(a)(1) Allegations23
1. Wodell Statement
15
Wodell did not make the statement alleged in the complaint. Her commentary at the
April meetings, therefore, did not violate the Act.
2. Obere Statement
20
Dish violated Section 8(a)(1), when Obere sent a text to Daniels, which stated, inter
alia, that, “the union is gone,” the FB and NRH offices are closing, and Dish would prefer its
technicians to quit. See, e.g., Concrete Co., 336 NLRB 1311, 1316 (2001) (“union is gone”);
Federated Logistics & Operations, 340 NLRB 255, 256 (2003) (unsubstantiated predictions
of closure due to union activities); Amalgamated Transit Union, Local 689, 363 NLRB No. 25
43 (2015) (inviting resignations because of union activities is an implied discharge threat);
Mesker Door, Inc., 357 NLRB 591 (2011) (same).24
3. Thomas Statement
30
Thomas’ violated Section 8(a)(1), when he: told employees not to discuss the Union
with trainees under the threat of discipline, without restricting this ban to working areas and
time; and threatened employees that trainees would be called to gauge compliance. See, e.g.,
Restaurant Corp. of America v. NLRB, 827 F.2d 799, 806 (D.C. Cir. 1987)(“employer may
not generally prohibit union solicitation . . . during nonworking times or in nonworking 35
areas”); Food Services of America, Inc., 360 NLRB No. 123, slip op. at 7 (2014)(same);
Stevens Creek Chrysler, 353 NLRB 1294, 1295–96 (2009)(unlawful impression of

23 These allegations are listed under complaint pars. 11 and 14. At the hearing, the General Counsel
amended the complaint to add paragraph 11(c), which alleged that Waeland Thomas threatened
employees with discipline, if they discussed Union issues with trainees, and created the impression the
their Union activities were under surveillance, when he told employees that someone would be calling
the trainees to determine if they had been approached about the Union. (Tr. 36-37).
24 Although Dish contends that Beckham’s disavowal erased the unlawfulness of the text, this contention
is invalid. Effective repudiation must be timely, unambiguous, specific, adequately publicized, free
from other illegal acts, and accompanied by some assurance against repeat offenses.
Passavant Memorial Area Hospital, 237 NLRB 138 (1978). Because Dish’s disavowal was
accompanied by the other violations at issue herein, it was ineffective.
JD–02–17
16
surveillance, where reasonable employees would assume that their union activities are being
monitored.).
C. 8(a)(3) Allegations25
5
1. Constructive Discharges
a. Legal Precedent
Regarding constructive discharges, the Board has held as follows:10
[I]t must be borne in mind that a constructive discharge is not a discharge at all
but a quit which the Board treats as a discharge because of the circumstances
which surround it …. Normally, such situations arise in two factual contexts.
In the first [i.e., Category 1], with knowledge of its employees' participation in 15
union or other protected concerted activities, an employer harasses the
individual to the point that his job conditions become intolerable and, as a
result, the employee quits. In such circumstances, a nexus between the
working conditions and the individual's protected activities must be shown and
the imposed burdens must be intended to cause an altering of the worker's 20
working conditions. If both factors are present, a constructive discharge will
be found …. In the second factual situation [i.e., Category 2], an employer
confronts an employee with the Hobson's choice of either continuing to work
or foregoing the rights guaranteed to him under Section 7 of the Act. In such
a circumstance, his choice must be clear and unequivocal and not left to 25
inference.
Remodeling by Oltmanns, 263 NLRB 1152, 1162 (1982), enfd. 719 F.2d 1420 (8th Cir. 1983)
(emphasis added and citations omitted).
30
b. Analysis

Dish violated Section 8(a)(3), when it constructively discharged the 17 resigning
employees. These employees were presented with the “Hobson’s choice” of continuing to
work versus forgoing their Section 7 rights.26 This is a Category 2 constructive discharge 35
scenario, where Dish’s violation of their Section 7 rights resulted in their wages being cut by
30% and their health insurance costs being greatly increased. It is undisputed the resigning
employees left because of these changes, after effectively being left with the “Hobson’s
choice” of continuing to work under greatly diminished conditions that flowed from the
violation of their Section 7 rights.27 Control Services, 303 NLRB 481, 485 (1991) (unlawful 40

25 These allegations are listed under complaint pars. 12 and 15.
26 Dish violated their Section 7 rights by, inter alia, implementing its final offer without an impasse,
making unilateral changes, refusing to bargain with the Union, and conditioning bargaining on a
ratification vote.
27 Dish’s contentions in its brief that the employees were not constructively discharged because the
General Counsel did not show that its unilateral changes “were imposed because of the employee's
JD–02–17
17
cuts in wages, hours and health insurance benefits resulted in a category 2 constructive
discharge); White-Evans Service Co., 285 NLRB 81, 82–83 (1987) (same).
2. Unilateral Implementation of Final Offer
5
Given that Dish violated Section 8(a)(5), when it unilaterally implemented its final
offer absent a good-faith impasse, a finding that this action also violated Section 8(a)(3)
violation would be cumulative and not impact the remedy. It is, thus, unnecessary to decide
this redundant allegation. Tri-Tech Services, 340 NLRB 894, 895–96 (2003); Sygma Network
Corp., 317 NLRB 411 (1995).10
Conclusions of Law
1. Dish is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.15
2. The Union is a labor organization, within the meaning of Section 2(5) of the
Act.
3. The Union is, and at all material times was, the exclusive bargaining 20
representative for the following appropriate unit of employees at the FB hub:
INCLUDED: All regular full-time and part-time technicians and warehouse
employees employed at Dish’s facility in Farmers Branch, Texas.
25
EXCLUDED: All other employees including quality assurance employees,
marketing and sales employees, commercial technicians, managers, office
clerical, guards and supervisors as defined in the Act.
4. The Union is, and at all material times was, the exclusive bargaining 30
representative for the following appropriate unit of employees at the NRH hub:
INCLUDED: All regular full-time and part-time technicians and warehouse
employees employed at Dish’s facility in North Richland Hills, Texas.
35
EXCLUDED: All other employees including quality assurance employees,
marketing and sales employees, commercial technicians, managers, office
clerical, guards and supervisors as defined in the Act.
5. Dish violated Section 8(a)(1), when:40

union activities” is without merit, inasmuch as Dish errantly characterizes this matter as a Category 1
constructive discharge, when it still remains, a Category 2 constructive discharge case, which has no
such intent requirement.
JD–02–17
18
a. Obere told employees that “the union is gone,” that their offices would
close because of their Union activities, and that Dish would prefer technicians employed at its
unionized facilities to quit.
b. Thomas threatened employees that they would be disciplined, if they 5
discussed the Union with new hires.
c. Thomas created the impression of surveillance, when he told
employees that someone would call trainees to confirm that they did not discuss the Union
with them. 10
6. Dish violated Section 8(a)(3), when it constructively discharged the following
17 employees: Marcus Tillman; David Dingle; Justin Ripley; Kenneth Daniel; Bryce Benge;
Salvador Bernardino; Preston Dutton; Robert Thompson; John Carson; Scott Dehart; Robert
MacDonald; Aaron Mason; Aaron Kubesch; Severo Hernandez; John Burns; Christopher 15
Little; and Michael Cater.
7. Dish violated Section 8(a)(5), when it:
a. Failed to meet and bargain with the Union at reasonable times for the 20
purposes of collective bargaining since January 13, 2016, after prematurely declaring an
impasse, regarding the units described above.
b. Refused to bargain with the Union by conditioning bargaining upon a
ratification vote.25
c. Implemented its final offer on April 23, 2016 and, thereafter,
unilaterally changed terms and conditions of employees in the above-described units without
having reached agreement with the Union and in the absence of a valid bargaining impasse.
30
d. Unilaterally changed the wages, health insurance coverage, leave
benefits, and other terms and conditions of employment since April 23, 2016 in the above-
described units.
e. Unilaterally changed its disciplinary policy and discharged unit 35
employee Dakota Novak, by failing to afford the Union pre-implementation notice of his
contemplated discipline, and an opportunity to bargain.
8. The unfair labor practices set forth above affect commerce within the meaning
of Section 2(6) and (7) of the Act.40
Remedy
Having found that Dish committed unfair labor practices, it is ordered to cease and
desist and to take certain affirmative action designed to effectuate the Act. Having found that 45
Dish violated Section 8(a)(3) by constructively discharging the 17 employees described
JD–02–17
19
above, it is ordered to offer them full reinstatement to their former jobs or, if such jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed. It is further ordered to make them whole for any
loss of earnings and other benefits suffered as a result of their discrimination. Backpay shall
be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at 5
the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Moreover, in accordance
with King Soopers, Inc., 364 NLRB No. 93 (2016), it shall compensate them for their search-
for-work and interim employment expenses, if any, regardless of whether those expenses
exceed interim earnings. Search-for-work and interim employment expenses shall be 10
calculated separately from taxable net backpay, with interest at the rate prescribed in New
Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. It
is further ordered to compensate them for any adverse tax consequences associated with
receiving a lump-sum backpay award and to file with the Regional Director for Region 16 a
report allocating the backpay award to the appropriate calendar year. AdvoServ of New 15
Jersey, Inc., 363 NLRB No. 143 (2016). It is also ordered to remove from its files any
references to their unlawful discharges, and within 3 days thereafter to notify them in writing
that this has been done and that their unlawful constructive discharges will not be used against
them in any way.
20
Having found that Dish violated Section 8(a)(5) by prematurely declaring an impasse,
refusing to meet with the Union for collective-bargaining purposes, and conditioning meeting
with the Union on a non-mandatory subject of bargaining, it is ordered to, upon request by the
Union, bargain collectively and in good faith concerning terms and conditions of employment
of unit employees, and, if an understanding is reached, to embody it in a signed agreement. 25
Upon resumption of bargaining, it is further ordered to reinstate all tentative agreements
reached during contract negotiations. See Health Care Services Group, 331 NLRB 333
(2000).
Furthermore, having found that Dish violated Section 8(a)(5) by unilaterally changing 30
terms and conditions of employment for unit employees, which included eliminating QPC,
cutting wages, combining sick and vacation leave banks, and cutting health insurance
deductibles and caps, it shall, on request of the Union, retroactively restore any unilaterally
modified terms and conditions of employment, and rescind the unilateral changes it has made,
until such time as Dish and the Union reach an agreement for a new collective-bargaining 35
agreement, or a lawful impasse based on good-faith negotiations.28 It shall also be required to
make whole the unit employees for any loss of wages or other benefits suffered as a result of
the unilateral changes in the manner set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons,
supra, compounded daily as prescribed in Kentucky River, supra. With respect to its unilateral 40
termination of the unit employees' preexisting health care benefits, it shall restore, upon
request of the Union, the preexisting health care benefits and reimburse the unit employees for

28 Pressroom Cleaners, 361 NLRB No. 57 (2014), motion for reconsideration denied 361 NLRB No. 133
(2014). Nothing in this recommended order, however, shall be construed as requiring or authorizing
Dish to rescind any improvements in the unit employees' terms and conditions of employment unless
requested to do so by the Union. Adams & Associates, Inc., 363 NLRB No. 193 (2016).
JD–02–17
20
any expenses ensuing from its failure to continue the preexisting healthcare coverage, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981), such amounts to be computed in the manner set forth
in Ogle Protection, supra, with interest at the rate prescribed in New Horizons, supra,
compounded daily as prescribed in Kentucky River, supra.5
Additionally, having found that Dish violated Section 8(a)(5) by unilaterally changing
its disciplinary rule and consequently firing Novak, it shall offer him full reinstatement to his
former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed, discharging if 10
necessary any employees hired in his place. Novak shall also be made whole for any loss of
earnings he may have suffered due to his unlawful discharges. Backpay shall be computed in
accordance with F. W. Woolworth, supra, with interest at the rate prescribed in New Horizons,
supra, compounded daily as prescribed in Kentucky River, supra. Dish shall also be required
to expunge from its files any reference to Novak’s unlawful discharge and to notify him in 15
writing that this has been done. It is further ordered to compensate him for any adverse tax
consequences associated with receiving a lump-sum backpay award and to file with the
Regional Director for Region 16 a report allocating the backpay award to the appropriate
calendar year. Dish is, however, entitled to show, at a compliance proceeding, that it would
have discharged Novak under the preexisting terms and conditions, avoiding as to him any 20
reinstatement, expunction, and backpay obligation. See Adams & Associates, Inc., 363 NLRB
No. 193, slip op. at 11, fn. 17 (2016).
Finally, in addition to the traditional remedies discussed above, Beckham will read the
notice marked “Appendix” to FB and NRH unit employees, during work time, at the FB and 25
NRH hubs in the presence of a Board agent. A notice reading will counteract the coercive
impact of the instant violations, which were substantial. See McAllister Towing &
Transportation Co., 341 NLRB 394, 400 (2004). Dish shall also distribute remedial notices
electronically via text message, email, intranet, internet, or other appropriate electronic means
to its employees, in addition to the traditional physical posting of paper notices, if it 30
customarily communicates with workers in this manner. J Picini Flooring, 356 NLRB 11
(2010).
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended2935
ORDER
Dish Network Corporation, Farmers Branch and North Richland Hills, Texas, its
officers, agents, successors, and assigns, shall40
1. Cease and desist from

29 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended 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.
JD–02–17
21
a. Telling employees that “the union is gone.”
b. Threatening employees that the Farmers Branch and North Richland
Hills offices would close because they engaged in union or any other protected concerted
activities.5
c. Implicitly threatening employees with discharge by inviting their
resignations because they engaged in union or any other protected concerted activities.
d. Threatening employees that they will be disciplined, if they discuss the
Union with newly-hired employees. 10
e. Creating the impression that employees’ union or other protected
concerted activities were being monitored.
f. Constructively discharging or otherwise discriminating against its 15
employees for engaging in union or any other protected concerted activities.
g. Failing and refusing to meet and bargain at reasonable times with the
Union for collective bargaining as the exclusive collective bargaining representative in the
following appropriate units: 20
Farmers Branch bargaining unit
INCLUDED: All regular full-time and part-time technicians and warehouse
employees employed at Dish’s facility in Farmers Branch, Texas.25
EXCLUDED: All other employees including quality assurance employees,
marketing and sales employees, commercial technicians, managers, office
clerical, guards and supervisors as defined in the Act.
30
North Richland Hills bargaining unit
INCLUDED: All regular full-time and part-time technicians and warehouse
employees employed at Dish’s facility in North Richland Hills, Texas.35
EXCLUDED: All other employees including quality assurance employees,
marketing and sales employees, commercial technicians, managers, office
clerical, guards and supervisors as defined in the Act.
40
h. Refusing to bargain with the Union by conditioning future bargaining
upon the holding a ratification vote.
i. Implementing its final offer and unilaterally changing terms and
conditions of employees in the above-described units without reaching agreement with the 45
Union and in the absence of a valid bargaining impasse.
JD–02–17
22
j. Unilaterally changing the wages, health insurance coverage, leave
benefits, and other terms and conditions of employment for the above described units.
k. Unilaterally changing its disciplinary policy and discharging unit
employee Dakota Novak, by failing to afford the Union pre-implementation notice of his 5
contemplated discipline and an opportunity to bargain.
l. In any like or related manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed them by Section 7 of the Act.
10
2. Take the following affirmative action necessary to effectuate the policies of the
Act
a. Within 14 days from the date of this Order, offer the following 17
constructively discharged employees full reinstatement to their former jobs or, if such jobs no 15
longer exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed: Marcus Tillman; David Dingle; Justin Ripley;
Kenneth Daniel; Bryce Benge; Salvador Bernardino; Preston Dutton; Robert Thompson; John
Carson; Scott Dehart; Robert MacDonald; Aaron Mason; Aaron Kubesch; Severo Hernandez;
John Burns; Christopher Little; and Michael Cater. 20
b. Make the 17 constructively discharged employees whole for any loss of
earnings and other benefits suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision, compensate them for the adverse tax
consequences, if any, of receiving a lump-sum backpay award, and file with the Regional 25
Director, within 21 days of the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the appropriate calendar year.
c. Within 14 days from the date of this Order, remove from its files any
reference to these unlawful discharges of the 17 constructively discharged employees, and 30
within 3 days thereafter, notify them in writing that this has been done and that their
constructive discharges will not be used against them in any way.
d. On request by the Union, bargain with it as the exclusive bargaining
representative of our unit employees on terms and conditions of employment and, if an 35
understanding is reached, embody the understanding in a signed agreement.
e. On request by the Union, rescind the changes in the terms and
conditions of employment for the unit employees that were unilaterally implemented on and
after April 23, 2016, and restore the status quo ante until such time as the Respondent and the 40
Union reach an agreement for a new collective-bargaining agreement or a lawful impasse
based on good-faith negotiations.
f. Make the unit employees whole, with interest, for any losses sustained
as a result of the unilateral changes in terms and conditions of employment in the manner set 45
forth in the remedy section of this decision.
JD–02–17
23
g. Offer Novak full reinstatement to his former job or, if his job no longer
exist, to a substantially equivalent position, without prejudice to his seniority or any other
rights or privileges he previously enjoyed, unless it is shown that the Respondent would have
discharged him under the preexisting terms and conditions of employment.
5
h. Make Novak whole for any loss of earnings and other benefits suffered
as a result of his discharge, in the manner set forth in the remedy section of this decision,
compensate him for the adverse tax consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, a report allocating the backpay award to the 10
appropriate calendar year, unless it is shown that the Respondent would have discharged him
under the preexisting terms and conditions of employment.
i. Remove from its files any reference to the discharge of Novak, and
within 3 days thereafter notify the employees in writing that this has been done and that the 15
discharge will not be used against him in any way, unless it is shown that the Respondent
would have discharged him under the preexisting terms and conditions of employment.
j. Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated 20
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
25
k. Within 14 days after service by Region 16, post at its Farmers Branch
and North Richland Hills, Texas facilities copies of the attached notice marked “Appendix.”30
Copies of the notice, on forms provided by the Regional Director, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places, including all places where notices to employees 30
are customarily posted. In addition to physical posting of paper notices, notices shall be
distributed electronically, such as by text message, 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 to ensure that the notices are not
altered, defaced, or covered by any other material. If Dish has gone out of business or closed 35
the facilities involved in these proceedings, it shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by it at any time
since January 13, 2016.
l. Within 14 days after service by the Region, hold a meeting or meetings 40
during working hours at the FB and NRH hubs, which will be scheduled to ensure the widest

30 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–02–17
24
possible attendance of unit employees, at which time the attached notice marked “Appendix”
is to be read to its employees by Beckham in the presence of a Board agent.
m. 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 5
attesting to the steps that it has taken to comply.
Dated Washington, D.C. January 23, 2017
10
/41Z.---,
Robert A_ Ringler
Administrative Law Judge
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT tell you that “the union is gone,” threaten that the Farmers Branch and
North Richland Hills offices will close because you engaged in union or any other protected
concerted activities, or implicitly threaten your discharge by inviting you to resign because
you engaged in union or any other protected concerted activities.
WE WILL NOT threaten that you will be disciplined, if you discuss the Union with newly-
hired employees, or create the impression that your union activities or any other protected
concerted activities are being monitored.
WE WILL NOT constructively discharge or otherwise discriminate against you for engaging
in union or any other protected concerted activities.
WE WILL NOT fail and refuse to meet and bargain at reasonable times with the Union as
the exclusive collective bargaining representative of its employees in these appropriate units:
Farmers Branch bargaining unit
INCLUDED: All regular full-time and part-time technicians and warehouse
employees employed at its facility located in Farmers Branch, Texas.
EXCLUDED: All other employees including quality assurance employees,
marketing and sales employees, commercial technicians, managers, office
clerical, guards and supervisors as defined in the Act.
North Richland Hills bargaining unit
INCLUDED: All regular full-time and part-time technicians and warehouse
employees employed at its facility located in North Richland Hills, Texas.
EXCLUDED: All other employees including quality assurance employees,
marketing and sales employees, commercial technicians, managers, office
clerical, guards and supervisors as defined in the Act.
WE WILL NOT refuse to bargain with the Union by conditioning future bargaining upon it
holding a ratification vote.
WE WILL NOT implement our final offer and unilaterally change the terms and conditions
of employment of our employees in the above-described units without reaching agreement
with the Union and in the absence of a valid bargaining impasse.
WE WILL NOT unilaterally change wages, eliminate QPC, cut health insurance coverage,
reduce leave benefits, or otherwise change terms and conditions of employment in the above
described units.
WE WILL NOT unilaterally change our disciplinary policy and discharge unit employee
Dakota Novak, by failing to afford the Union pre-implementation notice of his contemplated
discipline and an opportunity to bargain.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in
the exercise of the rights set forth above.
WE WILL within 14 days from the date of the Board’s Order, offer the following 17
constructively discharged employees full reinstatement to their former jobs or, if such jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed: Marcus Tillman; David Dingle; Justin Ripley;
Kenneth Daniel; Bryce Benge; Salvador Bernardino; Preston Dutton; Robert Thompson; John
Carson; Scott Dehart; Robert MacDonald; Aaron Mason; Aaron Kubesch; Severo Hernandez;
John Burns; Christopher Little; and Michael Cater.
WE WILL make the 17 constructively discharged employees described above whole for any
loss of earnings and other benefits resulting from their discharges, less any net interim
earnings, plus interest, plus reasonable search-for-work and interim employment expenses.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful constructive discharges of the 17 employees described above, and
WE WILL, within 3 days thereafter, notify them in writing that this has been done and that
their constructive discharges will not be used against them in any way.
WE WILL on request by the Union, bargain with it as the exclusive bargaining representative
of our unit employees on terms and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement.
WE WILL, on request by the Union, rescind the changes in the terms and conditions of
employment of our unit employees that we unilaterally implemented on and after April 23,
2016, and retroactively restore the wages and other terms and conditions of employment that
existed before our unlawful unilateral changes were implemented, until we have reached an
agreement with the Union for a new collective-bargaining agreement or a lawful impasse
based on good-faith negotiations.
WE WILL make unit employees whole for any losses sustained as a result of the unilateral
changes in terms and conditions of employment, plus interest compounded daily.
WE WILL offer Dakota Novak, who was discharged pursuant to our unilaterally
implemented disciplinary policies and procedures, full reinstatement to his former job or, if
that job no longer exist, to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed, discharging if necessary any
employees hired in his place, subject to our demonstrating in a compliance hearing that we
would have discharged Novak even under the terms and conditions of employment that
existed immediately prior to our unilateral change.
WE WILL, subject to the condition set forth above, make Novak whole for any loss of
earnings and other benefits suffered as a result of his discharge, less any net interim earnings,
plus interest compounded daily.
WE WILL, subject to the condition set forth above, remove from our files any reference to
the unlawful discharge of Novak, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not be used against him in any way.
WE WILL compensate affected employees for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL file with the Regional Director for
Region 16, within 21 days of the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the appropriate calendar years for each
employee.
DISH NETWORK CORPORATION
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov.
819 Taylor Street, Room 8A24, Fort Worth, TX 76102-6178
(817) 978-2921, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/16-CA-173719 or by using the QR
code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (817) 978-2941.