Dish Network Corporation

National Labor Relations Board - Administrative Judge Opinions

Aug 11, 2011

16-CA-027316 (N.L.R.B. Aug. 11, 2011)

JD(ATL)–23–11
North Richland Hills, TX
Farmers Branch, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
DISH NETWORK CORPORATION
and
COMMUNICATIONS WORKERS OF AMERICA LOCAL
6171
Cases 16–CA–27316
16–CA–27331
16–CA–27514
16–CA–27700
16–CA–27701
16–RC–10919
Arturo A. Laurel, Esq., for the General Counsel.
George Basara, Esq., for the Respondent.
Matt Holder, Esq., for the Charging Party.
DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. This case was tried in Fort Worth, Texas, on May
23, 24, and 25, 2011, pursuant to an amended consolidated complaint that issued on January 7, 2011.1
The complaint, as amended at the hearing, alleges that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act (the Act) in various respects and violated Section 8(a)(3) of the Act by
warning and discharging employee Charles Cook.2 The representation case relates to an objection to the
election filed by the Employer predicated upon the conduct of Cook.3 The answer of the Respondent
denies any violation of the Act. I find that the Respondent violated the Act in certain respects and that the
objection to the election has no merit.
On the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by all parties, I make the following
Findings of Fact
I. Jurisdiction
Dish Network Corporation, referred to here as the Respondent, the Company, or the Employer, is
a Colorado corporation engaged in the business of providing satellite television installation and service
throughout the United States including its facilities in North Richland Hills and Farmers Branch, Texas.
The Company annually purchases and receives at its Texas facilities goods valued in excess of $50,000
directly from points located outside the State of Texas. The Respondent admits, and I find and conclude,
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

1 All dates are in 2010 unless otherwise indicated. The charge in Case 16–CA–27316 was filed on February 26 and amended on
March 10 and March 24. The charge in Case 16–CA–27331 was filed on March 10 and amended on April 7. The charge in Case
16–CA–27514 was filed on June 25. The charges in Case 16–CA–27700 and Case 16–CA–27701 were filed on October 19 and
amended on December 22.
2 Counsel for the General Counsel amended the complaint by withdrawing subparagraphs 7(a), (b), (c) (l) and (m) and 8(c) and (d).
3 Timely objections to the election in Case 16–RC–10919 were filed on March 3, and an Order Directing Hearing on Objections
issued on January 7, 2011. At the hearing, the Employer withdrew Objections 2 and 3 and stated that it would proceed only on
Objection 1.
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The Respondent admits, and I find and conclude, that Communications Workers of America,
Local 6171, the Union, is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Overview
This case arises as a result of a union organizational campaign at the Company’s North Richland
Hills and Farmers Branch, Texas locations. The Union filed petitions for elections at each location. The
Union won the election at the Farmers Branch location. The election at the North Richland Hills location is
before me as a result of objections to the election filed by the Employer.
The complaint contains various 8(a)(1) allegations predicated upon alleged unlawful
communications made by the Company during the campaign. It also alleges that Charles Cook, an
outspoken advocate for the Union, was unlawfully warned and discharged. As hereinafter discussed, I
find that the warning issued to Cook did violate the Act. I find that his discharge did not.
A major issue in the organizational campaign was an alteration of the manner in which employees
were paid. Prior to September or October 2009, employees had been paid an hourly wage. Thereafter the
Company instituted a new system, referred to as Pay for Points or QPC. The record does not establish
the basis for the QPC acronym. Pursuant to the new system, employees were paid a lower hourly wage
but earned additional money based upon points accumulated for the actual work that they performed.
Bonuses were also able to be earned. Employee Charles Cook explained that he experienced multiple
problems with the new system. If a job did not get properly recorded, the employee would have to provide
the documentation establishing that the job was performed. Although Cook testified that some employees
liked the QPC system and others did not, no employee who liked the system testified, and the Company’s
communications regarding QPC confirm that it was not popular. The Company contends that none of its
communications regarding QPC violated the Act. The General Counsel and Charging Party contend that
several of the communications did violate the Act.
B. The Section 8(a)(1) Allegations
The complaint, in subparagraphs 7(d) and (i), alleges that the Respondent violated the
Act by informing its employees in writing at Farmers Branch and North Richland Hills that “they would be
limited in bringing concerns to management if they selected the Union as their exclusive bargaining
representative.”
The foregoing allegations are predicated upon the Company’s response to a “9 Point Pledge”
distributed by the Union in the campaign. Item number 9 states:
I understand that when once our workplace is union, we will have the right to have a co-worker
come with us in meetings we have with management that might result in discipline. We will not
have to be all on our own anymore in those situations with management, unless that is what we
choose.
The Company’s response states:
If a workplace is Union, you have to go to your Steward with your complaints, and he decides
whether to bring them to the Company’s attention, not you. He controls your fate, not you.
The foregoing statement contains no threat. It does not contradict the Union’s correct
statement regarding an employee’s right to a witness at an investigatory interview. Although the response
does not cite the 9(a) right of employees to individually present grievances, it correctly points out that the
Union decides which grievances it wishes to pursue.
Board precedent, reiterated in United Rentals, Inc., 349 NLRB 190, 191 (2007) establishes that:
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An employer does not violate the Act by informing employees that unionization will bring about “a
change in the manner in which employer and employee deal with each other.” To the contrary,
truthful statements that identify for employees the changes unionization will bring inform
employee free choice which is protected by Section 7 and the statements themselves are
protected by Section 8(c). See Tri-Cast, Inc., 274 NLRB 377, (1985), citing NLRB v. Sacramento
Clinical Laboratory, 623 F.2d 110, 112 (9
th
Cir., 1980). (the court, citing with approval Textron
Inc., 176 NLRB 377 (1969). The Board there said that “‘[I]t is a fact of industrial life’ that when a
union represents employees, they will deal with an employer indirectly, through a shop steward.”)
The Charging Party argues that Tri-Cast,. Inc., supra, “fails to give any meaning to the proviso of
Section 9(a)” of the Act and “should rightly be questioned.” The Board’s recent reliance upon Tri-Cast,.
Inc., in the United Rentals, Inc., decision confirms its current viability as Board precedent, and I am bound
by Board precedent.
I shall recommend that this allegation be dismissed.
The complaint, subparagraph 7(e), alleges that on or about January 19 General Manager Bradley
Stives, at the Farmers Branch facility, “promised its employees that they would go back to hourly pay if
the employees did not select the Union as their exclusive bargaining representative.” Employee Juan
Zamarron recalled that Regional Operations Manager Karen Steinbeck, not Stives, was asked “if we
voted no,” how long it would take “for us to get back on regular pay.” Steinbeck answered that “she
couldn’t make any promises, because she didn’t want to influence the election . . . but generally it would
take two weeks.”
The foregoing time estimate, given in response to a specific question relating to time and coupled
with Steinbeck’s comment that she “couldn’t make any promises,” did not constitute a promise and did not
violate the Act. I shall recommend that this allegation be dismissed.
Subparagraph 7(f) alleges that, on or about January 26 at North Richland Hills, General Manager
Lance Higgins, “threatened employees with unspecified reprisals because of their Union activities.”
Charles Cook recalled that employees at North Richland Hills were told repeatedly by Higgins
and Human Resources Manager Barbara Ward that “if you guys organize . . . all your benefits will be
frozen; you won't be able to come to us with any complaints, . . . [and] [w]e're going to have to get . . .
more stringent on the policies that we've been lax on in the past.”
I am mindful that Cook was unable to attribute the comments that he recalled to a specific
speaker; however, Higgins did not testify and Ward did not deny making the comment relative to more
stringent enforcement of company policies. Insofar as the comments were made repeatedly I find it
understandable that Cook was unable to make a specific attribution. Rather than unspecified reprisals,
Cook’s testimony, which I credit, establishes that the Respondent violated Section 8(a)(1) of the Act by
threatening employees with more stringent enforcement of company rules if they selected the Union as
their collective-bargaining representative.
Subparagraph 7(g) alleges that, on or about January 26 or in early February at North Richland
Hills, Human Resources Manager Barbara Ward told employees that their wages and benefits were
frozen and that they were not getting any changes in their wages and benefits that were given to other
employees employed by the Respondent in other locations because of their union activities.
Subparagraph 7(k) alleges that Ward, on or about February 2 and/or February 9 at North
Richland Hills, “told employees that their wages and benefits were frozen because of their union
activities.”
Although Cook recalled that comments relative to the employees' benefits being frozen were
made, he was, as already noted, unable to specify whether it was Higgins or Ward who made the
comment. Ward credibly denied using the word frozen explaining that, in training, she was taught to use
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the term “status quo.” Higgins is not included or named in these allegations. I shall recommend that these
allegations be dismissed.
Subparagraph 7(h) alleges that, from January 15 through February 24, the Respondent, in writing
at North Richland Hills, “threatened its employees that they would be paid differently than other
employees employed by Respondent in other locations because of their union activities.”
This allegation is predicated upon two documents distributed at both North Richland Hills and
Farmers Branch, although the complaint allegation relates only to North Richland Hills.
Prior to the distribution of the two documents, the Company had, in a PowerPoint presentation
made the last week of January (GC Exh. 49, pp. 8-9), informed employees that in bargaining it could
reject proposals with which it did not agree and gave, as the first example, a union proposal of “No QPC,”
to which the “DISH Response” is “QPC stays.”
It appears that, during that same week, or the following week, the Company terminated QPC. A
PowerPoint presentation made to employees in the second week of February (GC Exh. 51, p. 5) states:
QPC is an example of what can happen in bargaining.
Some of you do not like QPC, and some do.
DISH discontinued QPC across the country last week.
This does not apply here. DISH is obligated by law to keep QPC in place until either (1) the Union
is voted out, or (2) it is removed through negotiations.
All employees here will continue under QPC until one of these two things happens.
The Company also distributed a document titled “Questions and Answers about Union Issues”
that, among other matters, discussed QPC. The relevant portion states:
DISH is required by law to maintain the “status quo.”
. . . . For example, QPC was just recently terminated as a test pilot program across the U.S., but it
will remain in place at the FB [Farmers Branch] and NBH [sic] [North Richland Hills] locations until
such time as the Union is voted out, or changes are negotiated between the CWA and DISH.
The Company presented no evidence of any employee who liked QPC. The Company’s
awareness of the unpopularity of QPC is confirmed by the implied promise to discontinue QPC at
Farmers Branch and North Richland Hills, just as it had “across the country” if the “Union is voted out.”
Notwithstanding the corporate abolition of QPC, the Respondent did not modify its previously
stated position that, if the Union proposed “No QPC,” it would reject that proposal, “QPC stays.”
There can be no question that the abolition of QPC would have occurred at Farmers Branch and
North Richland Hills in the absence of the union organizational activity. The abolition was system wide.
See Associated Milk Producers, 255 NLRB 750 (1981). Thus the issue is whether the Respondent’s
comments were lawful. Board precedent, as set out in Atlantic Forest Products, 282 NLRB 855, 858
(1987), is clear.
It is well established that an employer is required to proceed with an expected wage or benefit
adjustment as if the union was not on the scene. . . . An exception to this rule, however, is that an
employer may postpone such a wage or benefit adjustment so long as it “makes clear" to
employees that the adjustment would occur whether or not they select a union, and that the "sole
purpose" of the adjustment’s postponement is to avoid the appearance of influencing the
election's outcome. . . . In making such announcements, however, an employer must avoid
attributing to the union "the onus for the postponement of adjustments in wages and benefits," or
"disparag[ing] and undermin[ing] the [union] by creating the impression that it stood in the way of
their getting planned wage increases and benefits." [Citations omitted.]
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Abolition of QPC was a benefit adjustment. The Respondent made no statement relative to
postponement of the adjustment. The onus for the continuation of QPC was upon the Union. QPC “will
remain in place . . . until such time as the Union is voted out, or changes are negotiated between the
CWA and DISH.” Rather than informing employees, consistent with the corporate abolition of QPC, that
QPC would be abolished following the election regardless of the outcome, the employees were told that,
if they voted for the Union, abolition of QPC would be dependent upon bargaining. Respondent never
modified its stated bargaining position that, if the Union proposed abolition of QPC, “QPC stays.” The way
for the employees to get rid of QPC was to defeat the Union in the upcoming election.
The Respondent, by informing employees at North Richland Hills that they would be paid
differently than employees at other locations because of their union activities, violated Section 8(a)(1) of
the Act.
Subparagraph 7(j) of the complaint alleges that, on or about February 9 at Farmers Branch,
General Manager Stives and Regional Operations Manager Steinbeck threatened employees that they
would remain on the same pay plan if they selected the Union as their exclusive bargaining
representative and told employees it would be futile to select the Union as their exclusive bargaining
representative.
Employee Juan Zamarron recalled that company representatives at Farmers Branch addressed
the QPC and the status quo explaining that the employees had “jumped the gun,” that the Company was
“going to make some adjustments to it, but since we petitioned, there wasn't going to be none, because
we were status quo.” The record does not establish whether the “adjustments” were the same as the
corporate abolition of QPC. Regardless of the nature of the “adjustments” that the Respondent “was
going to make,” the Respondent informed its employees that there would be no adjustments because the
employees had “petitioned.” By informing its employees that they would remain on the same pay plan
because of their union activities, the Respondent violated Section 8(a)(1) of the Act.
The evidence in support of the allegation relating to futility was testimony by Zamarron who
recalled that, at a meeting on February 2 rather than February 9, General Manager Bradley Stives told
the employees that the Company would bargain to impasse. “They didn't say, you know, [‘]We could
bargain to impasse.[‘] It's, [‘]We will bargain to an impasse.[‘]” Stives did not testify, and I credit Zamarron.
The Company’s PowerPoint presentation the last week of January referred to bargaining and
noted that at Farmingdale, NY, the Company had not reached an agreement with the Union after 8 years.
The foregoing factual representation is not a violation of the Act. Stives’ statement the following week,
that the Respondent “would,” not could, “bargain to an impasse,” is inimical to the concept of bargaining
in good faith. An employer’s statement to employees that the employer intends to bargain to impasse
before the employees select a union as their collective-bargaining representative and before receiving
proposals and responding to them conveys the unmistakable message that their selection of the Union
will be a futile act. The Respondent, by informing its employees that selection of the Union as their
collective-bargaining representative was futile, violated Section 8(a)(1) of the Act.
Subparagraphs 7(n) and (o) allege that Farmers Branch Installation Manager Chris Vega, on or
about March 2, threatened employees that they would fail quality assurance checks and that company
rules, including the Respondent’s dress code, absenteeism/sick day policies, and safety procedures,
would be more strictly enforced because of their union activities.
Employee Zamarron recalled that, on March 2, Vega addressed the employees. He began by
stating that his comments were “in response to what happened last week,” which is when the election
took place. He then read out various company policies including the dress code and attendance policies,
noting that employees with tattoos needed to cover them and that, if an employee was out of vacation
time and missed a day, the employee would be “written up . . . even if we call in.” Employee Jorge
Tavares corroborated Zamarron. He recalled that Vega told the employees that “everything's going to be
black and white . . [e]verything’s going to be enforced.” He mentioned the dress code, stating that tattoos
“were going to have to be covered up.” He stated that if an employee was out of sick days, even if the
employee called in, “you get written up.” An employee asked Vega why the Company was “doing that.”
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Vega answered, “Because the Union is voted in now.”
Vega, in his testimony, pointed out that he had meetings each week, that it had been over a year
since the meeting in question, and that he did not “recall anything.” He did not deny making the
statements attributed to him by Zamarron and Tavares. I credit their testimony.
There is no evidence relating to failing quality assurance checks or safety procedures, and I shall
recommend that those aspects of the foregoing allegations be dismissed.
The Respondent, by threatening more strict enforcement of its dress code and absentee policies
because the employees selected the Union as their collective-bargaining representative, violated Section
8(a)(1) of the Act.
The complaint, in subparagraph 7(p), alleges that the Respondent unlawfully maintained “a
mandatory arbitration policy as a condition of employment.”
Board precedent, U-Haul Co. of California, 347 NLRB 375, 377 (2006), establishes that
arbitration agreements that “would reasonably be read by employees to prohibit the filing of unfair labor
practice charges with the Board” violate the Act.
The arbitration agreement herein provides, in pertinent part, that the Company and employee
agree to arbitration of “any claim, controversy and /or dispute between them arising out of and/or in any
way related to Employee’s . . . employment or termination of employment.”
A further provision states:
Notwithstanding the foregoing, this agreement to arbitrate all claims shall not apply to Employee
claims for statutory unemployment compensation benefits, statutory worker's compensation
benefits, and claims for benefits from an [sic] DISH Network-sponsored "employee benefit plan,"
as that term is defined in 29 U.S.C, § 1002(3). Further, and notwithstanding the foregoing, DISH
Network shall have the right to seek any temporary restraining orders, preliminary and/or
permanent injunctions in a court of competent jurisdiction based on DISH Network’s claims that
the Employee is violating DISH Network’s rights regarding (I) non-competition agreements or
obligations and/or (2) intellectual property, including but not limited to copyrights, patent rights,
trade secrets and/or know-how and or (3) confidential information.
The Respondent’s argument that the Charging Party Union has no standing to file the charge
herein alleging that the arbitration agreement is unlawful misses the mark. “[A]nyone can file a charge.”
Frank L. Sample, Inc., 118 NLRB 1496, 1498 (1957).
The arbitration agreement to which the employees were required to agree is a legal agreement
that restricts the rights of employees. The fact that this Respondent has not invoked the arbitration
agreement is irrelevant. All the charges herein were filed by the Union, not individual employees. As the
brief of the Charging Party correctly notes, “Dish could have added to the list of exclusions claims under
the NLRA [National Labor Relations Act], but did not do so.” Insofar as claims under the National Labor
Relations Act are not excluded, whereas unemployment and worker compensation benefits are excluded,
I find that the agreement “would reasonably be read by employees to prohibit the filing of unfair labor
practice charges with the Board.”
The Respondent, by requiring that employees sign an arbitration agreement from which the
employees reasonably could conclude that they was were precluded from filing charges with the NLRB,
violated Section 8(a)(1) of the Act.
C. The 8(a)(3) Allegations
The complaint alleges that Charles Cook was warned and discharged in violation of Section
8(a)(3) of the Act. Pursuant to the analytical framework prescribed in Wright Line, 251 NLRB 1083, 1089
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(1980), enfd. 662 F.2d 899 (1st Cir. 1981). cert. denied 455 U.S. 989 (1982), the General Counsel must
show (1) that the employee was engaged in protected activity, (2) that the employer was aware of the
activity, and (3) that the activity was a substantial or motivating reason for the employer's action. It is
undisputed that Cook engaged in protected union activity and that the Respondent was aware of that
activity. The 8(a)(1) violations found herein establish the animus of the Respondent towards union
activity. I find that the protected union activity of Cook was a motivating factor in the issuance of the
warning and in his discharge. Thus, it was incumbent upon the Respondent to establish that the same
action would have been taken against Cook in the absence of his union activity.
1. The Final Warning
a. Facts
The Company provides employees with the tools they need to perform their job. A company work
rule requires employees to use only company equipment. Despite this, many employees used their own
tools, particularly hand drills, when working over their heads. Cook explained that “running line on the
eaves of people's homes” required lifting his arm over his head for “extended periods of time to screw
these ties in.” His personal hand drill weighed less than half of what the Company-issued drill weighed,
and he used it to “make the work go faster” because it was less strenuous on overhead installations.
Other employees, just as Cook did, carried and used their personal hand drills. Employees had been
trying for the “last couple of years” to get approval for the use of their smaller and lighter drills, but they
had not “made any progress.” Notwithstanding the absence of approval, prior to February, no employee
had been disciplined for using his personal hand drill.
In early February, Cook had experienced a problem when performing an installation and
requested assistance. His supervisor, Chase Parkey, and another supervisor came to where Cook was
working and helped him figure out what needed to be done. Cook had his personal drill, “as I always did,”
and neither Parkey nor the other supervisor “made any comment about it.”
On February 17 Cook was performing an installation when his supervisor, Parkey, came out on
an unannounced visit, which was not unusual. Parkey was there for about half an hour observing Cook.
They talked about dogs and the weather as Cook worked. Just before Parkey left, he commented upon
Cook’s hand drill, stating, “You know that's not an authorized drill; right?” Cook acknowledged, “Yes, I do
know that.” Cook commented that, if Parkey needed “to generate a report reflecting that you did your job,”
he would understand because “it's your job to do that.” Parkey never directed Cook to cease using his
personal drill.
On February 22, Cook was called to the office of Installation Manager Wes Crow. Parkey was
present. Cook was presented with a final warning for insubordination because he had used his personal
drill. When presented the warning, Cook commented, “I don't get this,” but he then revised his reaction,
stating, “I guess I do. I think that, you know, that this goes to another part of an agenda that you're
working, and you're using this as an excuse, you know, to work that agenda.” Neither Parkey nor Crow
responded to the foregoing comment. Cook reminded Parkey of the occasion in early February when
Parkey had come to assist him and made no comment about his personal drill. Parkey did not respond.
Cook refused to sign the warning.
Contrary to the statement in the warning that Cook did not cease using his personal drill “when
confronted by his supervisor,” Cook did not use his personal drill in defiance of any directive by Parkey.
Parkey never directed Cook to cease using his personal drill. Parkey’s comment regarding Cook using a
drill that was not authorized was made as Parkey was leaving. Neither Installation Manager Crow nor
Parkey testified.
b. Analysis and Concluding Findings
The warning issued to Cook was for insubordination. The Respondent’s brief asserts that Cook
was warned for insubordination because, after his supervisor “appeared at the job site and asked him
about using unauthorized tools,” Cook responded, “Go ahead, write me up.” The record reflects that those
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were the words of Respondent’s counsel, not Cook. Counsel asked, “[T]o which you replied, ‘Go ahead,
write me up.’” Cook answered, “That’s an abbreviation of what I said. Yes.” As set out above, Cook
responded that, if Parkey needed “to generate a report reflecting that you did your job,” he would
understand because “it's your job to do that.”
If, as the brief of the Respondent implies, Parkey appeared at the jobsite and asked Cook about
his use of unauthorized tools, and Cook had continued to use his personal tool, a warning for
insubordination might well have been appropriate. But there is no evidence that anything other than that
to which Cook credibly testified occurred. Parkey never directed Cook to cease using his personal drill.
Parkey’s comment regarding Cook using a drill that was not authorized was made as Parkey was leaving.
Parkey did not testify.
Contrary to the assertion in the brief of the Respondent that an employee was “warned verbally”
on February 9 regarding use of unauthorized tools, the May 5 warning to employee John Taylor reports
that Taylor had been told on February 9 to remove his personal tools. That was a verbal directive. There
was no verbal warning.
On January 26, employees at North Richland Hills were threatened with more stringent
enforcement of company rules if they selected the Union as their collective-bargaining representative.
There is no evidence that, prior to February 22, any employee had been disciplined, much less issued a
final warning, for using a personal tool. When the discipline for insubordination was issued, Cook
commented that he believed that the warning was “another part of an agenda that you're working.”
Neither Crow nor Parkey responded to that statement. Cook was not insubordinate. The absence of
testimony by Crow and Parkey is compelling evidence that, if they had testified and done so truthfully,
their testimony would have confirmed that the warning issued to Cook was “part of an agenda” related to
his union activity.
The Respondent, by issuing a final warning to Charles Cook because of his union activity,
violated Section 8(a)(3) of the Act.
2.The Discharge
a. Facts
On February 23 and 25, all full time and part time technicians at the North Richland Hills facility
voted to determine whether they desired to be represented by the Union. The split sessions occurred
because, pursuant to the work schedule, there was no one day that all employees would be present.
Near the end of the voting session on February 23, about 6:30 p.m., prounion employee Charles
Cook voted. He went upstairs to the voting area and entered the room. Company observer Rex Leslie, a
nonunit employee, and Union observer Thomas Allen were sitting at a long table. Cook went behind the
table to get to the voting booth. As he passed Union observer Thomas Allen, he patted him on the
shoulder. He voted and put his ballot in the ballot box. As he left the voting area he testified that he
“tapped Leslie on what has become known as the ear and just left, you know.”
Cook explained that he was “one of the last people to vote,” and that he walked behind the
observers’ table because it was the “shortest distance between two points.” Cook’s testimony regarding
his physical contact with Company observer Rex Leslie was inconsistent. He initially testified that he
“tapped” Leslie on the ear. He then claimed that he “patted him on the way out,” presumably on the ear.
In an email to the Union, Cook stated that he “did strike Rex [Leslie] on the ear.”
Leslie described the physical contact as a slap, “[H]e slapped me on the side of the face.” Leslie
explained that the slap was not hard enough to knock him down but it did “sting . . . [and] caused my ear
to ring quite a bit.” Leslie commented, “You’re going to make me go deaf.” He recalled that one of the
Board agents stated, “That’s battery.” I credit Leslie.
Leslie recalled that “some” employees voted after the foregoing incident, but there is no evidence
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that the incident was mentioned.
Immediately after the voting session, which ended at 7 p.m., Leslie reported what had occurred to
Human Resources Manager Barbara Ward. Ward requested that Leslie “remain quiet” about the incident
until she could investigate. The following day he provided a written statement to Ward.
Ward spoke with Union observer Thomas Allen who stated that he “was a witness to Charles’
[Cook’s] action,” that he “did not agree with it,” and that he had been advised by counsel not to say
anything more.
On the morning of February 24, employees Alex Niebert, Robert Thompson, and Austin Miles
came into Leslie’s office. One of the three, Leslie did not recall who, stated that he had heard that “you
got slapped, or something.” Leslie reported the encounter with the three employees to Ward. Regional
Operations Manager Steinbeck obtained statements from Miles and Niebert. Miles’ statement reports that
he learned of the incident from Union observer Thomas Allen. “Thomas told Steve [Laird] and Michael
about him doing that and asking why he would do that. He said that when the vote was over.”
Niebert knew nothing about the incident until the conversation in Leslie’s office. His statement
reports that, as they were talking in Leslie’s office, something was mentioned “about Rex being slapped,”
and Niebert asked who had done it.
Ward, on the afternoon of February 24, in consultation with Steinbeck, Director of the South
Central Region Chris Liegl, and legal counsel determined that Cook should be terminated for engaging in
violence in the workplace, “striking another employee.”
Cook went to the North Richland Hills facility on Wednesday, February 24, but there was
insufficient work, and he returned home. His next scheduled workday was Sunday. When he came to the
faculty on Sunday he was met by General Manager Lance Higgins and Installation Manager Wes Crow.
They presented Cook with a termination notice that states that he was terminated for a “physical assault
upon another employee.”
On Monday, Cook received a letter dated February 25 from Higgins stating that the Company had
attempted to reach him by telephone on February 24 “to discuss your actions on the evening of February
23.” The letter continues stating that the Company had decided to terminate Cook “for physically striking
another employee in the workplace.”
Ward testified that the reference to “discuss your actions” was to inform Cook that he was
terminated. On the basis of the statement of Leslie, verbal confirmation by Union observer Allen, and the
statements of the employees regarding what Allen had told them, Ward determined that further
investigation was unnecessary.
At the second voting session, which occurred on Thursday, February 25, Leslie, at the direction of
Regional Operations Manager Steinbeck, challenged every voter. District Organizing Director Sandra
Rusher was the official representative of the Union at the election. She testified without contradiction that
there were no challenged ballots on the first day of the election. She understood that every ballot cast on
February 25 was challenged, and Leslie confirmed that fact. The initial tally of ballots reflects that there
were 17 challenged ballots at the second session.
b. Analysis and Concluding Findings
The probative evidence establishes that Cook slapped Leslie. Cook’s testimony, that he “tapped”
Leslie on the ear or “patted him on the way out,” is contradicted by his admission to the Union that he “did
strike Rex [Leslie] on the ear.” That admission is confirmed by the testimony of Leslie. The Respondent
investigated, determined what had occurred, and discharged Cook pursuant to the Company Handbook
which, on page 14, provides that the Company “will not tolerate prohibited activities” which include
“physical assault.”
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Counsel for the General Counsel argues that Cook was not given an opportunity to “explain what
happened” and that the physical contact “may have been inappropriate” but that it “hardly amounts to
‘violence’ or a ‘threat’ that merits termination.” I disagree. Cook’s slap was not incidental contact. Cook
admitted to the Union that he “did strike Rex [Leslie] on the ear.” An unprovoked physical assault is
violent. Consistent with the testimony of Ward, I agree that there was no need to give Cook an
opportunity to explain. Leslie reported that Cook had slapped him. Union observer Allen, having spoken
with counsel for the Union, confirmed to Ward that he “was a witness to Charles’ [Cook’s] action,” and that
he “did not agree with it.” The Respondent’s investigation revealed that Allen had spoken with Austin
Miles and two other employees after the voting session. Miles reported that Allen informed them about
“Cook slapping Rex [Leslie] in the face” and asked why “he would do that.”
Contrary to the argument of the Charging Party, citing Rally’s, 348 NLRN 382, 426, 429 (2006),
the physical contact between Cook and Leslie was not incidental. Cook slapped Leslie.
Documentary evidence establishes that the Respondent does not countenance physical
altercations. On December 22, 2009, Aundre Evans and Chad McNellie engaged in a physical altercation.
McNellie had held a door, preventing Evans from exiting. When Evans succeeded in exiting, he struck
McNellie. A physical struggle ensued. On December 23, 2009, both were discharged. When slapped by
Cook, Leslie did not respond in kind; thus there was no fight.
The Respondent has established that Cook would have been discharged notwithstanding his
union activity. I shall recommend that this allegation be dismissed.
D. The Objection to the Election at North Richland Hills
The Employer filed timely objections to the election. At the hearing, counsel advised that the
Employer was withdrawing Objections 2 and 3. Objection 1 relates to the conduct of Cook which the
objection alleges was disseminated to other employees.
On February 23 and 25, all full time and part time technicians at the North Richland Hills facility
voted to determine whether they desired to be represented by the Union. The split sessions occurred
because, pursuant to the work schedule, there was no one day that all employees would be present.
Near the end of the voting session on February 23, Charles Cook voted. As he was leaving the
voting place, Cook slapped Company observer Rex Leslie on the right side of his face. The remainder of
the session went without incident. Leslie recalled that “some” employees voted after Cook, but there is no
evidence that the incident was mentioned. There is no evidence that anyone other than Leslie, Cook,
Union observer Thomas Allen, and the Board agents conducting the election were aware of what had
occurred. Leslie was not in the unit.
The Employer, in its brief, speculates that employees “probably . . . learned about the assault
directly from Mr. Cook.” There is not a scintilla of evidence supporting that speculation. Cook spoke with
other employees after he voted, but there is no evidence that he mentioned the incident involving Leslie.
Leslie reported what had occurred to Human Resources Manager Ward. At her direction, he did not
mention the incident to any employees, although, as already noted, Austin Miles mentioned the incident
to Leslie on the morning of February 24.
Following the voting session on February 23, Thomas Allen mentioned what had occurred to
Austin Miles. Miles gave a statement to the Employer in which he reported that “Thomas told Steve [Laird]
and me and Michael [last name unknown] about him doing that and asking why he would do that. He said
that when the vote was over.”
The employer cites testimony by Union observer Thomas Allen at an unemployment
compensation hearing in which he acknowledged that, following the voting session on February 23, he
“talked about it [the incident] with a few other coworkers.” That is consistent with the statement that Austin
Miles provided to the Employer. There is no evidence that Allen spoke about the incident with anyone
other than Miles, “Steve” and “Michael.”
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The burden of proof is upon the party “seeking to have a Board-supervised election set aside,”
and that burden is a “heavy one.” Crown Bolt, Inc., 343 NLRB 776, 779 (2005). In Crown Bolt, the Board
overruled Spring Industries, 332 NLRB 40 (2000), in which the Board had “presumed dissemination of
plant-closure threats or other kinds of coercive statements.” The Board held that “[w]here proof of
dissemination of coercive statements, including threats of plant closure, is required, the objecting party
will have the burden of proving it and its impact on the election by direct and circumstantial evidence.”
Crown Bolt, Inc., supra at 779.
I find the foregoing principle applicable to the situation herein in which information involving a
physical altercation rather than a threat is the issue. There is no evidence that the incident between Cook
and Leslie created “a general atmosphere of fear and reprisal” that would render a fair election
impossible. See Accubuilt, Inc., 340 NLRB 1337 (2003). The only unit employees shown to have been
aware of the incident involving Cook and Leslie were Cook, Union observer Allen, who told Austin Miles,
“Steve,” and “Michael” about it “after the vote” on February 23, and Alex Niebert and Robert Thompson
who were present in Leslie’s office the following morning when Miles mentioned the incident. Insofar as
those employees were present on Tuesday and Wednesday, they presumably voted on Tuesday, prior to
hearing about the incident. The Employer presented no evidence to the contrary. Neither Miles nor Allen
testified.
The Employer, in its brief, asserts that “technicians who voted on the 25
th
would also have heard
about” the incident. There is no probative evidence supporting that assertion. The Employer presented no
evidence that any employee who voted on February 25 was aware of or had heard about the February 23
incident involving Cook and Leslie. The split voting sessions occurred because of the employees’ work
schedules; thus, employees who worked on Tuesday would not be present on Thursday and employees
who worked on Thursday would not be present on Tuesday. No employee who voted on February 25
testified. There is no evidence that any employee who voted on Thursday, February 25, knew about the
incident.
The Employer’s Objection to the election is overruled.
E. The Challenged Ballots
I am mindful that only the objection to the election is before me; however, I note that there
appears to be a discrepancy in the tallies of ballots. Undisputed testimony establishes that every ballot
cast on February 25 was challenged, and the initial Tally of Ballots reflects that there were 17 such
ballots. Regional Operations Manager Steinbeck directed Company observer Leslie to challenge every
voter who appeared on February 25, and he did so. In reviewing the formal papers, I am perplexed by the
two Corrected Tallies of Ballots issued by Region 16 as well as the Order Directing Hearing on
Objections, all of which reflect no challenged ballots. The corrected tallies contain no explanation for the
absence of the 17 challenged ballots.
The initial tally of ballots reflects that there were 2 void ballots, 33 votes cast for the Petitioner, 16
votes against representation and 17 challenged ballots, which would give a total of 68 eligible voters. All
of the tallies reflect a total of approximately 53 eligible voters. The initial tally states that the challenged
ballots were not sufficient to affect the results of the election. As the Employer, in its brief, correctly points
out, the challenges are sufficient to affect the results of the election. If every challenged ballot was against
representation, the final total would be 33 for the Petitioner and 33 against representation The Petitioner
would not have received a majority of the valid votes.
The record reflects that there were 17 challenged ballots. If the challenges to those ballots have
not been resolved in some manner not reflected in this record, those challenges need to be resolved.
Having overruled the Objection to the election, I shall recommend that the representation case be
remanded to the Regional Director for appropriate action.
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Conclusions of Law
1. By threatening employees with more stringent enforcement of company rules if they selected
the Union as their collective-bargaining representative, informing employees that they would be paid
differently than employees at other locations, informing employees that they would remain on the same
pay plan because of their union activities, informing employees that selection of the Union as their
collective bargaining representative was futile, threatening stricter enforcement of the dress code and
absentee policies because employees selected the Union as their collective-bargaining representative,
and by requiring that employees sign an arbitration agreement from which the employees reasonably
could conclude that they were precluded from filing charges with the NLRB, the Respondent has engaged
in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
2. By issuing a final warning to employee Charles Cook because of his union activities, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must
be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of
the Act.
Having discriminatorily warned Charles Cook, the Respondent must rescind that warning and
inform Cook that it has done so.
The Respondent will be ordered to post and email appropriate notices addressing the violations
found at the separate locations.
On these findings of fact and conclusions of law and on the entire record, I issue the following
recommended4
ORDER
A. The Respondent, Dish Network Corporation, North Richland Hills, Texas, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with more stringent enforcement of Company rules if they selected
the Union as their collective-bargaining representative.
(b) Informing employees that they would be paid differently than employees at other locations
because of their union activities.
(c) Requiring employees to sign an arbitration agreement from which the employees reasonably
could conclude that they were precluded from filing charges with the NLRB.
(d) Issuing warnings to employees because of their union activities.
(e) 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.

4 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.
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2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, rescind the unlawful warning issued to
Charles Cook on February 22, 2010, remove from its files any reference to the unlawful warning, and
within 3 days thereafter notify him in writing that this has been done and that the warning will not be used
against him in any way.
(b) Within 14 days after service by the Region, post at its facilities in North Richland Hills copies
of the attached notice marked Appendix A.5 Copies of the notice, on forms provided by the Regional
Director for Region 16 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 are customarily posted. In addition to physical posting of paper notices, the
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 altered,
defaced, or covered by any other material. In the event that, during the pendency of these proceedings,
the Respondent has gone out of business or closed the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any time since January 26, 2010.
(c) 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 the Respondent has
taken to comply.
B. The Respondent, Dish Network Corporation, Farmers Branch, Texas, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Informing employees that they would remain on the same pay plan because of their union
activities.
(b) Informing employees that selection of the union as their collective-bargaining representative
was futile.
(c) Threatening employees with stricter enforcement of the dress code and absentee policies
because employees selected the Union as their collective-bargaining representative.
(d) Requiring employees to sign an arbitration agreement from which the employees reasonably
could conclude that they were precluded from filing charges with the NLRB.
(e) 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 effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facilities in Farmers Branch, Texas,
copies of the attached notice marked Appendix B.6 Copies of the notice, on forms provided by the
Regional Director for Region 16 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

5 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.”
6 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.”
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places where notices to employees are customarily posted. In addition to physical posting of paper
notices, the 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 altered, defaced, or covered by any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of business or closed the facilities involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Respondent at any time since February 2,
2010.
(b) 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 the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the
Act not specifically found.
IT IS ALSO ORDERED that the Employer’s Objection to the Election in Case No. 16–RC–10919
be overruled and that Case No. 16–RC–10919 be severed and remanded to the Regional Director for
action, if any, necessary with regard to the challenged ballots and issuing an appropriate Certification.
Dated, Washington, D.C., August 11, 2011
_____________________
George Carson II
Administrative Law Judge
JD(ATL)–23–11
APPENDIX A
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 threaten you with more stringent enforcement of Company rules if you select the Union as
your collective bargaining representative.
WE WILL NOT inform you that you will be paid differently than employees at other locations because of
your union activities.
WE WILL NOT require you to sign an arbitration agreement from which you reasonably could conclude
that you were precluded from filing charges with the NLRB.
WE WILL NOT issue warnings to you because of your union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, rescind the unlawful warning issued Charles Cook
on February 22, 2010, remove from our files any reference to the unlawful warning, and within 3 days
thereafter notify him in writing that this has been done and that the warning will not be used against him in
any way.
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.
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) 978–2925.
JD(ATL)–23–11
APPENDIX B
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 inform you that you will remain on the same pay plan because of your union activities.
WE WILL NOT inform you that selection of the Union as your collective bargaining representative was
futile.
WE WILL NOT threaten you with stricter enforcement of the dress code and absentee policies because
you selected the Union as your collective bargaining representative.
WE WILL NOT require you to sign an arbitration agreement from which you reasonably could conclude
that you were precluded from filing charges with the NLRB.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
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.
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) 978–2925.