DirectSat USA, LLC

National Labor Relations Board - Administrative Judge Opinions

Jul 20, 2017

13-CA-176621 (N.L.R.B. Jul. 20, 2017)

JD–57-17
South Holland, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DIRECTSAT USA, LLC
and Case 13–CA–176621
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
LOCAL UNION 21, AFL–CIO
Elizabeth S. Cortez, Esq., for the
General Counsel.
Eric P. Simon, Esq. and Douglas J. Klein, Esq.,
(Jackson Lewis P.C.), of New York,
New York, for the Respondent.
Gilbert Cornfield, Esq. (Cornfield and Feldman
LLP), of Chicago, Illinois, for the
Charging Party.
DECISION
CHARLES J. MUHL, Administrative Law Judge. The General Counsel’s complaint in this
case alleges that DirectSat USA, LLC (the Respondent) unlawfully refused to provide
information to Local Union 21 of the International Brotherhood of Electrical Workers, AFL–CIO
(the Union). That Union represents the Respondent’s installation and service technicians, who
perform work for DirecTV, Inc. under a subcontract. The information at issue is a full and
unredacted copy of the Respondent’s contract—the “Home Service Provider” agreement—with
DirecTV. The situation arose in the context of negotiations for a first contract covering the
Respondent’s technicians.
On April 10, 2017, the parties filed a joint motion and stipulation of facts requesting that
the case be decided without a hearing and based on the stipulated record. On April 14, 2017, I
granted the motion and approved the stipulation of facts via written order. Thereafter, the
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parties filed briefs on May 26, 2017. Based upon those briefs and the entire stipulated record, I
find that the Respondent violated the Act as alleged in the complaint.1
FINDINGS OF FACT
5
I. JURISDICTION
The Respondent is engaged in the installation and service of satellite television
equipment for DirecTV, from its facility in South Holland, Illinois. In conducting its business
operations during the past 12 months, the Respondent has performed services in excess of 10
$50,000 in States other than the State of Illinois. Accordingly, I find that, at all material times,
the Respondent has been an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, as the Respondent admits in its answer to the complaint. I also find, and
the Respondent admits, that the Union is a labor organization within the meaning of Section
2(5) of the Act.2 15
II. ALLEGED UNFAIR LABOR PRACTICES
On February 11, 2014, the Union was certified as the exclusive collective-bargaining
representative of the Respondent’s technicians, pursuant to Section 9(a) of the Act.3 The 20
Respondent and the Union began negotiations for a first contract on September 4, 2014. Eric
Simon, an attorney, represented the Respondent in these negotiations.4
One of the matters the parties addressed in bargaining was whether new products or
services offered by the Respondent would be deemed bargaining unit work. On various dates 25
from November 12, 2014 through September 16, 2015, the Respondent and the Union exchanged
written proposals on this topic. The Respondent proposed that such work would be outside the
unit. However, at its sole discretion, the Company could assign the new work to unit
employees, set their wage rates, and later remove the work without any challenge through the

1 On May 20, 2016, the Union initiated this case by filing the original unfair labor practice charge
against the Respondent. Region 13 of the National Labor Relations Board (the Board) docketed the
charge as Case 13–CA–176621. On June 13, 2016, the Union filed a first amended charge and, on
September 14, 2016, the Union filed a second amended charge. On September 23, 2016, the General
Counsel issued a complaint, alleging that the Respondent violated Section 8(a)(5) of the National Labor
Relations Act (the Act). On October 5, 2016, the Respondent filed a timely answer to the complaint.
Therein, it asserted an affirmative defense, based upon Section 10(b) of the Act.
2 Stipulation of facts, pars. 7–10.
3 The full description of this appropriate unit (the Unit) is:
All full-time and regular part-time Installation/Service Technicians
employed by the Employer at its facility located at 9951 W 190th St.,
Mokena, Illinois, 60448, but excluding all other employees, confidential
employees, guards, and supervisors as defined in the Act.
The Respondent relocated the Mokena facility to South Holland in or around May 2015.
4 The parties agree that, in that capacity, Simon was a Sec. 2(13) agent of the Respondent.
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grievance and arbitration procedure. The Union, in turn, proposed having this work assigned
to bargaining unit employees. It also sought to retain the right to negotiate the terms and
conditions of employment related to this work. Finally, the Union proposed that it be able to
submit any disagreements over the new work to the grievance procedure.5
5
The material events regarding the Union’s information request at issue in this case took
place from November 2015 to May 2016. First, on November 4, 2015, the Respondent submitted
a revised proposal on new product lines.6 The first sentence of that proposal stated: “In the
event the Employer is engaged with respect to products or services other than those provided
pursuant to its Home Service Provider agreement with DirecTV, . . . .such work shall not be 10
deemed bargaining unit work.” (Emphasis in the original.)
Then on November 23, 2015, Dave Webster, a business representative for the Union, sent
an email to Lauren Dudley, the Respondent’s human resources director.7 Webster stated in
relevant part: “[O]ne of the company proposals references the HSP agreement with DTV. We’d 15
like a copy of the agreement referenced in the proposal.” Dudley responded via email dated
December 4, 2015.8 As to the Home Service Provider (HSP) agreement with DirecTV, Dudley
stated: “See attached, relevant to scope of work.” She provided a portion of the agreement,
with redactions. In the “Recitals,” the unredacted provisions described the businesses of
DirecTV and the Respondent. Then the “Agreement” section included an “Appointment of 20
Contractor” provision, which stated:
Authority. DIRECTV hereby engages [the Respondent] to provide
services in the installation and maintenance of DIRECTV System
Hardware (the “Services,” or “Fulfillment Services” when 25
referring specifically to initial customer installation services only)
as defined herein and as identified in Exhibit 1.a.i. attached hereto
for DIRECTV customers located in areas specified in Exhibit
I.a.ii.. attached hereto. . . .(Emphasis in the original.)
30
Dudley also provided the two exhibits referenced in this provision. The first gave a description
of the work tasks the Respondent would perform for DirecTV under the agreement. The second
contained a list of cities in which the Respondent would perform the work.
On February 16, 20169, Webster sent an email to Simon, which stated:35
I have heard that AT&T has extended the DirecTV contract with
DirectSat for another 3 years. With AT&T & DirectSat both

5 Stipulation of facts, pars. 16–19; Jt. Exhs. 7–10.
6 Stipulation of facts, par. 20; Jt. Exh. 11.
7 Stipulation of facts, par. 21; Jt. Exh. 12.
8 Stipulation of facts, par. 22; Jt. Exh. 13.
9 All dates hereinafter are in 2016, unless otherwise specified.
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installing the DirecTV Dish we need to understand the
relationship between AT&T & DirectSat and the shared work.
Please send a copy of the current agreement between DirectSat &
AT&T/DTV for use in bargaining.10
5
Simon responded via email dated February 20.11 Simon stated therein:
We have no idea what you have heard or whom you have heard it
from, but your "information" is erroneous. DirectSat has entered
into no new agreements with AT&T. In early 2015, DirecTV 10
extended its contract with DirectSat through 2018, but there has
been nothing further.
As to the substance of your request, you seem to assert is relevant
(sic) because you believe DirecTV (I assume you refer to AT&T 15
because of the recent acquisition of DirecTV by AT&T) and
DirectSat have "shared" work. Again, you are mistaken. There is
no "shared" work. As far as DirectSat is concerned, all of the work
is DirecTV's. DirecTV currently has, and always has had, the right
to contract as much or as little or none of its satellite TV system 20
installation and service work to DirectSat as it, in its sole
discretion, may decide. DirectSat only performs the work that
DirecTV authorizes it to perform. DirectSat has never had an
exclusive right to install/service DirecTV systems. Just as DirecTV
had the ability to decide to whom it would contract with or if it 25
would contract out installation/service work at all prior to the
AT&T-DirecTV merger, DirecTV (even as a subsidiary of AT&T)
continues to determine what and how much work to contract out.
This is not an issue DirectSat has any control over or ever had any
control over, and as such is not a mandatory subject of bargaining. 30
Bargaining unit work has been and will continue to be the
installation and service of DirecTV systems to the extent and
degree DirecTV authorizes DirectSat to perform such work. While
Local 21 may have an issue with DirecTV's subcontracting of such
work, it is not relevant to our negotiations. 35
On March 18, Webster resent the original information request to Simon, asking for a full
copy of the HSP agreement.12 Once again, Webster noted the reference to the agreement in the
Respondent’s new product lines proposal. At a bargaining session on March 22, Simon

10 Stipulation of facts, par. 23; Jt. Exh. 14. AT&T acquired DirecTV on or about July 24, 2015.
11 Stipulation of facts, par. 24; Jt. Exh. 15.
12 Stipulation of facts, par. 25; Jt. Exh. 16. In this communication, Webster also requested
information concerning “how the technician’s scorecard is determined. Not only the metrics, but how the
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acknowledged the Union’s renewed information request. Simon stated that the Respondent
already provided the Union with the relevant portions of the HSP agreement. The Union also
submitted a revised proposal regarding new product lines. That proposal retained the
Respondent’s earlier language referencing the HSP agreement, except that the new work was
deemed bargaining unit work. 5
On April 5, the Union again reiterated its request for a full copy of the HSP agreement,
based upon the Respondent referencing the agreement in its new product lines proposal.13
On May 19, Webster sent the following email to Simon:10
In connection with DirectSat negotiations I renew my request for a
FULL copy of the HSP agreement between DirectSat and
DirecTV/AT&T in addition to all current agreements with sub
contractors, to evaluate the extent of control of DirectSat by 15
DirecTV/AT&T.14
Simon responded via email the same day.15 He said: “We have already provided you with all
relevant information regarding this request. We see no reason to supplement our response.”
20
The Union filed the original unfair labor practice charge in this case on May 20. Then
on May 22, Simon sent a letter16 to Webster to “further explicate DirectSat’s rational (sic) for
declining to provide a complete copy of the HSP Agreement. . . .” Simon stated in relevant part:
The request for the full copy of the HSP agreement to evaluate 25
DirecTV's control over DirectSat is irrelevant to negotiations
between DirectSat and Local 21 regarding terms and conditions of
employment of DirectSat employees. The "extent of control" of
DirecTV over DirectSat has no bearing on negotiations over
wages, hours, or other terms and conditions of employment which 30
are exclusively controlled by DirectSat. As previously explained

metrics are determined and by whom.” On April 6, Simon responded with a different, redacted portion
of the HSP agreement. (Stipulation of facts, par. 28; Jt. Exh. 19.) This portion listed the categories of
performance standards DirecTV set for the Respondent, as well as the definition of each category. The
General Counsel does not allege or argue that the Respondent’s conduct as to this Union request for
information was unlawful.
13 Stipulation of facts, par. 27; Jt. Exh. 18.
14 The General Counsel’s complaint only alleges and relies upon the Union’s requests for the full
HSP agreement dated March 16 and May 19. It does not include the Union’s requests dated November
23, 2015, February 16, and April 5.
15 Stipulation of facts, par. 30; Jt. Exh. 21.
16 Stipulation of facts, par. 31; Jt. Exh. 22.
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to you at the table, DirecTV does not, and has no control over the
wages paid to DirectSat employees or the metrics used to evaluate
the performance of unit employees. These decisions are vested
exclusively in DirectSat. For the last 2+ years since Local 21 was
certified as the representative of employees of DirectSat's Chicago 5
South (now South Holland location), DirectSat has bargained in
good faith over the wages, hours and other terms and conditions
of employment of unit employees. DirecTV has no role in these
negotiations. DirectSat has never asserted that it cannot agree to a
proposal on any issue because DirecTV might disapprove. Nor is 10
the ability of DirectSat to enter into a collective bargaining
agreement with Local 21 subject to approval by DirecTV.
DirectSat has provided Local 21 with those portions of its contract
with DirecTV which may have some relevance to our negotiations 15
- the scope of work covered by the HSP agreement and the metrics
used by DirecTV to evaluate the performance of DirectSat under
the HSP agreement. (DirectSat did not object to providing this
information on the basis that while DirectSat has full authority to
set performance metrics for unit technicians, DirectSat has stated 20
that the metrics established by DirecTV to evaluate DirectSat help
inform DirectSat in establishing performance metrics for
technicians.)
For all the foregoing reasons, the Union's request for the full HSP 25
contract is not relevant to any issue in negotiations and DirectSat
declines to provide it.
ANALYSIS
30
The General Counsel’s complaint alleges that the Respondent violated Section 8(a)(5) by
refusing to provide the Union with a full, unredacted copy of its HSP Agreement with DirecTV.
The only issue in dispute is the relevance of the agreement to the Union’s duties as the
bargaining representative of the Respondent’s technicians.17

17 In its answer to the complaint, the Respondent asserted a 10(b) defense. It makes no argument
in this regard in its brief. In any event, the facts do not support this defense. The Union’s first request for
the HSP agreement occurred on November 23, 2015. The Respondent provided its partial response on
December 4, 2015. The Union again requested the full agreement on February 16. The Respondent’s first
refusal to provide the full agreement occurred on February 20. Thus, the 10(b) period began to run as of
February 20, when the Respondent clearly and unequivocally denied the Union’s request for the full
agreement. Quality Building Contractors, Inc., 342 NLRB 429, 431 (2004). The Union filed its initial unfair
labor practice charge on May 20 and it was served on the Respondent on that same date. (Stipulation of
facts, par.1.) Thus, the charge filing occurred well within the required 6-month period from when the
alleged unfair labor practice occurred.
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I. LEGAL STANDARD
An employer has a statutory obligation to provide to a union that represents its
employees, on request, information that is relevant and necessary to the union’s performance of
its duties as the exclusive collective-bargaining representative. Piggly Wiggly Midwest, LLC, 357 5
NLRB 2344, 2355 (2012); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967); NLRB v. Truitt
Mfg. Co., 351 U.S. 149, 152 (1956). When the union's request deals with information pertaining
to employees in the unit that goes to the core of the employer-employee relationship, the
information is “presumptively relevant.” National Broadcasting Co., Inc., 318 NLRB 1166, 1169
(1995), citing to Shell Development Co. v. NLRB, 441 F.2d 880 (9th Cir. 1971). However, an 10
employer’s contracts with customers are not presumptively relevant. F.A. Bartlett Tree Expert
Co., Inc., 316 NRLB 1312, 1313 (1995). Thus, the Union here must establish the relevance of the
information. Sheraton Hartford Hotel, 289 NLRB 463, 463–464 (1988). To demonstrate relevancy,
a liberal, discovery-type standard applies and the union’s initial showing is not a burdensome
or overwhelming one. NLRB v. Acme Industrial Co., 385 U.S. at 437; The New York Times Co., 270 15
NLRB 1267, 1275 (1984). Nonetheless, where the request is for information with respect to
matters outside the unit, the standard is somewhat narrower and relevance is required to be
somewhat more precise. Island Creek Coal Co., 292 NLRB 480, 487 (1989), citing to Ohio Power
Co., 216 NLRB 987, 991 (1975).
20
II. DID THE UNION HAVE AN OBJECTIVE, FACTUAL BASIS TO SUSPECT
THE RESPONDENT AND DIRECTV WERE JOINT EMPLOYERS?
To demonstrate relevance, the General Counsel first argues that the Union needed to
determine if DirecTV and the Respondent were joint employers for purposes of collective 25
bargaining.18 Information concerning the existence of a joint employer relationship also is not
presumptively relevant and a union has the burden of demonstrating its relevancy. Connecticut
Yankee Atomic Power Co., 317 NLRB 1266, 1267 (1995); Knappton Maritime Corp., 292 NLRB 236,
239 (1988). A union cannot meet its burden based on a mere suspicion that a joint employer
relationship exists. It must have an objective, factual basis for so believing. Kranz Heating & 30
Cooling, 328 NLRB 401, 402–403 (1999). However, a union is not obligated to disclose those facts
to the employer at the time of the information request. Baldwin Shop ‘N Save, 314 NLRB 114, 121
(1994). It is sufficient if the General Counsel demonstrates at the hearing that the union had, at
the relevant time, a reasonable belief.19 Cannelton Industries, Inc., 339 NLRB 996, 997 (2003).
35

18 In Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), the Board instituted a
revised standard for determining joint employer status. Under that standard, two or more entities are
joint employers if they share or codetermine those matters governing the essential terms and conditions
of employment. Possessing authority over those terms is sufficient to establish joint employer status.
Such terms include the direction of the work force, dictating the number of workers to be supplied, and
determining the manner and method of work performance.
19 Of course, in this case, no hearing occurred. Accordingly, the objective facts relied upon by the
Union either must have been disclosed at the time of the requests or included in the stipulation of facts.
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Both Connecticut Yankee Atomic Power and Kranz Heating & Cooling, supra, involved
situations where unions demonstrated a reasonable belief that two entities were joint
employers. In Connecticut Yankee, the union investigated the working conditions of
subcontracted employees at a plant where it represented permanent employees. The union
obtained facts indicating the employer with whom it had the collective-bargaining relationship 5
played a role in the hiring, work scheduling, and supervision of the subcontracted employees.
In addition, a union representative became aware of prior Board cases where similar claims of
joint employer status were made. In Kranz Heating, the union discovered a variety of objective
facts suggesting joint employer status. The union there represented employees in a business
that allegedly closed. Following the closure, the union determined that a newly formed 10
company was operating the same or similar business from the same location. The new
company also was using the same equipment and telephone number. In these cases, the unions
formed a reasonable belief of joint employer status based upon their collection of objective facts,
before making their information requests. See also Piggly Wiggly Midwest, 357 NLRB at 2357–
2358; Knappton Maritime Corp., 292 NLRB at 239; Cannelton Industries, Inc., 339 NLRB at 997. 15
In contrast in this case, the stipulated facts do not establish the Union had an objective
basis for believing the Respondent and DirecTV were joint employers, at the time it made the
information requests. Prior to its March 16th request, the Union only knew that DirecTV and
the Respondent had a contractual relationship, under which the Respondent provided 20
installation and maintenance services to DirecTV. The mere existence of a service contract
between two companies is not a sufficient basis to reasonably believe they might be joint
employers. If it were, then every agreement between an employer and a subcontractor would
be deemed relevant to the question of joint employer status, based upon nothing more than the
contract’s existence. The Union also knew that both DirecTV and the Respondent installed and 25
serviced DirecTV equipment. But the fact that both companies performed the work, standing
alone, is not an objective basis for concluding DirecTV possessed control over how the
Respondent did so. When the Union made its May 19th request, the only new information it
had obtained were DirecTV’s performance standards for DirectSat contained in the HSP
agreement. However, nothing therein suggested DirecTV had any control over how the 30
Respondent went about meeting those standards. Finally, the stipulated record contains no
additional, contemporaneous facts relied upon by the Union for believing a joint employer
relationship existed. Taken together, these minimal facts fall into the category of mere
suspicion. The Union needed more here.20
35

20 Although Webster also stated the Union needed the HSP agreement “for use in bargaining”
and “in connection with DirectSat negotiations,” such statements are too general and conclusory to
establish relevance. F.A. Bartlett Tree Expert Co., 316 NLRB at 1313; Island Creek Coal Co., 292 NLRB at 490
fn. 19.
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III. DID THE UNION NEED THE REQUESTED INFORMATION TO
VERIFY CLAIMS MADE BY THE RESPONDENT?
The General Counsel also contends the Union was entitled to the full HSP agreement to
verify the accuracy of claims made by the Respondent concerning the relationship between the 5
two entities. Relevance can be established in this fashion. Caldwell Manufacturing Co., 346 NLRB
1159, 1160 (2006) (relevance established where employer made specific factual assertions in
bargaining concerning need to improve competitiveness and, thereafter, union requested cost
and productivity information in part to evaluate the accuracy of the claims); Shoppers Food
Warehouse Corp., 315 NLRB 258, 259 (1994) (union was not required to accept at face value an 10
employer’s assertion that two entities were separate operations). The U.S. Supreme Court itself
stated in Truitt Mfg. Co. that if “an argument is important enough to present in the give and take
of bargaining, it is important enough to require some sort of proof of its accuracy.” 351 U.S. at
152–153.
15
In this case, the stipulated facts likewise fail to establish that the Respondent claimed it
and DirecTV were not joint employers. Prior to the Union’s information requests, the only
conceivable assertions Simon made in this regard were in his February 20 letter. Simon said
there was no “shared work” between the companies. He also stated repeatedly that DirecTV
had the exclusive right to contract out all or none of its work to the Respondent. In evaluating 20
joint employer status, the Board looks to whether the employers share control over terms and
conditions of employment, not whether they share work. Browning-Ferris, supra. Those terms
and conditions include determining the manner and method of employees’ work performance,
not the amount of work one employer subcontracts to another. The General Counsel has
overstated the significance of Simon’s statements. See F.A. Bartlett Tree Expert Co., 316 NLRB at 25
1313. The closest Simon came to putting joint employer status at issue was in his May 22 letter
to the Union, after the Union filed its unfair labor practice charge. Therein, Simon stated
DirecTV had no control over the wages paid to DirectSat employees or the metrics used to
evaluate the performance of unit employees. Simon also stated that DirecTV had no role in the
negotiations and could not require that the Respondent seek its approval to enter into a 30
collective bargaining agreement. However, these statements all came after the Union submitted
its information requests for the full HSP agreement. Thus, those requests could not test the
accuracy of claims that had not yet been made. In sum, the Respondent never denied that it and
DirecTV were joint employers. It also did not deny any of the specific factors used to evaluate
joint employer status. Therefore, the Union cannot establish the relevance of the full, 35
unredacted HSP agreement on this basis either.
However, the Union is entitled to verify the Respondent’s repeated claim that it
furnished all the relevant portions of the HSP agreement on the scope-of-unit-work issue. First,
no question exists, and the Respondent concedes, that information in the HSP agreement on the 40
scope of unit work is relevant to the Union’s representational functions.21 This conclusion is
supported by the stipulated facts. The dispute over the HSP agreement only arose because the

21 R.. Br., p. 10, fn. 5.
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Respondent itself included a reference to the agreement in its November 23, 2015 scope-of-unit-
work bargaining proposal. The Respondent thereby put into play what services it furnished to
DirecTV pursuant to the agreement. The Company was seeking in bargaining to classify any
work performed outside of the agreement as nonbargaining unit work. The Union certainly is
entitled to know the universe of bargaining unit work as defined in the agreement, in 5
evaluating the Respondent’s proposal. Moreover, the Respondent repeatedly told the Union it
had provided all relevant parts of the HSP agreement in this regard. In its initial, three-page
response dated December 4, 2015, the Respondent provided only a portion of the agreement it
alone deemed “relevant to scope of work.” Thereafter, on March 16, the Union asked for a full
copy of the HSP agreement and reiterated that the Respondent referenced the agreement in its 10
new product lines proposal. At the bargaining session on March 22, Simon again stated the
Company already had provided all the relevant portions of the agreement. The Union then
resubmitted its request for the full agreement on both April 5 and May 19.
Thus, the question presented is whether the Respondent unilaterally could decide what 15
portions of the HSP agreement were relevant, only turn over those portions, and then refuse to
provide the remainder of the agreement when the Union requested it. Board precedent is clear
that the Respondent was not entitled to do so. In this regard, the factual situation here is similar
to that in Piggly Wiggly, supra. In that case, a union requested sales and franchise agreements
from an employer, whom it suspected had an alter-ego relationship with certain franchisees. 20
The employer argued, in part, that the requested information was unnecessary, because its
attorney had provided one paragraph of an agreement to the union and later told the union that
the documents requested contained no other relevant information. The judge rejected the
employer’s argument that the response was sufficient and it did not have to provide the full
agreements. The judge stated: “The [u]nion is not required to take the [employer’s] word for it, 25
but has the right to assess and verify for itself the accuracy of the [employer’s] claims in
bargaining.” The Board adopted the judge’s conclusion that the employer violated the Act, by
delaying in providing the agreements. See also Knappton Maritime Corp., 292 NLRB at 239–240
(providing an excised copy of a sales agreement, but not the full, original copy, violated the
Act); Southern Ohio Coal Co., 315 NLRB 836, 844–845 (1994) (an employer telling a union its 30
version of what was in, and not in, a sales agreement did not satisfy the union’s right to have
access to an unexcised copy of that agreement).
Furthermore, the Union’s inability to identify other specific relevant information in the
HSP agreement cannot be held against it, since it has never seen the agreement. Olean General 35
Hospital, 363 NLRB No. 62, slip op. at 7 (2015). In Olean General, a union requested a copy of a
patient care survey conducted by a third party. Staffing had been an issue in contract
negotiations. The Union wanted to determine if staffing was addressed in the report, even
though it had no knowledge the survey contained such information. The Board rejected the
employer’s claim that the union failed to demonstrate a specific need for the patient care 40
survey. The Board noted that, since the employer had seen the report and knew what was in it,
the employer had ample opportunity to show that the information in it would be of no benefit
to the union. The same principle applies in this case. Although it did provide a partial response
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to the Union, the Respondent never made an attempt to show the Union that the remainder of
the HSP agreement lacked information relevant to the scope of unit work.
Finally, the Respondent contends the Union never objected to its providing only three
pages of the HSP agreement. It is true that the Union never stated the partial response was 5
inadequate. It also did not provide much in the way of an explanation as to why it needed the
full HSP agreement. Nonetheless, what the Union did do was submit a request for the full
agreement, on three occasions, after receiving the Company’s initial response. The Union’s
conclusion that the initial response was not sufficient obviously can be inferred from its
subsequent requests for the full agreement.10
For all these reasons, I conclude that relevance is established here, because the Union is
entitled to verify the Respondent’s claim that it has provided all portions of the HSP agreement
relevant to the scope of unit work. By failing to provide the full, unredacted HSP agreement,
the Respondent violated Section 8(a)(5).2215
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
20
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to
provide the Union with information it requested on March 18 and May 19, 2016,

22 The General Counsel did not advance the legal theory upon which I am finding a violation.
Nonetheless, under the circumstances of this case, I find it appropriate to exercise my discretion in this
manner. See, e.g., Local 58, International Brotherhood of Electrical Workers (Paramount Industries, Inc.), 365
NLRB No. 30, slip op. at 4 fn. 17 (2017) (where the violation was alleged in the complaint, the factual basis
for the violation was clear from the record, the law was well established, and no due process concerns
were implicated, the Board found a violation on a different legal theory than that pursued by the General
Counsel); Riverside Produce Co., 242 NLRB 615, 615 fn. 2 (1979) (where the allegations were generally
encompassed in the complaint, the issues were fully litigated, and the record fully supported the
conclusions, the Board approved of a judge’s finding of violations not specifically alleged in the
complaint). Because this case was submitted pursuant to a stipulated record, no factual disputes exist.
The complaint contained an allegation of unlawful conduct by the Respondent, specifically its refusal to
provide the Union with a full copy of the HSP agreement. The parties similarly agreed that the issue in
this case was “Whether the Respondent has violated Section 8(a)(5) of the Act by failing and refusing to
provide the Union with a full unredacted copy of the [HSP agreement] between DirecTV and DirectSat.”
(Stipulation of facts, p. 2.) The complaint allegation and statement of the issue are sufficiently broad to
encompass this legal theory. As a result, the Respondent has not been denied due process. Indeed, the
Respondent addressed this theory in its brief. It repeatedly argued that the Union did not object to its
initial response. In doing so, the Respondent advanced the contention that its initial response was
adequate under the law. Finally, the stipulated facts fully support finding a violation on this basis.
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specifically a full, unredacted copy of the Home Service Provider agreement between
the Respondent and DirecTV. The HSP agreement is necessary and relevant to the
Union’s performance of its duties as the collective-bargaining representative of unit
employees.23
5
4. The above unfair labor practice affects commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
REMEDY
10
Having found that the Respondent 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. Specifically, the Respondent must cease and desist from refusing to
provide the Union with requested information that is necessary and relevant to the performance
of its duties as the exclusive collective-bargaining representative of the Respondent’s 15
installation and service technicians. The Respondent also must provide the Union with a full,
unredacted copy of the HSP agreement.

23 After the parties submitted their briefs, the Respondent filed a motion to strike portions of the
Union’s brief, because they were not a part of the stipulated record. The first section at issue is entitled:
“The Possible Joint Employer Status of DirectSat and DirecTV.” In this section, the Union contends that,
during the time period when it requested the full HSP agreement, it became aware that the issue of
whether the Respondent and DirecTV were joint employers was being litigated in a Fair Labor Standards
Act case in Federal court. However, this fact is not in the stipulated record. Thus, I agree with the
Respondent that, in this regard, the Union is inappropriately seeking to introduce new facts that are not
properly before me for consideration. The Union also attached a decision of the Fourth Circuit Court of
Appeals from January 2017, well after the material dates in this case, concerning the joint employer status
of the two companies. The Union requested that I take judicial notice of the decision, as well as the
Union’s reliance on the decision as part of the reason for its information request. Of course, a judge can
take judicial notice of an appellate court’s decision on a material legal issue. But the Union’s claimed
reliance on this decision is a factual, not a legal, matter. Any such reliance to substantiate its information
request had to be presented either at the time the request was made or in the stipulated factual record.
Neither occurred. Thus, I grant the Respondent’s motion to strike this portion of the Union’s brief and
have not considered that section in reaching this conclusion of law.
The second brief section at issue is entitled: “How A Technician’s Earnings Are Determined.”
Therein, the Union addresses the concurrent information requests it submitted to the Respondent
concerning DirecTV’s performance standards, as well as the technicians’ scorecards and performance
metrics. Contrary to the Respondent’s contention, the stipulated record does contain facts regarding the
performance standards information requests. (Stipulation of facts, par. 28; Jt. Exh. 19.) Thus, I deny the
Respondent’s motion to strike this section. Nonetheless, as previously discussed, the General Counsel’s
complaint in this case alleges only the Respondent’s failure to provide the full HSP agreement, not any
information concerning performance standards. The General Counsel’s brief contains no argument
concerning performance standards, including their relation, if any, to the requests for the full HSP
agreement. That issue simply is not before me. Accordingly, I find the Union’s performance standards
argument has no bearing on the complaint allegation here and I do not rely upon that section of the
Union’s brief in reaching this conclusion of law.
JD–57-17
-13-
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended24
ORDER
5
The Respondent, DirectSat USA, LLC, South Holland, Illinois, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
10
(a) Failing and refusing to bargain collectively with the International
Brotherhood of Electrical Workers, Local Union 21, AFL–CIO, by failing to
provide information requested by the Union that is necessary and relevant
for the Union’s performance of its duties as the collective-bargaining
representative of the employees in the Unit. 15
(b) 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.
20
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days, provide the Union with a full, unredacted copy of the Home
Service Provider agreement between the Respondent and DirecTV.
25
(b) Within 14 days after service by the Region, post at its facility in South
Holland, Illinois, copies of the attached notice marked “Appendix.”25 Copies
of the notice, on forms provided by the Regional Director for Region 13, after
being signed by the Respondent's authorized representative, shall be posted
by the Respondent and maintained for 60 days in conspicuous places 30
including all places were notices to employees are customarily posted. In
addition to the physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or 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 35
Respondent to ensure that the notices are not altered, defaced, or covered by

24 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.
25 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–57-17
-14-
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 March 18, 2016.5
(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 Regional
Director attesting to the steps the Respondent has taken to comply.
10
Dated, Washington, D.C., July 20, 2017.

Charles J. Muhl
Administrative Law Judge
a-g4-40e
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 fail and refuse to bargain in good faith with the International Brotherhood of
Electrical Workers, Local Union 21, AFL-CIO (the Union), by failing to provide the Union with
information that is necessary and relevant to the performance of its duties as the exclusive
collective-bargaining representative of employees in the following, appropriate bargaining unit:
All full-time and regular part-time Installation/Service
Technicians employed by the Employer at its facility located in
South Holland, Illinois, but excluding all other employees,
confidential employees, guards, and supervisors as defined in the
National Labor Relations Act.
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 of this order, provide the Union with a full, unredacted copy of the
Home Service Provider agreement between us and DirecTV. The Union requested this
information on March 18 and May 19, 2016 and the information is relevant to the Union’s duties
as your collective-bargaining representative.
DIRECTSAT USA, LLC
(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.
Dirksen Federal Building, 219 S. Dearborn Street, Suite 808, Chicago, IL 60604–5208
(312) 353–7570, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/13-CA-176621 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, (312) 353–7170.