Dish Network Corporation

National Labor Relations Board - Board Decisions

Jun 28, 2018

366 NLRB No. 119 (N.L.R.B. 2018)

366 NLRB No. 119
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Dish Network Corporation and Communications
Workers of America, AFL–CIO. Cases 16–CA–
173719, 16–CA–173720, 16–CA–173770, 16–CA–
177314, 16–CA–177321, 16–CA–178881, and 16–
CA–178884
June 28, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, KAPLAN, AND EMANUEL
On January 23, 2017, Administrative Law Judge Rob-
ert A. Ringler issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party Union each
filed an answering brief, and the Respondent filed a reply
brief. In addition, the General Counsel filed cross-
exceptions and a supporting brief, the Respondent filed
an answering brief, and the General Counsel filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions, cross-exceptions, and briefs and
has decided to affirm the judge’s rulings, findings,1 and
conclusions and to adopt the judge’s recommended Or-
der.2
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by implementing its “last, best,
and final offer” and unilaterally changing unit employ-

1 The Respondent and the General Counsel have implicitly excepted
to some of the judge's credibility findings. The Board's established
policy is not to overrule an administrative law judge's credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) by telling employees “the Union is gone,” by
implicitly and explicitly threatening employees with adverse conse-
quences if they engaged in protected and/or union activities, and by
creating the impression of surveillance; and violated Sec. 8(a)(5) and
(1) by unilaterally changing its disciplinary policy and discharging unit
employee Dakota Novak without affording the Union preimplementa-
tion notice and an opportunity to bargain.
2 The General Counsel seeks a make-whole remedy that includes
consequential damages incurred as a result of the Respondent’s unfair
labor practices. The relief sought would require a change in Board law.
Having duly considered the matter, we are not prepared at this time to
deviate from our current remedial practice. Accordingly, we decline to
order this relief at this time. See, e.g., Laborers International Union of
North America Local 91 (Council of Utility Contractors), 365 NLRB
No. 28, slip op. at 1 fn. 2 (2017).
ees’ terms and conditions of employment in the absence
of a valid impasse. In making this finding, however, the
judge failed to explicitly apply the analysis set forth in
Taft Broadcasting Co., 163 NLRB 475 (1967),3 for de-
termining whether the parties have reached a valid im-
passe. Under Taft Broadcasting, the Board will consider
the totality of the circumstances, including “[t]he bar-
gaining history, the good faith of the parties in negotia-
tions, the length of the negotiations, the importance of
the issue or issues as to which there is disagreement,
[and] the contemporaneous understanding of the parties
as to the state of negotiations.” Id. at 478. Applying that
analysis here, we affirm the judge’s conclusion.
I. FACTS
The Respondent and the Union began bargaining for a
first collective-bargaining agreement at a July 8, 2010
bargaining meeting, and they held about 25 bargaining
sessions until their last face-to-face meeting on Novem-
ber 18, 2014. By November 2014, the parties had
reached agreement on many issues, but the thorniest is-
sue remaining (and throughout bargaining) was whether
the Respondent would keep the incentive-based Quality
Performance Compensation (QPC) system. Initially, the
Union fought against QPC in favor of a straight hourly
wage schedule, but the parties ultimately switched posi-
tions in 2012 or 2013 because the QPC formulas increas-
ingly resulted in higher compensation than the Respond-
ent had intended and the Respondent had abandoned
QPC at its unrepresented locations.
At the November 18, 2014 bargaining session, the Re-
spondent made a “final proposal” that included wholly
eliminating QPC. Although the Union had to reschedule
the early December 2014 bargaining dates because its
negotiator experienced a death in her family, the Re-
spondent rejected all of the Union’s alternative dates and
conditioned any further meetings on written responses to
its final offer. Additionally, the Respondent informed
the Union that failure to provide such responses would
result in a declaration of impasse. The Union reluctantly
replied with counterproposals via email on December 9,
2014, and again requested that the parties meet. Repre-
senting the Union’s most significant movement on QPC
in at least a year, the Union offered to eliminate QPC for
all new hires. The Union advised that it “stand[s] firmly
on the need to bargain” in person over the counterpro-
posals and requested dates to meet.
In subsequent email exchanges, the Respondent first
offered to meet within the next week, but retreated from
meeting after it became clear the Union was unavailable

3 Review denied sub nom. Television Artists AFTRA v. NLRB, 395
F.2d 622 (D.C. Cir. 1968).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
until the first week of January 2015 because of prior
commitments. On December 18, 2014, the Respondent
sent an email that rejected the Union’s December 9 coun-
terproposals, stood by the terms of its November 18 pro-
posal, and stressed the proposal was the “last, best and
final offer.” Concluding the email, the Respondent
wrote, “We ask that you take our final offer to your
members and let us know if the proposal is accepted.
Once we know whether DISH’s final offer is accepted or
rejected, we can discuss if further bargaining is warrant-
ed.”
In a December 30, 2014 email, the Union spurned the
Respondent’s requirement that the Union take the Re-
spondent’s offer to its membership, again requested that
the parties meet and confer face-to-face over the parties’
proposals, and set forth six specific dates in January
when the Union was available to meet. The Respond-
ent’s counsel replied on December 31, “Based upon your
email below, it does not appear that you are willing to
take our final offer to your bargaining unit . . . . My
partner, Brian Balonick will be taking over for me. I
have apprised him of the status of negotiations and he
will be getting back to you sometime after the new year.”
The Respondent never did get back to the Union, as
promised, in 2015. Over a year later, on January 8, 2016,
the Respondent sent a letter asking the Union if it was
going to accept its November 18, 2014 final offer. In a
January 13 letter, the Union emphasized that it had, as a
courtesy to the Respondent, departed from its normal
practice by emailing its counterproposals in December
2014 rather than submit them at a bargaining session, and
renewed its insistence that the parties meet and bargain.
The Union also rejected the Respondent’s claim that it
had permitted negotiations to languish for over a year,
explaining that it had offered dates for future bargaining
which the Respondent promised its new representative
would respond to, but he did not. The Respondent de-
clared impasse for the first time in a February 2, 2016
email. On February 3, the Union yet again insisted on
the face-to-face bargaining session it had been trying to
schedule since November 2014. The Respondent again
ignored the Union’s request for bargaining, and on April
4, 2016, the Respondent announced that it would be im-
plementing its final offer on April 23, 2016.
II. ANALYSIS
The Board has long defined impasse as a situation
where “good-faith negotiations have exhausted the pro-
spects of concluding an agreement.” Taft Broadcasting,
supra, 163 NLRB at 478; see also Newcor Bay City Divi-
sion, 345 NLRB 1229, 1237–1238 (2005). In Hi-Way
Billboards, Inc., 206 NLRB 22, 23 (1973), enf. denied on
other grounds, 500 F.2d 181 (5th Cir. 1974), the Board
explained:
A genuine impasse in negotiations is synonymous with
a deadlock: the parties have discussed the subject or
subjects in good faith, and, despite their best efforts to
achieve agreement with respect to such, neither party is
willing to move from its respective position. [Footnote
omitted].
The party claiming impasse bears the burden of demonstrat-
ing its existence. Serramonte Oldsmobile , 318 NLRB 80,
97 (1995), enfd. in pert. part 86 F.3d 227 (D.C. Cir.
1996). Under the Taft Broadcasting analysis, as noted be-
low, we find that the Respondent has failed to carry this
burden.
By December 2014, the parties had bargained in nu-
merous sessions for more than 4 years over a first collec-
tive-bargaining agreement,4 and QPC remained the most
important issue of disagreement. Even if the parties may
have been near a valid impasse then, and the Respondent
never asserted impasse at that point, the Respondent
“was not warranted in assuming that further bargaining
would be futile”5 from the events that followed. When
the Union proposed, on December 9, 2014, to eliminate
QPC for new hires, it was an appreciable change in its
position on the most important subject and would result
in cost savings for the Respondent. As the judge found,
“[t]his ’white flag’ offered a possible resolution on bar-
gaining’s thorniest issue, and created the real possibility
of fruitful discourse.” Accord: Hayward Dodge, Inc.,
292 NLRB 434, 468 (1989) (“movement sufficient to
open a ray of hope with a real potentiality for agreement
if explored in good faith in bargaining sessions” would
preclude impasse (internal quotation marks omitted)).
Rather than explore this real possibility of fruitful dis-
cussion, however, the Respondent rejected the Union’s
repeated requests for a face-to-face bargaining session.
Under Section 8(d) of the Act, collective bargaining
means “performance of the mutual obligation of the em-
ployer and representative of the employees to meet at
reasonable times and confer in good faith.” Our prece-
dent is clear that only in-person, face-to-face meetings
satisfy the Act’s obligation to meet and confer. See Twin
City Concrete, Inc., 317 NLRB 1313, 1313–1314 (1995);
Fountain Lodge, Inc., 269 NLRB 674, 674 (1984). The
Respondent, never claiming before February 2016 that

4 Regarding bargaining history, we are mindful that parties’ attempt-
ing to reach an initial collective-bargaining agreement is “a factor mili-
tating against jumping to any conclusions that difficulties in bargaining
signal the existence of a true impasse.” See Stein Industries, 365
NLRB No. 31, slip op. at 3 fn. 9 (2017).
5 Nexeo Solutions, LLC, 364 NLRB No. 44, slip op. at 12 (2016).
DISH NETWORK CORP. 3
the parties were at impasse, denied all of the Union’s
requests for in-person bargaining since the Union’s sig-
nificant counterproposal on December 9, 2014. The Re-
spondent’s refusals to meet and confer contravened Sec-
tion 8(a)(5) and (1) and amounted to bad faith.6 Further,
concerning the contemporaneous understanding of the
parties, the Union reasonably disagreed that the parties
were at an impasse. The Respondent summarily rejected
the Union’s counterproposal on QPC, the most important
bargaining issue, without ever holding a bargaining ses-
sion, as required by the Act, to explore potential avenues
for agreement opened by the Union’s change in position.
Our colleague would rely on the year-long delay in
bargaining between December 2014 and January 2016 as
supporting a finding that the parties were at impasse.
However, we disagree that the Union is to blame for this
delay. The Respondent’s last communication on De-
cember 31, 2014, informed the Union that Balonick
would be the Respondent’s new negotiator and that it
“apprised [Balonick] of the status of negotiations and he
will be getting back to you sometime after the new year.”
Balonick, however, inexplicably waited over 12 months
before contacting the Union. The Union may have bene-
fited from the status quo during the delay, but the Union
had already made abundantly clear its desire to meet and
confer, and the Respondent would not bargain.
Accordingly, under the rubric set forth in Taft Broad-
casting, we find that the parties were not at a valid im-
passe when the Respondent implemented its “last, best,
and final offer.” Specifically, the parties’ history shows
that they were engaged in difficult bargaining for an ini-
tial contract; the Respondent failed to bargain in good
faith over the most important outstanding issue, the QPC;
and the Union consistently sought additional bargaining
sessions, reflecting its understanding that the parties had
not yet reached impasse. Taken together, these facts
demonstrate that the parties were not at impasse even
considering the year-long hiatus in bargaining. Particu-
larly significant to our determination that impasse had
not been reached was the Union’s substantial movement
on the QPC issue and the Respondent’s refusal to meet
and confer even once over this meaningful counterpro-
posal by the Union on the most important issue separat-
ing the parties.7

6 To the extent that the Respondent also conditioned further bargain-
ing on the Union’s submitting the Respondent’s offer to unit employees
for a ratification vote, which is not a mandatory subject of bargaining,
the Respondent also evinced a lack of good faith. See, e.g., Jano
Graphics, Inc., 339 NLRB 251, 251 (2003) (employer’s continued
insistence on a ratification vote tainted any subsequent impasse).
7 We respectfully disagree with our dissenting colleague that the
Respondent could effectively reject the Union’s counterproposal here
without meeting and conferring, as requested by the Union.
We therefore affirm the judge’s finding that the Re-
spondent violated Section 8(a)(5) and (1) by unilaterally
changing unit employees’ terms and conditions of em-
ployment.8
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Dish Network Corporation,
Farmers Branch and North Richland Hills, Texas, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Dated, Washington, D.C. June 28, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER EMANUEL, dissenting.
I disagree with the majority’s findings in several re-
spects. First, I believe, contrary to the judge and the ma-
jority, that at least as of April 23, 2016, when the Re-
spondent implemented its final offer, the parties were at a
valid impasse. In its December 30, 2014 email, the Un-
ion insisted on bargaining over its recent proposals
(which the Respondent had already rejected), and it of-
fered meeting dates in January 2015. In its response, the
Respondent stated that it rejected the Union’s proposals
and again acknowledged that the Union was rejecting its
final offer. Thus, after approximately 25 bargaining ses-
sions over more than 3 years, it appeared that further
bargaining would not be productive. The Respondent
also announced that it was replacing its chief negotiator,
George Basara, with Brian Balonick.
After December 2014, the Union made no attempt to
contact the Respondent for more than 12 months when,
on January 8, 2016, Balonick contacted the Union. This

8 The General Counsel cross-excepts to the judge’s finding that it
was unnecessary to decide the complaint allegation that the Respond-
ent’s unilateral implementation of its “last, best, and final offer” violat-
ed Sec. 8(a)(3) and (1) because it was unlawfully motivated. We agree
with the judge that it is unnecessary to decide this allegation because
such a finding would not materially affect the remedy.
We adopt, for the reasons stated by the judge, his finding that the
Respondent violated Sec. 8(a)(3) and (1) by constructively discharging
17 employees who resigned their positions because of the Respondent’s
unlawful unilateral reductions in their wages and health benefits.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
delay severely undermines the Union’s alleged urgency
and interest in further bargaining. Rather, it appears that
the Union was content with the status quo, which includ-
ed the generous Quality Performance Compensation Sys-
tem (QPS), the primary sticking point in negotiations that
the Respondent insisted on eliminating. Following an
additional 2-month gap in communications from Febru-
ary 3 to April 4, 2016, the Respondent repeated its final
offer, which had not changed since December 2014, reit-
erated its belief that further bargaining would be futile,
and stated its intention to implement the final offer on
April 23, 2016. The Union did not respond, and the Re-
spondent implemented the final offer.
Based on the above, I would find that the parties were
at impasse at least by April 23, 2016. Thus, I would
dismiss the charge that the Respondent’s actions violated
Section 8(a)(5). In light of that finding, I would remand
to the judge the allegation that, by implementing its final
offer, the Respondent violated Section 8(a)(3). The
judge did not decide that allegation or evaluate the under-
lying evidence regarding the Respondent’s alleged un-
lawful motive for its actions.
Further, because I would find that the Respondent law-
fully implemented the terms of its final offer, I would
also remand the allegation that the 17 employees who
resigned were constructively discharged. Because I
would dismiss the 8(a)(5) allegation, there is no support
for a constructive discharge under the theory applied by
the majority. I would therefore instruct the judge to de-
termine whether the evidence showed that the Respond-
ent intended to cause a change in working conditions so
intolerable that no reasonable employee could be ex-
pected to remain in employment, and that the Respond-
ent did so because of the employee’s union activities.
See Crystal Princeton Refining Co., 222 NLRB 1068,
1069 (1976). Absent such a finding, the General Coun-
sel failed to make its case that the 17 employees were
constructively discharged.
Dated, Washington, D.C. June 28, 2018
______________________________________
William J. Emanuel, Member
NATIONAL LABOR RELATIONS BOARD
David A. Foley, Charles Guzak, and Karla R. Mata, Esqs., for
the General Counsel.
Brian D. Balonick, Brian A. Casal, and David J. Strauss, Esqs.
(Buchanan, Ingersoll & Rooney P.C.), for the Respondent.
Matthew Holder, Esq. (David Van Os & Associates, P.C.), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This hear-
ing was held in Fort Worth, Texas, over 7 days in August and
September 2016. The complaint alleged that the Dish Network
Corporation (the Dish or Respondent) violated Section 8(a)(5),
(3), and (1) of the National Labor Relations Act (the Act) by,
inter alia: threatening employees; bargaining in bad faith with
the Communication Workers of America, AFL–CIO (the Un-
ion); implementing a final offer in the absence of an impasse;
making unilateral changes in the wages, health insurance cov-
erage, and leave provided to its union employees; and construc-
tively discharging 17 union employees. The controlling facts in
this case are mainly undisputed.
On the entire record,1 including my observation of the wit-
nesses’ demeanors, and after considering posthearing briefs, I
make the following
FINDINGS OF FACT2
I. JURISDICTION
At all material times, Dish, a Colorado corporation, with a
corporate office in Englewood, Colorado, and numerous branch
offices, including its Farmers Branch and North Richland Hills,
Texas offices (the FB and NRH hubs), has provided satellite
television services. Annually, it purchases and receives at the
FB and NRH hubs goods worth more than $50,000 directly
from points outside of Texas. Based upon the foregoing, it
admits, and I find, that it is an employer engaged in commerce,
within the meaning of Section 2(2), (6), and (7) of the Act. I
also find that the Union is a labor organization, within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The FB and NRH hubs warehouse supplies, and dispatch
technicians for installations and repairs in the Dallas-Fort
Worth area. This litigation involves the unionization of these
workers.
A. Introduction of QPC and Unionization
The FB and NRH employees unionized after Dish introduced
the Quality Performance Compensation System (QPC) at their
hubs. See (GC Exh. 132). This novel, incentive-based pay
system significantly changed their existing pay system. See
(CP Exh. 62). Moreover, although QPC offered enhanced em-
ployees’ productivity bonuses, it cut base wage rates, which
created overall dissatisfaction and led to the Union’s organizing
effort.
B. FB and NRH Bargaining Units
In 2011, the Union became the designated exclusive collec-

1 The Charging Party’s November 17, 2016 motion, which seeks to
correct the mislabeling of two exhibits, has been granted. CP Exh. 122,
as a result, which is a letter dated May 29, 2014, shall remain as origi-
nally marked, and CP Exh. 122, a 9-line spreadsheet, shall be revised
and newly marked as CP Exh. 122A.
2 Unless otherwise stated, factual findings arise from joint exhibits,
stipulations, and undisputed evidence.
DISH NETWORK CORP. 5
tive-bargaining representative of the following group of work-
ers employed at the FB hub (the FB unit):3
INCLUDED: All regular full-time and part-time technicians
and warehouse employees. . . .
EXCLUDED: All other employees including quality assur-
ance employees, marketing and sales employees, commercial
technicians, managers, office clerical, guards and supervisors
as defined in the Act.
It also, almost simultaneously, became the designated repre-
sentative of the same set of workers employed at the NRH hub
(the NRH unit):4
C. Bargaining History
1. Background
Following the Union’s certification, the parties commenced
joint bargaining for an initial contract for the FB and NRH
units. The Union was initially represented in bargaining by
Donna Bentley and, thereafter, was represented by Sylvia Ra-
mos. Dish was initially represented by attorney George Basara
and, thereafter, was represented by his law partner, Brian Balo-
nick. It would be an understatement to say that bargaining over
QPC and other matters proved keenly difficult.5 Although
roughly 25 bargaining sessions were held, a contract never
resulted.
Given that employees’ organizing efforts were connected to
QPC, it is not surprising that QPC played a major bargaining
role. It is startling, however, that, even though the parties
swapped positions on QPC during negotiations, common
ground on this issue was never reached. Ironically, the Union,
which initially wanted to abolish QPC, later sought to retain it,
once employees became comfortable and discovered that it
increased their wages. Dish, which initially wanted to keep
QPC, later desperately fought to eliminate it, after it concluded
that employees were making too much money under this pay
system.
Additionally, because bargaining demands often change with
employee turnover, it is noteworthy that the FB and NRH units
had extremely high attrition rates.6 In 2014, the FB unit had an
attrition rate of 31.4 percent, whereas the NRH unit’s rate was
30.5 percent. (R. Exh. 53.) In 2015, the FB unit had an attri-
tion rate of 19.6 percent, while the NRH unit’s rate was 13.1
percent. (R. Exh. 53; CP Exh. 120.)

3 There are approximately 24 employees in the FB unit.
4 There are approximately 21 employees in the NRH unit.
5 Beyond substantive difficulties, Union Negotiators Ramos and
Bentley complained about Basara’s hard bargaining tactics. They
averred that this stymied negotiations, which were already tenuous
given their nascent relationship. Their testimony was corroborated by
bargaining notes and correspondence.
6 Priorities often change as incumbents leave, and are replaced by
new hires with different goals.
2. Allegedly closed matters7
Before Dish declared impasse and bargaining ceased, the
parties reached oral agreement on many issues. By March
2013, they reached unsigned resolutions on, inter alia, these
subjects: job classifications; union recognition; travel; leave;
401K plan; and benefits. (GC Exh. 42.) On June 19, 2013,
Bentley summarized the status of negotiations and emailed
Basara that 5 issues remained: dues deductions; griev-
ance/arbitration; seniority; wages; and contracting. (R. Exh.)
3. Events leading to Dish’s impasse declaration
a. Dish’s November 18, 2014 final proposal
On this date, the parties held what eventually turned out to
be their last in-person bargaining session. At this time, Dish
tendered its first in a series of “final proposal[s]” to the Union,
which proposed, inter alia, discontinuing QPC, and set forth
this hourly wage schedule:8
FSS I FSS II FSS III FSS IV ISP Sr. ISP
$13.00 $14.00 $16.00 $17.00 $11.50 $12.00
(GC Exh. 2.) While Dish rejected the Union’s proposals on
dues deductions, grievance/arbitration, successorship, subcon-
tracting, severance and seniority, it agreed to provide smart
home sales and clothing stipends. (R. Exh. 4.)
Although the parties had meetings scheduled for December 8
and 9, Ramos canceled due to the passing of a family member.
(GC Exh. 21.) She offered, however, alternative dates in Janu-
ary and February 2015, which Dish rejected. Basara, instead,
conditioned reconvening on the Union replying in writing to his
November 18 proposal and warned that, if it refused, impasse
would be declared. (Id.)
b. Union’s December 9, 2014 proposal
The Union complied with Basara’s threat, submitted a coun-
teroffer, and again requested a meeting. The Union’s new pro-
posal represented a substantial compromise, inasmuch as it
partially capitulated on QPC, a major roadblock. To this end,
the Union creatively proposed a 2-tierred wage system, where
incumbents retained QPC, and new hires received the tradition-
al wage schedule Dish was seeking. (GC Exhs. 4, 5.) Alt-
hough this proposal did not represent the complete abolishment
of QPC that Dish desired, it still provided cause for optimism.
As noted, Dish’s technicians had a very high attrition rate,
which meant that the Union’s proposal made it probable that
new hires receiving non-QPC rates would soon become the
majority in the FB and NRH units, as the attrition rate contin-
ued. (R. Exh. 53 (annual attrition ranging from 116% to 13%)).
This, in turn, meant that Dish would have attained most of what
it wanted on wages in the short term, and would have set the
stage for a fuller resolution on QPC in later bargaining (i.e.,

7 These issues are identified as “allegedly” closed because, although
the parties ceased bargaining about these matters, Basara reserved the
right to later revisit the validity of any allegedly closed issue, “[if]
there’s something significant in bargaining that would make . . . [him]
alter that particular agreement.” (Tr. 1105.)
8 “FSS” means field service specialist, i.e., technician, while “ISP”
means inventory specialist, i.e., warehousemen.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
eventually abolishing QPC would have become an easier sell-
ing point in later bargaining, when only a narrow minority paid
under QPC remained). The Union also offered counterpro-
posals on: dues deduction; grievance procedure; seniority; sub-
contracting; successorship; smart home sales; and severance
pay. (GC Exhs. 4, 5.)
c. Email exchanges about scheduling another
bargaining session
On December 9, 2014, Basara proposed to meet the follow-
ing week. (GC Exh. 98.) His email conspicuously failed to
declare an impasse, or state that scheduling another session
would be futile. On December 11, Ramos replied that January
2015, was her earliest available slot. (GC Exh. 23.) Basara
expressed shock about her short-term unavailability and refused
to meet. (GC Exh. 23.) On December 12, Ramos repeated her
offer to meet in January. (GC Exh. 25.)
d. Dish’s December 18, 2014 final offer
On this date, Basara reneged on his earlier meeting offer and
terminated bargaining:
I . . . have met . . . on many occasions in an effort to reach an
agreement. . . . [We] were able to reach agreement on Articles
1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 23 and
26. . . .
On November 19, 2014, your bargaining team provided me
with their proposals on the remaining issues. . . .
On that same day, DISH responded . . . with a final offer . . .
On . . ., December 4, . . . you . . . suffered a death in your fam-
ily and . . . the bargaining sessions were cancelled. . . .
On December 9, . . . you emailed . . . [your] response to my
final offer . . . I offered to meet with you . . . in December. . . .
[but] you . . . could not meet until January. . . .
I have now reviewed your proposals and offer the following
responses:
Article 4 Dues Deduction. DISH will not agree to your pro-
posal. . . .
Article 5 Grievance Procedure . . . DISH rejects your pro . . .
Article 13 Seniority. DISH rejects the Union’s proposal. . . .
Article 15 Wages and Compensation. DISH rejects the . . .
wage proposal. . . .
Article 22 Subcontracting. . . . The Union’s proposal is re-
jected.
Article 24 Sale of Operation. . . . DISH will not accept [the]
proposal. . . .
Article 25 Smart Home Sales. DISH . . . agreed . . . to . . .
Smart Home Sales. . . .
Article 27 Participatory Management. . . . This proposal is re-
jected.
Article 28 Severance. DISH rejects this proposal. . . .
I have attached . . . DISH’s last best and final offer for your
consideration. We believe that bargaining has been exhausted
and that your recent proposals do not reflect . . . significant
movement from . . . [your] November 18, 2014 [proposal].
We ask that you take our final offer to your members and let
us know if the proposal is accepted. Once we know whether
DISH’s final offer is accepted or rejected, we can discuss if
further bargaining is warranted.
(GC Exh. 3) (italicized emphasis added). No bargaining ses-
sions were thereafter scheduled.
e. Union’s December 30, 2014 email
On December 30, 2014, Ramos replied as follows:
[T]he Union insists on meeting and bargaining over its coun-
terproposals. . . . Your written response . . . does not take the
place of meeting and bargaining. CWA is the exclusive repre-
sentative of the employees and CWA will be the sole judge of
when to present proposals to the Union membership for a
vote. . . .
The Union is available to meet on January 6, 7, 8, 9, 22 and
23. If none of these dates is available . . . please inform me of
any other [available] dates. . . .
(GC Exh. 8) (emphasis added).
f. Dish’s December 31, 2014 reply
On this date, Basara sent the following reply:
[I]t does not appear that you are willing to take our final offer
to your . . . unit. . . .
I will not be representing DISH in the future. My partner,
Brian Balonick will be taking over for me.
I have apprised him of the status of negotiations and he will
be getting back to you sometime after the new year. . . . [H]e
has a trial . . . in . . . [early] January.
(GC Exh. 9.)
g. Dish’s belated January 8, 2016 letter
Balonick, however, failed to contact the Union in early 2015,
as promised. He, instead, inexplicably waited 13 months, be-
fore contacting Ramos in early 2016, when he sent this letter:
Basara left . . . at the beginning . . . [of 2015], [and] I took
over for him. . . .[H]is November 19, 2014, letter . . . present-
ed DISH's . . . final offer. Your letters . . . in December indi-
cated that you rejected our final offer and were unwilling to
take it to your bargaining unit. It has been one year since
your last correspondence. . . . Please let us know by January
15, 2016, whether you accept our final offer. Because . . .
November 19, 2014 [offer is], . . . our final offer, it does not
appear . . . that further bargaining would be productive. If we
do not hear from you by January 15, we will assume that you
. . . reject our final offer. . . .
(GC Exh. 10) (emphasis added).
h. Union’s January 13, 2016 letter
On this date, Ramos replied as follows:
Your letter . . . completely misrepresents . . . negotiations. . . .
I departed from CWA’s normal practice . . . on December 9,
2014 [by providing] written counterproposals in advance of
DISH NETWORK CORP. 7
the next meeting. I made it clear that [this was] . . . a conven-
ience to facilitate . . . discussions at the next meeting that re-
mained to be scheduled. . . . I [did not] suggest that sending
you the proposals would substitute for meeting and confer-
ring. . . . I [did not] waive the Union's right to meet and con-
fer over our counterproposals. To the contrary, my December
9 communication emphasized the need to meet and bargain.
Your implication that CWA has let this matter languish for a
year. . . . is preposterous. In my December 30, 2014 commu-
nication to . . . [Basara,] I offered 6 dates to meet in January
2015. . . .
In . . . response . . . he informed me that you would be taking
over . . . [and] would be getting back in touch with me some-
time after the new year. . . .
It has been over a year since I suggested dates for the next
session. . . . Please send me suggested dates. . . .
(GC Exh. 11.)
4. Declaration of impasse
On February 2, 2016, Balonick sent this reply:
It appears . . . that the Union’s position remains the same. . . .
[T]he parties have been bargaining since 2011. In December
2014, … Basara communicated . . . that bargaining had been
exhausted. For over 12 months, the parties have remained
rigid. . . . We view your January 13 letter as further evidence
. . . [of] a standstill. If you disagree, please explain your posi-
tion . . . . Otherwise, DISH will implement its last, best and
final proposal. . . .
(GC Exh. 18.) On February 3, Ramos dissented and re-
requested bargaining. (GC Exh. 26).
5. Implementation of the final offer
On April 4, 2016, Balonick sent the following letter to the
Union:
DISH . . . delivered its . . . final offer . . . in December 2014.
. . .
[T]he Union rejected DISH's … final offer . . . in December
2014…. [T]he parties have exhausted bargaining. . . . In our
February 2, 2016 letter . . ., DISH requested . . . . explanation
as to why the Union believes that bargaining has not been ex-
hausted. In response, the Union, once again, asked to meet to
bargain.
At this point, DISH believes that further bargaining would be
futile. . . . Therefore, DISH is implementing its . . . final offer
as proposed . . . in December 2014. This last, best, and final
offer includes the following provisions:
 DISH will eliminate QPC and move [to the] . . .
[final offer] rate[s]. . . .
 Full-time[rs] . . . will . . . be scheduled to work for-
ty . . . hours per week. . . .
 Time spent in local travel . . . shall be treated as
work time.
 An employee . . . will receive reimbursement for all
reasonable, necessary and ordinary business ex-
penses . . ., as outlined in the . . . Travel Policy. . . .
 Paid time off benefits are the same for Union and
non-union employees. . . .
 The Company will offer its bargaining unit em-
ployees the same or similar benefits as those of-
fered to non-union technicians . . . [as follows]:
o Dental Plan
o Vision Plan
o Life Insurance Plan (and Supple-
mental Life Insurance)
o Short Term Disability Plan
o Long Term Disability Plan
o Health Care
o Employee Stock Purchase Plan
o 401K Plan. . . .
DISH plans to implement this . . . final offer no later than
April 23, 2016. . . .
(GC Exh. 19); see also (GC Exhs. 27–29).
6. April 5 and 6, 2016 presentations
On these dates, Dish held meetings with the FB and NRH
units, and announced implementation of the final offer. (Tr.
97–100; GC Exh. 114). Employee Chris Moss said that Direc-
tor of Human Resources Lisa Wodell stated that “whatever
wage level we are at is where we would be.” (Tr. 761.) Em-
ployee Santiago Martinez corroborated his account. (Tr. 772–
773.) Regional Director Monty Beckham did not recall this
statement, and averred that employees consistently remained
eligible for promotions. (Tr. 917–918.)
Because Moss and Santiago testified that Wodell effectively
threatened that employees would no longer receive promotions,
and Beckham stated otherwise, a credibility determination must
be made. For several reasons, Beckham has been credited.
First, he was straightforward, and had a strong recall of the
meeting. Moss and Santiago had somewhat weaker recollec-
tions. Second, given that there is no evidence that Dish subse-
quently limited promotions or “leveling up,” it is less probable
that this comment was actually made.
7. April 6, 2016 text
On this date, Field Service Manager Hanns Obere errantly
sent this text message to NRH unit employee Blake Daniels:
The union is gone. Techs will be affixed hourly rates, no pi.
Level 4 will earn 17 dollars an hour. They will earn like the
rest of the company if they transfer to other offices which they
encourage. They have QPC till the 23rd. The two offices are
gradually closing. We will be dispatched to other offices or a
new one will be started. They would rather have the techs
quit en masse. . . .
(GC Exh. 31) (spelling and grammar as in original). Obere
stated that he was solely forecasting what he thought could
happen when QPC ended; he denied, however, that he was told
this by management. See (CP Exh. 87). Daniels disseminated
the text to his coworkers. Beckham subsequently emailed
affected employees, and disavowed the text. (R. Exh. 8.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
8. April 23, 2016 final offer implementation
On this date, Dish implemented its final offer, with the ex-
ception of its health insurance changes, which were enacted in
July. (Tr. 824.) This resulted in the creation of a combined
vacation and sick leave pool.9 It also meant that QPC had ef-
fectively ended, and wages were deeply cut. The health insur-
ance changes included: annual individual deductibles rising
from $1300 to $2500; annual family deductibles rising from
$2600 to $5000; annual out-of-pocket expense limits for indi-
viduals rising from $5,500 to $6,000; and annual out-of-pocket
expense limits for families rising from $11,000 to $12,000.
(GC Exhs. 123–124.)
D. Mass Resignations10
Following implementation, the following 17 employees re-
signed because of the wage and health insurance reductions:
Marcus Tillman; David Dingle; Justin Ripley; Kenneth Daniel;
Bryce Benge; Salvador Bernardino; Preston Dutton; Robert
Thompson; John Carson; Scott Dehart; Robert MacDonald;
Aaron Mason; Aaron Kubesch; Severo Hernandez; John Burns;
Christopher Little; and Michael Cater11 (the resigning employ-
ees).12 The financial consequences associated with implemen-
tation, as noted, were significant, with unit employees receiv-
ing, on average, a 30 percent wage loss,13 and deep health in-
surance cuts. (GC Exhs. 123–24; CP Exh. 100.)
E. Bargaining over Prior Terminations and the Firing of
Dakota Novak
On May 29, 2014, the Union asked Dish to afford it notice
and an opportunity to bargain regarding any suspensions or
discharges of FB and NRH unit employees. (CP Exh. 122.) On
June 13, 2014, Basara assented, and informed the Union that
“we will provide you with advance notice of any suspensions,
demotions or discharge.” (GC Exh. 15.) On October 24, 2014,
Basara implemented this policy and notified the Union about
the contemplated discharge of Seth Hawkins, and on October
31, 2014, the Union requested bargaining. (GC Exh. 14; CP
Exh. 125). On October 31, 2014, Basara similarly informed the
Union about the contemplated discharge of Kevin Goforth, and
on November 6, 2014, the Union requested bargaining. (GC
Exhs. 16–17.) On November 18, 2014, the parties negotiated
over these disciplinary actions; thereafter, Dish implemented

9 In the past, such leave was stored in separate banks.
10 Complaint par. 12(e) was amended at the hearing to add the con-
structive discharges of Severo Hernandez, Aaron Mason, Aaron Ku-
besch, John Burns and Christopher Little. (Tr. 35.)
11 On October 21, 2016, the parties moved to reopen the record and
enter a joint stipulation about Michael Cater. Their joint stipulation
provided that Cater, an NRH unit technician, learned about Obere’s text
and resigned because of the unilateral wage cut. The motion is
GRANTED; complaint par. 12(e) has been amended accordingly.
12 See (Tr. 272–274 (McDonald); Tr. 422 (Dutton); Tr. 436 (Ku-
besch); Tr. 525 (Mason); Tr. 649 (Little); Tr. 675–676 (Daniel); Tr.
694–695 (Dingle); Tr. 729–730 (Benge); Tr. 737–738 (Bernardino); Tr.
748 (stipulation regarding Tillman, Thompson, Burns, Ripley, and
Carson); CP Exhs. 86, 100 (Dingle, Kubesch, Cater, Dutton, Dehart,
McDonald, Mason, Benge, Carson, Hernandez, and Cater)).
13 This calculation was based upon 2015 figures (i.e., $62,132 to
$43,364 is a 30% decrease). (CP Exh. 120.)
final discipline. (CP Exh. 132.) Dish later fired Dakota Novak
on February 19, 2016, without notification or bargaining with
the Union.
F. July 6, 2016—Waeland Thomas Statements
Supervisor Thomas testified that he made these comments to
unit employees:
[W]hen you’re at work . . . do not discuss the union . . . in-
cluding QPC with the new guys. When you're off work, you
can do what you want. . . .
(Tr. 237.)
Employee Carl Miles testified, however, that Thomas placed
a much greater restriction on employees than admitted. He
recalled that Thomas issued this more stringent directive:
Just don’t say anything about the Union to the new guys.
[D]on’t mention QPC. They’re happy getting paid $13.00 an
hour, and they will get phone calls from Dish . . . asking them
if we said anything, and it could lead to termination.
(Tr. 657.)
I credit Miles over Thomas. Miles was corroborated by the
parties’ stipulation.14 It is also implausible that Dish would
have stipulated, and lost a chance to cross-examine this key
witness, if his testimony were incredible. Finally, Miles was
credible, and straightforward.
III. ANALYSIS
A. The 8(a)(5) Allegations15
1. Unilateral implementation of the final offer
a. Legal precedent
In collective bargaining, there must be a “willingness among
the parties to discuss freely and fully their respective . . . de-
mands, and, when these are opposed, to justify them on rea-
son.” NLRB v. George P. Pilling & Son Co., 119 F.2d 32, 37
(3d Cir. 1941). The determination as to whether a party’s bar-
gaining conduct evinces a true desire to reach an agreement is
made by “drawing inferences from the conduct of the parties as
a whole.” NLRB v. Insurance Agents’ Union, 361 U.S. 477,
498 (1960). “Specific conduct, while it may not, standing
alone, amount to a per se failure to bargain in good faith, may
when considered with all of the other evidence, support an in-
ference of bad faith.” Continental Insurance Co. v. NLRB, 495
F.2d 44, 48 (2d Cir. 1974).
A premature declaration of impasse generally constitutes
bad-faith bargaining. CJC Holdings, Inc., 320 NLRB 1041,
1044–1046 (1996), enfd. mem. 110 F.3d 794 (5th Cir. 1997).
Impasse can only be reached, “‘after good-faith negotiations
have exhausted the prospects of concluding an agreement,’ and
there is no realistic possibility that continuation of discussion at
that time would be fruitful.” Id. at 1044 (quoting Television

14 They stipulated that another employee witness, if called, would
have corroborated Miles. (Tr. 687–689.) The transcript, which inaccu-
rately states “weight loss statement,” instead of the “Waeland Thomas
statement” to describe this issue, is hereby corrected.
15 These allegations are listed under complaint pars. 10, 12, 13, and
16.
DISH NETWORK CORP. 9
Artists AFTRA v. NLRB, 395 F.2d 622, 624 (D.C. Cir. 1968),
enfg. Taft Broadcasting Co., 163 NLRB 475 (1967)). Moreo-
ver, a genuine impasse exists, when neither party will move
from their position, in spite of their best efforts to reach agree-
ment. Grinnell Fire Protection Systems Co., 328 NLRB 585
(1999), enfd. 236 F.3d 187 (4th Cir. 2000). The party asserting
impasse has the burden of proof on this issue. Outboard Ma-
rine Corp., 307 NLRB 1333, 1363 (1992), enfd. mem. 9 F.3d
113 (7th Cir. 1993). Although an employer can implement its
final offer at impasse, it violates the Act when it does so prema-
turely. Jano Graphics, Inc., 339 NLRB 251 (2003).
b. Analysis
For several reasons, Dish did not satisfy its burden of prov-
ing that an impasse existed in April 2016. It, as a result, violat-
ed the Act by implementing its final offer on April 23, 2016.
First, the Union estopped bargaining from reaching an im-
passe, when it offered a significant QPC compromise in its
December 9, 2014 proposal. (GC Exhs. 4–5.) Although the
Union’s proposal created the “realistic possibility that contin-
ued discussions would be fruitful,” Dish summarily rejected
this concession, without bargaining. The Union, as noted, of-
fered a substantial giveback, when it proposed a 2-tierred wage
system, where incumbents kept QPC, and new hires lost it.16
This “white flag” offered a possible resolution on bargaining’s
thorniest issue, and created the real possibility of fruitful dis-
course, which was inexplicably left by Dish to wither on the
vine for over a year before it declared impasse. CJC Holdings,
Inc., supra. If Dish had been willing to meet about this substan-
tial giveback, the give and take of bargaining might have led
everyone closer to an agreement; Dish’s failure to explore the
Union’s capitulation on this key issue, by definition, precluded
impasse. See, e.g., Royal Motor Sales, 329 NLRB 760, 772
(1999); Grinnell Fire Protection Systems Co., supra, 328
NLRB at 585, 585–586.
Second, Dish similarly prevented legitimate impasse, when it
repeatedly conditioned ongoing negotiations on a non-
mandatory subject of bargaining, i.e., the Union submitting
Dish’s final offer to the FB and NRH units for a ratification
vote.17 The Union steadfastly rejected this condition,18 which

16 The potential savings associated with the Union’s proposed 2-
tierred wage system was significant, given Dish’s high attrition rates.
(R. Exh. 53 (annual attrition rates from 2013 to 2015 ranging from
116% to 13%)). Given this attrition, the Union’s willingness to aban-
don QPC for new hires, meant that in a short time, the majority of the
FB and NRH units would have likely have turned over and no longer
earn QPC wages. This counter offered Dish much of what it sought on
QPC, and would have likely set in motion the wholesale elimination of
QPC in future bargaining for a successor contract. At a minimum,
however, this concession was worthy of discourse, which, by defini-
tion, precluded impasse.
17 See, e.g., (GC Exh. 3 (on December 18, 2014, Dish stated that
“[w]e ask that you take our final offer to your members and . . . [o]nce
we know whether . . . [it] is accepted or rejected, we can discuss if
further bargaining is warranted.”); GC Exh. 9 (on December 31, 2014,
Dish stated that “[i]t does not appear that you are willing to take our
final offer to your bargaining unit,” and thereafter, refused to schedule
an in-person bargaining session); GC Exh. 10 (on January 8, 2016, Dish
stated that, “[y]our letters . . . in December [2014] indicated that you
has effectively stymied bargaining since December 2014. The
Board has held that conditioning ongoing bargaining on a non-
mandatory subject of bargaining (e.g., a ratification vote) taints
any subsequent impasse, and precludes implementation of a
final offer.19
Third, the lengthy hiatus between the November 2014 bar-
gaining session and the April 2016 implementation of the final
offer weighs heavily against an impasse finding. Airflow Re-
search & Mfg. Corp., 320 NLRB 861, 862 (1996)(“[a]nything
that creates a new possibility of fruitful discussion . . . breaks
an impasse: . . . [including] the mere passage of time.”); Cir-
cuit-Wise, Inc., 309 NLRB 905, 921 (1992)(14-month bargain-
ing hiatus). Given Dish’s high turnover, a lengthy hiatus sug-
gests that, even assuming arguendo that an impasse existed in
2014, which it did not, Dish’s high attrition rate could have
broken the gridlock by 2016, as the FB and NRH units turned
over and new employees might have called for a revised Union
bargaining strategy, which could have brought bargaining to
closure.20
Fourth, the change in Dish’s bargaining agent amplified the
possibility of agreement, which also cuts against an impasse
finding. Simply put, Basara, a hard-bargainer, was substituted
for Balonick, a more diplomatic representative. This trade
increased the chance for positive discourse, and prevented im-
passe. See, e.g., Airflow Research & Mfg. Corp., supra, 320
NLRB at 862 (“possibility for a break of the deadlock was fur-

rejected our final offer and were unwilling to take it to your bargaining
unit.”); (GC Exh. 28) (Dish’s April 19, 2016 letter)).
18 See, e.g., (GC Exh. 8 (On December 30, 2014, the Union stated
that, “CWA is the exclusive representative of the employees and …
will be the sole judge of when to present proposals to the Union mem-
bership for a vote.”)).
19 See, e.g., Jano Graphics, Inc., supra (company’s continued insist-
ence of a permissive subject of bargaining, a ratification vote by union
employees, and its later refusal to bargain tainted subsequent impasse);
Movers & Warehousemen’s Assn., 224 NLRB 356, 357 (1976), enfd.
550 F.2d 962 (4th Cir.), cert. denied 98 S.Ct. 75 (1977) (a ratification
procedure was a nonmandatory subject of bargaining, which would not
permit a company to lawfully lock out employees in support of de-
mands on that subject); Houchens Market, 155 NLRB 729 (1965), enfd.
375 F.2d 208 (6th Cir. 1967) (employee ratification is not a mandatory
bargaining subject on which an employer may insist to impasse);
Grosvenor Resort, 336 NLRB 613 (2001) (employer engaged in bad-
faith bargaining by, inter alia, insisting to impasse on a non-mandatory
subject of bargaining, e.g., the scope of the bargaining unit). Although
the Board has held that, under exceptional circumstances, insistence
upon a nonmandatory bargaining topic does not preclude lawful im-
passe (see ACF Industries, LLC, 347 NLRB 1040 (2006)), this narrow
condition is limited to those cases where the non-mandatory insistence
did not cause the impasse. Cf. National Gypsum Co., 359 NLRB 1058,
1074–1075 (2013) (insistence on ratification vote, which occurred after
impasse, logically could not cause impasse). In the current case, how-
ever, the Union protested this nonmandatory bargaining condition over
a year before Dish’s 2016 declaration of impasse and implementation
of the final offer, which is unlike the National Gypsum scenario, where
insistence on the nonmandatory subject occurred after impasse.
20 In a year, the composition of FB and NRH units changed signifi-
cantly; this might have resulted in these modified units concluding that
the retention of QPC was no longer sustainable, or newer employees
creating a different mandate. This, minimally, met the “new possibility
of fruitful discussion” criteria, which precluded impasse.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
ther heightened by the change in the person representing the
Union for negotiations . . . [which] created the possibility of a
new approach toward the subjects of the earlier impasse);
KIMA-TV, 324 NLRB 1148, 1152 (1997).
Fifth, Dish’s unwillingness to reschedule the December 2014
bargaining session further undercuts an impasse finding. It
logically follows that, if the parties were continuously at im-
passe since November 2014 as Dish avers, veteran labor attor-
ney Basara would never have agreed to meet in December
2014, or offered alternative dates after Ramos cancelled.
Moreover, it is eminently fair to assume that he would not have
wasted his time or client’s resources by meeting during an ex-
tant impasse, following multiple years of bargaining. His dec-
laration of impasse seemed to follow Ramos’ unwillingness to
meet in December 2014, in accordance with his own schedule
and expected departure from his law firm. Basara’s actions, as
a result, appeared more retaliatory than substantive, and are
inconsistent with those of a labor law professional handling an
impasse. Bottom Line Enterprises, 302 NLRB 373 (1991) (em-
ployer cannot react to reasonable cancellation of session by
declaring impasse and threatening implementation).
In sum, several circumstances demonstrate that Dish failed to
meet its burden of proof on impasse. These circumstances
were: Dish’s unwillingness to meet and bargain after the Union
offered a substantial QPC compromise; the unlawful condition-
ing of bargaining on ratification; the passage of time; the
change in negotiators; and Dish’s unwillingness to reschedule a
previously scheduled session.21 Dish was, as a result, not privi-
leged to unilaterally implement its final offer. See generally
Jano Graphics, Inc., supra.
2. Ongoing failure to negotiate since January 13, 2016
Dish violated Section 8(a)(5) by ignoring the Union’s ongo-
ing request to bargain since January 13, 2016. (GC Exh. 11.)
Given that the parties were not at impasse, Dish was under an
ongoing obligation to bargain over wages, hours, and other
terms and conditions of employment regarding the FB and
NRH units. Storer Communications, Inc., 294 NLRB 1056
(1989) (statutory duty to bargain encompasses affirmative duty
to make prompt arrangements, within reason, for meeting and
conferring); Rutter-Rex Mfg. Co., 86 NLRB 470 (1949).
3. Novak’s firing22
Dish unlawfully failed to bargain with the Union over No-
vak’s firing. The Board has described an employer’s obligation
to bargain with a newly established union as follows:
Sections 8(a)(5) and (d) of the Act obligate an employer to
bargain with the representative of its employees in good faith
with respect to “wages, hours and other terms and conditions
of employment.” . . . . Section 8(a)(5) also obligates an em-
ployer to notify and consult with a union concerning changes

21 Many of these factors, even if considered in isolation, precluded
impasse.
22 The General Counsel, in a motion dated November 17, 2016,
moved to withdraw the portion of this complaint allegation, which
relied upon a theory of violation under Alan Ritchey, 359 NLRB 396
(2012). See also Total Security, 364 NLRB No. 106 (2016). The mo-
tion is granted.
in terms and conditions of employment before imposing such
changes. . . . When a majority of the unit employees have se-
lected the union as their representative in a Board-conducted
election, the obligation to bargain, at least with respect to
changes in terms and conditions of employment, commences .
. . [on] the date of the election.
San Miguel Hospital Corp., 357 NLRB 326, 326–327 (2011)
(citations omitted). In order to trigger a bargaining obligation,
unilateral changes must be material, substantial and significant.
Crittenton Hospital, 342 NLRB 686 (2004).
Dish created a new workplace disciplinary rule in June 2014,
when in response to the Union’s request, it agreed to “provide
. . . advance notice of any suspensions, demotions or dis-
charge.” (GC Exh. 15.) Thereafter, it notified, and bargained
with, the Union before enacting terminations on 2 occasions in
late-2014 (e.g., Hawkins and GoForth). (GC Exhs. 14, 16, 17;
CP Exhs. 125, 132.) Dish then abandoned this policy, when it
later fired Novak, without notice or pre-implementation bar-
gaining. Given that a disciplinary rule is a mandatory subject
of bargaining, and that the elimination of notice is a material
change, Dish violated Section 8(a)(5) by changing this rule
without notice or bargaining. United Cerebral Palsy of New
York City, 347 NLRB 603, 607 (2005) (disciplinary procedures
are mandatory bargaining topics).
B. The 8(a)(1) Allegations23
1. Wodell statement
Wodell did not make the statement alleged in the complaint.
Her commentary at the April meetings, therefore, did not vio-
late the Act.
2. Obere statement
Dish violated Section 8(a)(1), when Obere sent a text to Dan-
iels, which stated, inter alia, that, “the union is gone,” the FB
and NRH offices are closing, and Dish would prefer its techni-
cians to quit. See, e.g., Concrete Co., 336 NLRB 1311, 1316
(2001) (“union is gone”); Federated Logistics & Operations,
340 NLRB 255, 256 (2003) (unsubstantiated predictions of
closure due to union activities); Amalgamated Transit Union,
Local 689, 363 NLRB No. 43 (2015) (inviting resignations
because of union activities is an implied discharge threat); Mes-
ker Door, Inc., 357 NLRB 591 (2011) (same).24

23 These allegations are listed under complaint pars. 11 and 14. At
the hearing, the General Counsel amended the complaint to add par.
11(c), which alleged that Waeland Thomas threatened employees with
discipline, if they discussed union issues with trainees, and created the
impression the their union activities were under surveillance, when he
told employees that someone would be calling the trainees to determine
if they had been approached about the Union. (Tr. 36–37.)
24 Although Dish contends that Beckham’s disavowal erased the un-
lawfulness of the text, this contention is invalid. Effective repudiation
must be timely, unambiguous, specific, adequately publicized, free
from other illegal acts, and accompanied by some assurance against
repeat offenses. Passavant Memorial Area Hospital, 237 NLRB 138
(1978). Because Dish’s disavowal was accompanied by the other vio-
lations at issue herein, it was ineffective.
DISH NETWORK CORP. 11
3. Thomas statement
Thomas’ violated Section 8(a)(1), when he: told employees
not to discuss the Union with trainees under the threat of disci-
pline, without restricting this ban to working areas and time;
and threatened employees that trainees would be called to
gauge compliance. See, e.g., Restaurant Corp. of America v.
NLRB, 827 F.2d 799, 806 (D.C. Cir. 1987)(“employer may not
generally prohibit union solicitation . . . during nonworking
times or in nonworking areas”); Food Services of America, Inc.,
360 NLRB 1012, 1018 (2014)(same); Stevens Creek Chrysler,
353 NLRB 1294, 1295–1296 (2009)(unlawful impression of
surveillance, where reasonable employees would assume that
their union activities are being monitored.).
C. The 8(a(3) Allegations25
1. Constructive discharges
a. Legal precedent
Regarding constructive discharges, the Board has held as fol-
lows:
[I]t must be borne in mind that a constructive discharge is not
a discharge at all but a quit which the Board treats as a dis-
charge because of the circumstances which surround it . . . .
Normally, such situations arise in two factual contexts. In the
first [i.e., Category 1], with knowledge of its employees’ par-
ticipation in union or other protected concerted activities, an
employer harasses the individual to the point that his job con-
ditions become intolerable and, as a result, the employee
quits. In such circumstances, a nexus between the working
conditions and the individual's protected activities must be
shown and the imposed burdens must be intended to cause an
altering of the worker's working conditions. If both factors
are present, a constructive discharge will be found …. In the
second factual situation [i.e., Category 2], an employer con-
fronts an employee with the Hobson’s choice of either contin-
uing to work or foregoing the rights guaranteed to him under
Section 7 of the Act. In such a circumstance, his choice must
be clear and unequivocal and not left to inference.
Remodeling by Oltmanns, 263 NLRB 1152, 1162 (1982),
enfd. 719 F.2d 1420 (8th Cir. 1983) (emphasis added and cita-
tions omitted).
b. Analysis
Dish violated Section 8(a)(3), when it constructively dis-
charged the 17 resigning employees. These employees were
presented with the “Hobson’s choice” of continuing to work
versus forgoing their Section 7 rights.26 This is a Category 2
constructive discharge scenario, where Dish’s violation of their
Section 7 rights resulted in their wages being cut by 30% and
their health insurance costs being greatly increased. It is undis-
puted the resigning employees left because of these changes,
after effectively being left with the “Hobson’s choice” of con-

25 These allegations are listed under complaint pars. 12 and 15.
26 Dish violated their Sec. 7 rights by, inter alia, implementing its fi-
nal offer without an impasse, making unilateral changes, refusing to
bargain with the Union, and conditioning bargaining on a ratification
vote.
tinuing to work under greatly diminished conditions that flowed
from the violation of their Section 7 rights.27 Control Services,
303 NLRB 481, 485 (1991) (unlawful cuts in wages, hours and
health insurance benefits resulted in a category 2 constructive
discharge); White-Evans Service Co., 285 NLRB 81, 82–83
(1987) (same).
2. Unilateral Implementation of final offer
Given that Dish violated Section 8(a)(5), when it unilaterally
implemented its final offer absent a good-faith impasse, a find-
ing that this action also violated Section 8(a)(3) violation would
be cumulative and not impact the remedy. It is, thus, unneces-
sary to decide this redundant allegation. Tri-Tech Services, 340
NLRB 894, 895–896 (2003); Sygma Network Corp., 317 NLRB
411 (1995).
CONCLUSIONS OF LAW
1. Dish is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization, within the meaning of
Section 2(5) of the Act.
3. The Union is, and at all material times was, the exclusive
bargaining representative for the following appropriate unit of
employees at the FB hub:
INCLUDED: All regular full-time and part-time technicians
and warehouse employees employed at Dish’s facility in
Farmers Branch, Texas.
EXCLUDED: All other employees including quality assur-
ance employees, marketing and sales employees, commercial
technicians, managers, office clerical, guards and supervisors
as defined in the Act.
4. The Union is, and at all material times was, the exclusive
bargaining representative for the following appropriate unit of
employees at the NRH hub:
INCLUDED: All regular full-time and part-time technicians
and warehouse employees employed at Dish’s facility in
North Richland Hills, Texas.
EXCLUDED: All other employees including quality assur-
ance employees, marketing and sales employees, commercial
technicians, managers, office clerical, guards and supervisors
as defined in the Act.
5. Dish violated Section 8(a)(1), when:
(a) Obere told employees that “the union is gone,” that their
offices would close because of their Union activities, and that
Dish would prefer technicians employed at its unionized facili-
ties to quit.
(b). Thomas threatened employees that they would be disci-
plined, if they discussed the Union with new hires.
(c) Thomas created the impression of surveillance, when he

27 Dish’s contentions in its brief that the employees were not con-
structively discharged because the General Counsel did not show that
its unilateral changes “were imposed because of the employee's union
activities” is without merit, inasmuch as Dish errantly characterizes this
matter as a Category 1 constructive discharge, when it still remains, a
Category 2 constructive discharge case, which has no such intent re-
quirement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
told employees that someone would call trainees to confirm that
they did not discuss the Union with them.
6. Dish violated Section 8(a)(3), when it constructively dis-
charged the following 17 employees: Marcus Tillman; David
Dingle; Justin Ripley; Kenneth Daniel; Bryce Benge; Salvador
Bernardino; Preston Dutton; Robert Thompson; John Carson;
Scott Dehart; Robert MacDonald; Aaron Mason; Aaron Ku-
besch; Severo Hernandez; John Burns; Christopher Little; and
Michael Cater.
7. Dish violated Section 8(a)(5), when it:
(a) Failed to meet and bargain with the Union at reasonable
times for the purposes of collective bargaining since January
13, 2016, after prematurely declaring an impasse, regarding the
units described above.
(b) Refused to bargain with the Union by conditioning bar-
gaining upon a ratification vote.
(c) Implemented its final offer on April 23, 2016, and,
thereafter, unilaterally changed terms and conditions of em-
ployees in the above-described units without having reached
agreement with the Union and in the absence of a valid bargain-
ing impasse.
(d) Unilaterally changed the wages, health insurance cover-
age, leave benefits, and other terms and conditions of employ-
ment since April 23, 2016, in the above-described units.
(f) Unilaterally changed its disciplinary policy and dis-
charged unit employee Dakota Novak, by failing to afford the
Union preimplementation notice of his contemplated discipline,
and an opportunity to bargain.
(g The unfair labor practices set forth above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Dish committed unfair labor practices, it
is ordered to cease and desist and to take certain affirmative
action designed to effectuate the Act. Having found that Dish
violated Section 8(a)(3) by constructively discharging the 17
employees described above, it is ordered to offer them full rein-
statement to their former jobs or, if such jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed. It
is further ordered to make them whole for any loss of earnings
and other benefits suffered as a result of their discrimination.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). Moreover, in accordance with King Soopers,
Inc., 364 NLRB No. 93 (2016), it shall compensate them for
their search-for-work and interim employment expenses, if any,
regardless of whether those expenses exceed interim earnings.
Search-for-work and interim employment expenses shall be
calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra. It is
further ordered to compensate them for any adverse tax conse-
quences associated with receiving a lump-sum backpay award
and to file with the Regional Director for Region 16 a report
allocating the backpay award to the appropriate calendar year.
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). It is
also ordered to remove from its files any references to their
unlawful discharges, and within 3 days thereafter to notify them
in writing that this has been done and that their unlawful con-
structive discharges will not be used against them in any way.
Having found that Dish violated Section 8(a)(5) by prema-
turely declaring an impasse, refusing to meet with the Union for
collective-bargaining purposes, and conditioning meeting with
the Union on a nonmandatory subject of bargaining, it is or-
dered to, upon request by the Union, bargain collectively and in
good faith concerning terms and conditions of employment of
unit employees, and, if an understanding is reached, to embody
it in a signed agreement. Upon resumption of bargaining, it is
further ordered to reinstate all tentative agreements reached
during contract negotiations. See Health Care Services Group,
331 NLRB 333 (2000).
Furthermore, having found that Dish violated Section 8(a)(5)
by unilaterally changing terms and conditions of employment
for unit employees, which included eliminating QPC, cutting
wages, combining sick and vacation leave banks, and cutting
health insurance deductibles and caps, it shall, on request of the
Union, retroactively restore any unilaterally modified terms and
conditions of employment, and rescind the unilateral changes it
has made, until such time as Dish and the Union reach an
agreement for a new collective-bargaining agreement, or a law-
ful impasse based on good-faith negotiations.28 It shall also be
required to make whole the unit employees for any loss of wag-
es or other benefits suffered as a result of the unilateral changes
in the manner set forth in Ogle Protection Service, 183 NLRB
682 (1970), enfd.444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons, supra, compounded daily as pre-
scribed in Kentucky River, supra. With respect to its unilateral
termination of the unit employees’ preexisting health care bene-
fits, it shall restore, upon request of the Union, the preexist-
ing health care benefits and reimburse the unit employees for
any expenses ensuing from its failure to continue the preexist-
ing healthcare coverage, as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891, 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981), such amounts to be computed in the manner set
forth in Ogle Protection, supra, with interest at the rate pre-
scribed in New Horizons, supra, compounded daily as pre-
scribed in Kentucky River, supra.
Additionally, having found that Dish violated Section 8(a)(5)
by unilaterally changing its disciplinary rule and consequently
firing Novak, it shall offer him full reinstatement to his former
job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or
privileges previously enjoyed, discharging if necessary any
employees hired in his place. Novak shall also be made whole
for any loss of earnings he may have suffered due to his unlaw-
ful discharges. Backpay shall be computed in accordance with

28 Pressroom Cleaners, 361 NLRB 643 (2014), motion for reconsid-
eration denied 361 NLRB No. 133 (2014). Nothing in this recom-
mended order, however, shall be construed as requiring or authorizing
Dish to rescind any improvements in the unit employees’ terms and
conditions of employment unless requested to do so by the Union.
Adams & Associates, Inc., 363 NLRB No. 193 (2016).
DISH NETWORK CORP. 13
F. W. Woolworth, supra, with interest at the rate prescribed in
New Horizons, supra, compounded daily as prescribed in Ken-
tucky River, supra. Dish shall also be required to expunge from
its files any reference to Novak’s unlawful discharge and to
notify him in writing that this has been done. It is further or-
dered to compensate him for any adverse tax consequences
associated with receiving a lump-sum backpay award and to
file with the Regional Director for Region 16 a report allocating
the backpay award to the appropriate calendar year. Dish is,
however, entitled to show, at a compliance proceeding, that it
would have discharged Novak under the preexisting terms and
conditions, avoiding as to him any reinstatement, expunction,
and backpay obligation. See Adams & Associates, Inc., 363
NLRB No. 193, slip op. at 11, fn. 17 (2016).
Finally, in addition to the traditional remedies discussed
above, Beckham will read the notice marked “Appendix” to FB
and NRH unit employees, during work time, at the FB and
NRH hubs in the presence of a Board agent. A notice reading
will counteract the coercive impact of the instant violations,
which were substantial. See McAllister Towing & Transporta-
tion Co., 341 NLRB 394, 400 (2004). Dish shall also distribute
remedial notices electronically via text message, email, intra-
net, internet, or other appropriate electronic means to its em-
ployees, in addition to the traditional physical posting of paper
notices, if it customarily communicates with workers in this
manner. J Picini Flooring, 356 NLRB 11 (2010).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended29
ORDER
Dish Network Corporation, Farmers Branch and North Rich-
land Hills, Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Telling employees that “the union is gone.”
(b) Threatening employees that the Farmers Branch and
North Richland Hills offices would close because they engaged
in union or any other protected concerted activities.
(c) Implicitly threatening employees with discharge by in-
viting their resignations because they engaged in union or any
other protected concerted activities.
(d) Threatening employees that they will be disciplined, if
they discuss the Union with newly-hired employees.
(e) Creating the impression that employees’ union or other
protected concerted activities were being monitored.
(f) Constructively discharging or otherwise discriminating
against its employees for engaging in union or any other pro-
tected concerted activities.
(g) Failing and refusing to meet and bargain at reasonable
times with the Union for collective bargaining as the exclusive
collective bargaining representative in the following appropri-
ate units:

29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
Farmers Branch bargaining unit
INCLUDED: All regular full-time and part-time technicians
and warehouse employees employed at Dish’s facility in
Farmers Branch, Texas.
EXCLUDED: All other employees including quality assur-
ance employees, marketing and sales employees, commercial
technicians, managers, office clerical, guards and supervisors
as defined in the Act.
North Richland Hills bargaining unit
INCLUDED: All regular full-time and part-time technicians
and warehouse employees employed at Dish’s facility in
North Richland Hills, Texas.
EXCLUDED: All other employees including quality assur-
ance employees, marketing and sales employees, commercial
technicians, managers, office clerical, guards and supervisors
as defined in the Act.
(h) Refusing to bargain with the Union by conditioning fu-
ture bargaining upon the holding a ratification vote.
(i) Implementing its final offer and unilaterally changing
terms and conditions of employees in the above-described units
without reaching agreement with the Union and in the absence
of a valid bargaining impasse.
(j) Unilaterally changing the wages, health insurance cover-
age, leave benefits, and other terms and conditions of employ-
ment for the above described units.
(k) Unilaterally changing its disciplinary policy and dis-
charging unit employee Dakota Novak, by failing to afford the
Union preimplementation notice of his contemplated discipline
and an opportunity to bargain.
(l) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer the fol-
lowing 17 constructively discharged employees full reinstate-
ment to their former jobs or, if such jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed:
Marcus Tillman; David Dingle; Justin Ripley; Kenneth Daniel;
Bryce Benge; Salvador Bernardino; Preston Dutton; Robert
Thompson; John Carson; Scott Dehart; Robert MacDonald;
Aaron Mason; Aaron Kubesch; Severo Hernandez; John Burns;
Christopher Little; and Michael Cater.
(b) Make the 17 constructively discharged employees whole
for any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set forth in
the remedy section of the decision, compensate them for the
adverse tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar year.
(c) Within 14 days from the date of this Order, remove from
its files any reference to these unlawful discharges of the 17
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
constructively discharged employees, and within 3 days there-
after, notify them in writing that this has been done and that
their constructive discharges will not be used against them in
any way.
(d) On request by the Union, bargain with it as the exclusive
bargaining representative of our unit employees on terms and
conditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement.
(e) On request by the Union, rescind the changes in the
terms and conditions of employment for the unit employees that
were unilaterally implemented on and after April 23, 2016, and
restore the status quo ante until such time as the Respondent
and the Union reach an agreement for a new collective-
bargaining agreement or a lawful impasse based on good-faith
negotiations.
(f) Make the unit employees whole, with interest, for any
losses sustained as a result of the unilateral changes in terms
and conditions of employment in the manner set forth in the
remedy section of this decision.
(g) Offer Novak full reinstatement to his former job or, if his
job no longer exist, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges he
previously enjoyed, unless it is shown that the Respondent
would have discharged him under the preexisting terms and
conditions of employment.
(h) Make Novak whole for any loss of earnings and other
benefits suffered as a result of his discharge, in the manner set
forth in the remedy section of this decision, compensate him for
the adverse tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar year, unless it is shown that
the Respondent would have discharged him under the preexist-
ing terms and conditions of employment.
(i) Remove from its files any reference to the discharge of
Novak, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharge will not
be used against him in any way, unless it is shown that the Re-
spondent would have discharged him under the preexisting
terms and conditions of employment.
(j) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(k) Within 14 days after service by Region 16, post at its
Farmers Branch and North Richland Hills, Texas facilities cop-
ies of the attached notice marked “Appendix.”30 Copies of the

30 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
notice, on forms provided by the Regional Director, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where notices
to employees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by text message, email, posting on an intranet or
an internet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by such
means. Reasonable steps shall be taken to ensure that the no-
tices are not altered, defaced, or covered by any other material.
If Dish has gone out of business or closed the facilities involved
in these proceedings, it shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by it at any time since January 13, 2016.
Within 14 days after service by the Region, hold a meeting
or meetings during working hours at the FB and NRH hubs,
which will be scheduled to ensure the widest possible attend-
ance of unit employees, at which time the attached notice
marked “Appendix” is to be read to its employees by Beckham
in the presence of a Board agent.
(m) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that it
has taken to comply.
Dated Washington, D.C. January 23, 2017
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT tell you that “the union is gone,” threaten that
the Farmers Branch and North Richland Hills offices will close
because you engaged in union or any other protected concerted
activities, or implicitly threaten your discharge by inviting you
to resign because you engaged in union or any other protected
concerted activities.
WE WILL NOT threaten that you will be disciplined, if you
discuss the Union with newly-hired employees, or create the
impression that your union activities or any other protected
concerted activities are being monitored.
WE WILL NOT constructively discharge or otherwise discrim-
inate against you for engaging in union or any other protected
concerted activities.
WE WILL NOT fail and refuse to meet and bargain at reasona-
DISH NETWORK CORP. 15
ble times with the Union as the exclusive collective bargaining
representative of its employees in these appropriate units:
Farmers Branch bargaining unit
INCLUDED: All regular full-time and part-time technicians
and warehouse employees employed at its facility located in
Farmers Branch, Texas.
EXCLUDED: All other employees including quality assur-
ance employees, marketing and sales employees, commercial
technicians, managers, office clerical, guards and supervisors as
defined in the Act.
North Richland Hills bargaining unit
INCLUDED: All regular full-time and part-time technicians
and warehouse employees employed at its facility located in
North Richland Hills, Texas.
EXCLUDED: All other employees including quality assur-
ance employees, marketing and sales employees, commercial
technicians, managers, office clerical, guards and supervisors
as defined in the Act.
WE WILL NOT refuse to bargain with the Union by condition-
ing future bargaining upon it holding a ratification vote.
WE WILL NOT implement our final offer and unilaterally
change the terms and conditions of employment of our employ-
ees in the above-described units without reaching agreement
with the Union and in the absence of a valid bargaining im-
passe.
WE WILL NOT unilaterally change wages, eliminate QPC, cut
health insurance coverage, reduce leave benefits, or otherwise
change terms and conditions of employment in the above de-
scribed units.
WE WILL NOT unilaterally change our disciplinary policy and
discharge unit employee Dakota Novak, by failing to afford the
Union pre-implementation notice of his contemplated discipline
and an opportunity to bargain.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights set forth
above.
WE WILL within 14 days from the date of the Board’s Order,
offer the following 17 constructively discharged employees full
reinstatement to their former jobs or, if such jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed: Marcus Tillman; David Dingle; Justin Ripley; Kenneth
Daniel; Bryce Benge; Salvador Bernardino; Preston Dutton;
Robert Thompson; John Carson; Scott Dehart; Robert Mac-
Donald; Aaron Mason; Aaron Kubesch; Severo Hernandez;
John Burns; Christopher Little; and Michael Cater.
WE WILL make the 17 constructively discharged employees
described above whole for any loss of earnings and other bene-
fits resulting from their discharges, less any net interim earn-
ings, plus interest, plus reasonable search-for-work and interim
employment expenses.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful construc-
tive discharges of the 17 employees described above, and WE
WILL, within 3 days thereafter, notify them in writing that this
has been done and that their constructive discharges will not be
used against them in any way.
WE WILL on request by the Union, bargain with it as the ex-
clusive bargaining representative of our unit employees on
terms and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement.
WE WILL, on request by the Union, rescind the changes in the
terms and conditions of employment of our unit employees that
we unilaterally implemented on and after April 23, 2016, and
retroactively restore the wages and other terms and conditions
of employment that existed before our unlawful unilateral
changes were implemented, until we have reached an agree-
ment with the Union for a new collective-bargaining agreement
or a lawful impasse based on good-faith negotiations.
WE WILL make unit employees whole for any losses sus-
tained as a result of the unilateral changes in terms and condi-
tions of employment, plus interest compounded daily.
WE WILL offer Dakota Novak, who was discharged pursuant
to our unilaterally implemented disciplinary policies and proce-
dures, full reinstatement to his former job or, if that job no
longer exist, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed, discharging if necessary any employees hired in
his place, subject to our demonstrating in a compliance hearing
that we would have discharged Novak even under the terms and
conditions of employment that existed immediately prior to our
unilateral change.
WE WILL, subject to the condition set forth above, make No-
vak whole for any loss of earnings and other benefits suffered
as a result of his discharge, less any net interim earnings, plus
interest compounded daily.
WE WILL, subject to the condition set forth above, remove
from our files any reference to the unlawful discharge of No-
vak, and WE WILL, within 3 days thereafter, notify him in writ-
ing that this has been done and that the discharge will not be
used against him in any way.
WE WILL compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay awards,
and WE WILL file with the Regional Director for Region 16,
within 21 days of the date the amount of backpay is fixed, ei-
ther by agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar years for each employ-
ee.
DISH NETWORK CORPORATION
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/16–CA–173719 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.