Dish Network, LLC

National Labor Relations Board - Board Decisions

Mar 3, 2016

363 NLRB No. 141 (N.L.R.B. 2016)

363 NLRB No. 141
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, LLC and David Rabb. Case 27–CA–
131084
March 3, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On March 26, 2015, Administrative Law Judge Robert
A. Ringler issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief, and the Respondent
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 the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and

1 The Respondent has 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 resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent’s maintenance
of its “Solicitation in the Workplace” policy violated Sec. 8(a)(1) of the
Act, we reject the Respondent’s attempt to characterize its call center as
a retail sales floor. See Marshall Field & Co., 98 NLRB 88, 92 (1952)
(employer may prohibit solicitation in the selling area of a retail store,
but violated the Act by prohibiting all solicitation in all nonselling
areas), enfd. as modified 200 F.2d 375 (7th Cir. 1952); J. C. Penney
Co., 266 NLRB 1223, 1224 (1983) (retail store’s ban on solicitation
unlawfully overbroad where not limited to the selling floor). The Re-
spondent’s call center is not a retail establishment, nor is there a selling
floor where customers are physically present.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by issuing a final warning to employee David Rabb for engag-
ing in protected concerted activity, we reject the Respondent’s argu-
ment that Rabb was disciplined for distribution rather than solicitation.
The Respondent’s written discipline form states that Rabb was wit-
nessed soliciting his coworkers in violation of the provision in the
Respondent’s “Solicitation in the Workplace” policy that prohibits
employees from engaging in solicitation in work areas during nonwork
times unless authorized in advance by a vice president or higher. Alt-
hough the policy also contains a provision that prohibits distribution of
written materials, the written warning does not cite this provision.
In affirming the judge’s finding, applying Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), that Rabb was discharged for protected concerted activity
in violation of Sec. 8(a)(1), we do not rely on the judge’s citation to
Anco Insulations, Inc., 247 NLRB 612 (1980), for the definition of
concerted activity. Instead, we rely on Meyers Industries, 268 NLRB
493, 497 (1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755
F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supple-
mented Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II),

affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988).
We agree with the judge, for the reasons he states, that the General
Counsel sustained his initial burden of proving that Rabb’s protected
activity was a motivating factor in his discharge. In addition to the
evidence of animus cited by the judge, we find that the Respondent’s
unlawful discipline of Rabb provides further evidence of its animus
toward its employees’ exercise of Sec. 7 rights. See, e.g., Austal USA,
LLC, 356 NLRB 363, 363–364 (2010). Contrary to the suggestion of
our concurring colleague, proving that an employee’s protected activity
was a motivating factor in the employer’s adverse employment decision
does not require the General Counsel to make some additional showing
of particularized animus towards the employee’s own protected activity
or to further demonstrate some additional, undefined “nexus” between
the employee’s protected activity and the adverse action. See, e.g.,
Libertyville Toyota, 360 NLRB No. 141, slip op. at 4 fn. 10 (2014),
enfd. sub nom. AutoNation, Inc. v. NLRB, 801 F.3d 767 (7th Cir. 2015);
Encino Hospital Medical Center, 360 NLRB No. 52, slip op. at 2 fn. 6
(2014); TM Group, Inc., 357 NLRB 1186, 1186 fn. 2 (2011); Mesker
Door, Inc., 357 NLRB 591, 592 fn. 5 (2011). Although our colleague
would find a nexus here, we emphasize that such a showing is not
required.
We also agree with the judge’s finding that the Respondent failed to
show it would have terminated Rabb absent his protected activity. In
this regard, we do not agree with our concurring colleague’s suggestion
that the judge improperly considered evidence related to the Respond-
ent’s intent in finding the Respondent failed to show it would have
discharged Rabb even in the absence of his protected conduct. Under
Wright Line, if the General Counsel sustains his initial burden, the
burden shifts to the employer to persuade by a preponderance of the
evidence, not merely that it could have taken the same action for legit-
imate reasons, but that it actually would have done so in the absence of
the protected conduct. See Wright Line, 251 NLRB at 1089; see also
NLRB v. Transportation Management Corp., 462 U.S. 393, 399 (1983).
Here, the judge considered the evidence offered by the Respondent, but
properly found that it did not overcome the inference of discriminatory
intent. We agree with this finding and note that the judge’s analysis is
consistent with longstanding precedent, beginning with Wright Line
itself. See 251 NLRB at 1091 (finding respondent’s defense under-
mined by evidence “suggest[ing] a predetermined plan to discover a
reason to discharge [employee] and thus rid the facility of a union
activist”); see also NLRB v. Transportation Management Corp., 462
U.S. at 404–405 (evidence showing respondent “was obviously upset
with [employee] for engaging in protected activity” supported Board’s
finding that respondent failed to show employee would not have been
fired absent respondent’s antiunion animus); Hunter Douglas, Inc., 277
NLRB 1179, 1179, 1180 (1985) (reversing judge’s finding that re-
spondent demonstrated it would have laid off second-shift employees
even in the absence of protected conduct because judge’s analysis
“fail[ed] to consider record evidence that demonstrates that the second
shift was selected for layoff in order to defeat the union campaign,” and
plant manager’s “undisputed desire to rid the second shift of its union
sympathizers goes a long way in explaining how and why the second
shift was eliminated in the manner in which it was”), enfd. 804 F.2d
808 (3d Cir. 1986).
Finally, the Respondent argues that the judge erred by treating its in-
side sales leads, also termed “coaches,” as supervisors within the mean-
ing of Sec. 2(11) of the Act. In its answer, the Respondent admitted
complaint par. 3(a), which alleged that Barry Appelhans held the posi-
tion of “Inside Sales Lead” and was a supervisor within the meaning of
Sec. 2(11) of the Act and an agent of the Respondent within the mean-
ing of Sec. 2(13). The Respondent never sought to amend its answer or
contest the supervisory status of Barry Appelhans. Accordingly, we
find the judge properly found that Coach Barry Appelhans was a super-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The Respondent, Dish Network, LLC, Englewood,
Colorado, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining a “Solicitation in the Workplace” poli-
cy in its employee handbook that prohibits employees
from engaging in solicitation in work areas during
nonwork time and requires management’s approval prior
to engaging in such solicitation.
(b) Discharging, disciplining, or otherwise discriminat-
ing against employees because they engage in protected
concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the provision of the “Solicitation in the
Workplace” policy in its employee handbook that pro-
hibits employees from engaging in solicitation in work
areas during nonwork time except as authorized in ad-
vance by a vice president or higher.
(b) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the un-
lawful provision has been rescinded, or (2) provide the
language of a lawful provision; or publish and distribute
a revised employee handbook that (1) does not contain
the unlawful provision, or (2) provides the language of a
lawful provision.
(c) Within 14 days from the date of this Order, offer
David Rabb full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(d) Make David Rabb whole for any loss of earnings
and other benefits suffered as a result of the discrimina-

visor. See Harco Trucking, LLC, 344 NLRB 478, 479 (2005). We find
it unnecessary to decide whether the Respondent’s other unspecified
coaches are also statutory supervisors. Because the record establishes
both that employees looked to coaches to communicate the Respond-
ent’s rules and expectations and that coaches indeed conveyed this
information to inside sales associates on a routine and regular basis, we
find that the Respondent’s coaches were its agents for purposes of
transmitting management’s policies applicable to inside sales associ-
ates. See generally Pan-Oston Co., 336 NLRB 305, 305–306 (2001).
2 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language and to clarify that the notice-
posting remedy applies only to the Respondent’s facilities in the United
States where the employee handbook containing the unlawful solicita-
tion policy has been or is in effect. We will substitute new notices to
conform to the Order as modified.
tion against him, in the manner set forth in the remedy
section of the judge’s decision.
(e) Compensate David Rabb for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar
quarters.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful final warning
and unlawful discharge of David Rabb, and within 3 days
thereafter, notify David Rabb in writing that this has
been done and that the final warning and discharge will
not be used against him in any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post
copies of the attached notice marked “Appendix A” at its
Littleton, Colorado facility, and post copies of the at-
tached notice marked “Appendix B” at all of its other
facilities in the United States where the unlawful “Solici-
tation in the Workplace” policy is in effect or has been in
effect at any time since December 18, 2013.3 Copies of
the notices, on forms provided by the Regional Director
for Region 27, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
marked “Appendix A” to all current employees and for-
mer employees employed by the Respondent at its Little-

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices 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.”
DISH NETWORK, LLC 3
ton, Colorado facility at any time since December 18,
2013. If the Respondent has gone out of business or
closed any of its other facilities where the unlawful “So-
licitation in the Workplace” policy was in effect on or
after December 18, 2013, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice marked
“Appendix B” to all former employees at that facility or
those facilities employed since December 18, 2013.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 27 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 3, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring.
I agree with the judge and my colleagues that the Re-
spondent violated the Act by maintaining a solicitation
policy that prohibited employees from engaging in solici-
tation during nonwork times unless authorized in ad-
vance by management. I also agree that the Respondent
violated the Act by disciplining employee David Rabb
for engaging in protected concerted activity—i.e., solicit-
ing coworkers to join his lawsuit challenging certain pol-
icies of the Respondent that affected employees’ pay1—
and by discharging Rabb for engaging in protected con-
certed activity. However, with respect to Rabb’s dis-
charge, I believe that the judge misapplied the Wright
Line2 burden-shifting framework and failed to properly
analyze the Respondent’s defense burden under Wright
Line. My colleagues uphold the judge’s finding that the
General Counsel satisfied his initial burden (Wright Line
“stage one”), which pertains to unlawful motivation.
However, the judge also relied on evidence of unlawful
motivation to find that the Respondent failed to satisfy its

1 In finding that Rabb was unlawfully disciplined for engaging in
protected concerted activity, however, I do not rely on the judge’s
citation to Continental Group, 357 NLRB 409 (2011).
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
defense burden (Wright Line “stage two”). By doing so,
the judge basically double-counted Wright Line stage one
and eliminated Wright Line stage two. Because the
Board and the courts must rely on Wright Line so fre-
quently in cases that allege violations of Section 8(a)(3)
and (1), it is important to apply that decision properly, as
explained more fully below.
Background
The Respondent, Dish Network, LLC (the Respondent
or Dish), provides satellite television and other media
services nationwide. Charging Party David Rabb worked
as an inside sales associate (ISA) at the Respondent’s
Riverfront call center in Littleton, Colorado, from 2012
until he was fired on March 7, 2014. The Riverfront call
center’s general manager was Emily Evans. David Gass,
an inside sales manager, reported to Evans. Gass over-
saw multiple inside sales leads, or “coaches.” Coaches
supervised teams of up to 15 ISAs.
ISAs sell Dish’s services over the phone. They earn a
base salary and commissions. ISAs receive a paid break
period each shift, which they can take in increments of
their choosing. ISAs use their computer to connect to
calls and to switch into and out of various auxiliary
modes corresponding to the activity they are engaged in
at the time.3 The system tracks the time ISAs spend in
each auxiliary mode and generates a report for the Re-
spondent. During a call, ISAs have two methods for
placing a caller on hold. They can either switch the call
into HOLD AUX, or they can place the caller on mute
(also referred to as “silent hold”).4 When an ISA places
a caller on silent hold, a red light is illuminated above the
ISA’s workstation. The red light is conspicuous and eas-
ily visible around the call center.
ISAs are expected to meet certain standards set forth in
the Respondent’s Integrity Policy. Failure to do so re-
sults in a “Tier” violation, for which the Respondent im-
poses lost commission and discipline. Rabb had several
coaches during his tenure at the Riverfront call center,
including Barry Appelhans, who was his coach when he
was fired. Rabb lost commission for Tier violations sev-
eral times, and he complained to his coworkers and man-
agement about these deductions. In December 2013, he
filed a complaint with the Colorado Department of Labor
(DOL) regarding the Respondent’s commission struc-
ture.5 Rabb discussed this complaint with coworkers.
However, the record does not indicate that any of his

3 I.e., BREAK AUX, COACHING AUX, TRAINING AUX, AND
HOLD AUX.
4 Time spent on HOLD AUX is recorded and appears on monthly
reports to management. Time spent on silent hold is not recorded.
5 The Colorado DOL denied Rabb’s complaint on January 6, 2015,
on jurisdictional grounds.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
coworkers joined or assisted Rabb in filing the com-
plaint. On January 30, 2014, Rabb and a coworker met
with a private attorney regarding the Respondent’s pay
practices and a possible lawsuit. Thereafter, Rabb solic-
ited about 15 coworkers to join this suit.
On February 19, 2014, Rabb was issued a written final
warning for soliciting coworkers in violation of the Re-
spondent’s solicitation policy. Evans sought to terminate
Rabb; however, Kristin D’Angelo, the Respondent’s hu-
man resources manager, decided to place Rabb on a final
warning. After Rabb received the final warning, he
asked two supervisors for a former ISA’s phone number.
Evans again requested termination on the ground that
Rabb breached the solicitation policy, but D’Angelo de-
cided not to take any further action.
On March 4, 2014, Evans, Gass, and Appelhans were
meeting in a conference room. Rabb’s workstation was
visible from the conference room, and Appelhans ob-
served that Rabb left his desk and that his red silent-hold
light was illuminated. Evans sent Gass to investigate.
Gass was waiting at Rabb’s workstation when Rabb re-
turned from the restroom approximately 2 to 4 minutes
later. Gass asked why Rabb had a customer on silent
hold, and Rabb replied that he went to use the restroom.
On March 7, Appelhans issued Rabb a written termina-
tion notification that referred to Rabb’s use of silent hold
on March 4.
Applying Wright Line, the judge found Rabb’s em-
ployment termination unlawful. The judge found the
General Counsel satisfied his initial Wright Line burden
with evidence showing Rabb engaged in protected activi-
ty, the Respondent was aware of such activity, and the
Respondent harbored animus toward that activity. The
judge found animus based on Evans’ twice seeking to
fire Rabb for breaching the Respondent’s solicitation
policy, as well as the close timing between Rabb’s “esca-
lated protected activity” (his Colorado DOL complaint
and soliciting coworkers to join his lawsuit) and his fir-
ing.
The judge further found the Respondent failed to es-
tablish its affirmative defense under Wright Line. The
judge discussed six factors that, according to the judge,
independently and collectively showed the Respondent
would not have fired Rabb absent his protected activity.

(1) The judge found the Respondent’s seizing on
Rabb’s longstanding practice of placing customers
on silent hold to use the restroom only after Rabb
engaged in protected activity undercut “any claim of
evenhanded intent.”
(2)The judge found that the lack of analogous
disciplinary examples “suggest[ed] invidious intent.”
(3) The judge stated the Respondent’s decision to
fire Rabb for using silent hold instead of BREAK
AUX was “problematic.”
(4) The judge found that the manner in which
Evans and Gass detected Rabb’s use of silent hold
on March 4 suggested “invidious intent.”
(5) The judge noted that Evans, who appeared
“keenly motivated to remove Rabb,” fired Rabb
without asking his coaches whether they had accept-
ed his conduct; according to the judge, the only
plausible explanation for Evans’ “malicious intent”
was that Evans was retaliating against Rabb’s pro-
tected activity.
(6) The judge concluded that the close timing be-
tween Rabb’s firing and the escalation of his pro-
tected activity “further support[ed] discrimination.”
Analysis
Because this is a mixed-motive case, it is appropriately
evaluated under Wright Line, supra. To establish a viola-
tion of Section 8(a)(1) of the Act under Wright Line, the
General Counsel must make an initial showing “suffi-
cient to support the inference that protected conduct was
a ‘motivating factor’ in the employer’s decision.” 6 This
initial burden is sometimes referred to as Wright Line
stage one. If the General Counsel makes that showing,
the burden shifts to the employer “to demonstrate that the
same action would have taken place even in the absence
of the protected conduct.”7 This defense burden is some-
times referred to as Wright Line stage two. Significantly,
the Wright Line burden-shifting approach is not appro-
priate in every case alleging unlawful discrimination.
Rather, the Wright Line analysis applies only in “mixed-
motive” cases (also sometimes called “dual-motive” cas-
es), where it appears that unlawful considerations were a
motivating factor in the discipline or discharge decision,
but where the record supports the potential existence of
one or more legitimate justifications for the decision.8
As an initial matter, I agree with my colleagues that
the judge correctly found the General Counsel sustained
his initial burden of establishing that Rabb’s protected
concerted activity was a motivating factor in his dis-
charge.9 The record reveals evidence of the Respond-

6 Wright Line, 251 NLRB at 1089.
7 Id.
8 See id. at 1084 (“In [mixed-motive] cases, the discipline decision
involves two factors. The first is a legitimate business reason. The
second reason, however, is not a legitimate business reason but is in-
stead the employer’s reaction to its employees’ engaging in union or
other protected activities. . . . This existence of both a ‘good’ and a
‘bad’ reason for the employer’s action requires further inquiry into the
role played by each motive.”).
9 Wright Line clearly requires the General Counsel to establish that
unlawful considerations were a “motivating factor” in the disputed
DISH NETWORK, LLC 5
ent’s animus specifically toward Rabb’s protected activi-
ty, including (i) disciplining Rabb in violation of Section
8(a)(1) for engaging in protected activity, (ii) Evans’
twice seeking to fire Rabb for engaging in protected ac-
tivity, and (iii) the close timing between Rabb’s protect-
ed activity and his firing.10 This evidence establishes the
requisite motivational link between Rabb’s protected
activity and the Respondent’s decision to discharge him.

decision, and generalized animus towards union activity is insufficient
to satisfy this burden. See Arc Bridges, Inc., 362 NLRB No. 56, slip
op. at 10 (2015) (Member Miscimarra, dissenting); Libertyville Toyota,
360 NLRB No. 141, slip op. at 9 fn. 5 (2014) (Member Miscimarra,
dissenting in part), enfd. sub nom. AutoNation, Inc. v. NLRB, 801 F.3d
767 (7th Cir. 2015); Starbucks Coffee Co., 360 NLRB No. 134, slip op.
at 6 fn. 1 (2014) (Member Miscimarra, concurring). However, a num-
ber of Board cases find that the General Counsel sustains his initial
Wright Line burden by showing (1) union activity by employees, (2)
employer knowledge of that activity, and (3) employer antiunion ani-
mus. E.g., Mesker Door, Inc., 357 NLRB 591, 592 (2011). In my
view, this formulation of the Wright Line stage-one burden is incorrect
because the General Counsel “must establish a motivational link, or
nexus, between the employee’s protected activity and the adverse em-
ployment action.” American Gardens Management Co., 338 NLRB
644, 645 (2002); see also AutoNation, Inc. v. NLRB, 801 F.3d 767, 775
(7th Cir. 2015) (holding that “there must be a showing of a causal con-
nection between the employer’s anti-union animus and the specific
adverse employment action on the part of the decisionmaker”); Nichols
Aluminum, LLC v. NLRB, 797 F.3d 548, 554–555 (8th Cir. 2015)
(denying enforcement of 361 NLRB No. 22 (2014) (“Simple animus
toward the union is not enough. While hostility to a union is a proper
and highly significant factor for the Board to consider when assessing
whether the employer’s motive was discriminatory, general hostility
toward the union does not itself supply the element of unlawful motive”
(alterations and internal quotations omitted).). The Board’s task in all
cases that turn on motivation “is to determine whether a causal relation-
ship existed between employees engaging in union or other protected
activities and actions on the part of the employer which detrimentally
affect” their employment. Wright Line, 251 NLRB at 1089. In the
instant case, however, I agree that the record supports a finding that
unlawful considerations were a motivating factor in the decision to
discharge Rabb, thereby satisfying the General Counsel’s burden under
Wright Line stage one.
10 As I explained in my partial dissent in Murphy Oil USA, Inc., 361
NLRB No. 72, slip op. at 23–25 (2014), an employee may engage in
“concerted” activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than the NLRA. Here, I would find
that the Act’s protection was triggered because Sec. 7’s statutory re-
quirements were met. First, two or more employees engaged in con-
certed activities: Rabb and a coworker met with an attorney together,
and Rabb sought to induce other coworkers to join his lawsuit. Second,
the concerted activities were for the purpose of mutual aid or protection
because the lawsuit Rabb solicited his coworkers to join challenged the
Respondent’s pay practices. See id.; see also Beyoglu, 362 NLRB No.
152, slip op. at 4–5 (2015) (Member Miscimarra, dissenting); Fresh &
Easy Neighborhood Market, 361 NLRB No. 12, slip op. at 13–17
(2014) (Member Miscimarra, concurring in part and dissenting in part).
I would not rely on the judge’s finding of “escalated” protected con-
certed activity, nor do I find it necessary to determine whether Rabb
was engaged in protected concerted activity when he filed the Colorado
DOL complaint.
Because the General Counsel met his initial burden
under Wright Line, the burden shifted to the Respondent
to prove it would have fired Rabb even absent his pro-
tected conduct. In the instant case, I believe the judge
and my colleagues disregard this Wright Line stage-two
burden. As noted above, the judge’s Wright Line stage-
two analysis primarily relied on evidence related to the
Respondent’s unlawful intent. There is a fundamental
analytical problem with this approach. Wright Line ap-
plies only in “mixed-motive” cases, where the employer
may have been motivated by lawful and unlawful con-
siderations. If one relies on evidence of unlawful intent
to find that the employer has failed to satisfy its burden
under Wright Line stage two, this defeats the entire pur-
pose of engaging in a Wright Line analysis, which is de-
signed to help untangle cases in which there is evidence
of unlawful and lawful motives. Stated differently, evi-
dence of unlawful motivation is required to satisfy the
General Counsel’s initial burden (at Wright Line stage
one), but the judge’s approach would result in a violation
even where the respondent satisfied its Wright Line bur-
den at stage two. Again, the relevant question, when
evaluating a Wright Line stage-two showing, is whether
lawful reasons relied upon by the respondent would have
resulted in the same discipline or discharge decision even
assuming the existence of unlawful motivation.
The burden-shifting approach adopted in Wright Line
provides “a formal framework within which . . . [the re-
spondent may] establish its asserted legitimate justifica-
tion.”11 Under this framework, the burden of establish-
ing this legitimate justification comes into existence if,
and only if, the General Counsel sustains his initial bur-
den of showing the employee’s protected conduct was a
motivating factor in the employer’s adverse employment
decision. Even if the General Counsel sustains this bur-
den, the Wright Line framework “permits an employer to
avoid being adjudicated a violator by showing what his
actions would have been regardless of his forbidden mo-
tivation. It extends to the employer what the Board con-
siders to be an affirmative defense.”12 Under this
framework, then, evidence of the employer’s unlawful
intent is properly considered at Wright Line stage one,
when determining whether the General Counsel sus-
tained his initial burden. However, evidence of unlawful
intent is irrelevant to the question of whether the em-
ployer would have taken the same actions based on per-
missible considerations. By double-counting evidence of
unlawful intent when analyzing the Respondent’s de-
fense burden, the judge improperly applied Wright Line’s

11 251 NLRB at 1089.
12 Transportation Management, 462 U.S. at 400–401.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
“formal framework” and gave inadequate consideration
to the Wright Line stage-two analysis.
Here, based on the record evidence, and putting aside
the Respondent’s unlawful motivation, I concur that the
Respondent failed to show it would have fired Rabb for
using silent hold. The record indicates that Rabb and
other ISAs commonly used silent hold to take breaks
during calls, and the Respondent’s coaches knew about
this practice.13 Rabb—whose testimony the judge found
“highly credible” and “virtually unrebutted”—estimated
he had used silent hold 1500 times prior to his termina-
tion, and he was not disciplined on these occasions.
Rabb testified that he advised his coaches about his prac-
tice and used silent hold in their presence. Several other
ISAs corroborated Rabb’s testimony. ISA Charles Welle
testified that he placed callers on silent hold to go to the
restroom or get a drink. Welle, ISA Raymond Best, and
ISA Jonathan Hughes testified they frequently observed
other ISAs using silent hold and leaving their work-
stations. Best and ISA Anne Tallman testified that their
coaches had instructed them to use silent hold instead of
HOLD AUX on calls.14
The Respondent introduced evidence of other ISAs
who were discharged for conduct it claims was similar to
Rabb’s, including two ISAs who were discharged for
placing callers on silent hold and three ISAs who were
terminated solely for once staying on a call without a
customer for a short time. However, I agree that this
evidence is insufficient to establish that the Respondent
would have fired Rabb solely for using silent hold. As
noted, the evidence shows that use of silent hold was
commonplace and known to coaches. The Respondent
failed to provide any evidence that other ISAs have been
disciplined, much less discharged, for using silent hold a
single time. The two ISAs discharged for placing a call-
er on silent hold were not comparable to Rabb because
they also engaged in much more egregious conduct, in-
cluding willfully giving misinformation to customers,
creating false accounts, and insubordination. And unlike
the use of silent hold, there is no evidence coaches knew
about and condoned ISAs staying on a call without a
customer.
Based on this evidence and a proper analysis under
Wright Line stage two, I agree that the Respondent failed
to establish that Rabb’s use of silent hold, standing alone,
would have resulted in his discharge. Accordingly, I
concur in the majority’s decision to affirm the judge’s

13 I agree with the majority’s findings that Coach Barry Appelhans
was a supervisor and the Respondent’s other coaches were its agents
for purposes of transmitting management’s policies applicable to ISAs.
14 The Respondent failed to call any of its coaches to rebut this tes-
timony.
finding that Rabb’s employment termination violated the
Act.
Dated, Washington, D.C. March 3, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 bene-
fit and protection.
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain the provisions of the “So-
licitation in the Workplace” policy in our employee
handbook that prohibit employees from engaging in
solicitation in work areas during nonwork time and
require management’s approval prior to engaging in
such solicitation.
WE WILL NOT discharge, discipline, or otherwise
discriminate against you for engaging in protected
concerted activities.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce you in the exercise of
the rights set forth above.
WE WILL rescind the provisions of the “Solicita-
tion in the Workplace” policy in our employee
handbook that prohibit employees from engaging in
solicitation in work areas during nonwork time and
require management’s approval prior to engaging in
such solicitation.
WE WILL furnish all of you with inserts for the
current employee handbook that (1) advise you that
the unlawful rules, above, have been rescinded, or
(2) provide the language of lawful rules; or WE WILL
publish and distribute to all current employees at our
facilities in the United States where the current em-
DISH NETWORK, LLC 7
ployee handbook has been or is in effect a revised
employee handbook that (1) does not contain the un-
lawful rules, or (2) provides the language of lawful
rules.
WE WILL, within 14 days from the date of the
Board’s Order, offer David Rabb 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 pre-
viously enjoyed.
WE WILL make David Rabb whole for any loss of
earnings and other benefits resulting from his dis-
charge, less any net interim earnings, plus interest
compounded daily.
WE WILL compensate David Rabb for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file a report with the
Social Security Administration allocating the
backpay award to the appropriate calendar quarters.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference
to the unlawful final warning and unlawful discharge
of David Rabb, and WE WILL, within 3 days thereaf-
ter, notify him in writing that this has been done and
that the final warning and discharge will not be used
against him in any way.
DISH NETWORK, LLC
The Board’s decision can be found at –
www.nlrb.gov/case/27–CA–131084 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 bene-
fit and protection.
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain the provisions of the “Solicita-
tion in the Workplace” policy in our employee handbook
that prohibit employees from engaging in solicitation in
work areas during nonwork time and require manage-
ment’s approval prior to engaging in such solicitation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL rescind the provisions of the “Solicitation in
the Workplace” policy in our employee handbook that
prohibit employees from engaging in solicitation in work
areas during nonwork time and require management’s
approval prior to engaging in such solicitation.
WE WILL furnish all of you with inserts for the current
employee handbook that (1) advise you that the unlawful
rules, above, have been rescinded, or (2) provide the lan-
guage of lawful rules; or WE WILL publish and distribute
to all current employees at our facilities in the United
States where the current employee handbook has been or
is in effect a revised employee handbook that (1) does
not contain the unlawful rules, or (2) provides the lan-
guage of lawful rules.
DISH NETWORK, LLC
The Board’s decision can be found at
www.nlrb.gov/case/27–CA–131084 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Todd Saveland, Esq., for the General Counsel.
Brian D. Baloneck and Christian Antkowiak, Esqs. (Buchanan,
Ingersoll & Rooney P.C.), for the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
David H. Miller and Rachel Graves, Esqs. (The Sawaya Law
Firm), for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. On January
6 and 7, 2015, this case was heard in Denver, Colorado. The
complaint alleged that Dish Network, LLC (Dish or Respond-
ent) violated Section 8(a)(1) of the National Labor Relations
Act (the Act) as follows: by issuing a final warning to, and later
firing, David Rabb for engaging in protected concerted activi-
ties; and by maintaining an unlawful solicitation policy in its
employee handbook.
On the entire record, including my observation of the de-
meanor of the witnesses, and after thoroughly considering the
parties’ briefs, I make the following
FINDINGS OF FACT1
I. JURISDICTION
At all material times, Dish, a Colorado corporation, with a
sales center in Littleton, Colorado (the Call Center), has pro-
vided satellite television and other media services. Annually, it
purchases and receives at the Call Center goods valued in ex-
cess of $50,000 directly from points located outside of Colora-
do. It, as a result, admits, and I find, that it is an employer en-
gaged in commerce, within the meaning of Section 2(2), (6),
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Inside sales associates (ISAs) sell television, internet, and
telephone products over the phone. Over 1,000 ISAs work at
the Call Center, which receives 2500 calls per day. The ISA
slot is a high-turnover job, which has a 60-percent attrition rate,
and average tenure of 12 months.
1. Call Center hierarchy
Emily Evans is the General Manager. David Gass, an inside
sales manager, reports to Evans. Gass oversees multiple coach-
es, who supervise 15-person, ISA teams.
2. ISA—position description
ISAs earn a base salary and commissions. (GC Exhs. 3–4.)
They are expected to meet a minimum closed sales rate.2
Those ISAs, who work 8-hour shifts, receive paid, 30-minute
breaks; whereas, those, who work 10-hour shifts, receive paid,
35-minute breaks.3 In addition, ISAs receive unpaid, 1-hour
meal breaks.
ISAs begin their shift by logging into their computers and

1 Unless otherwise stated, factual findings arise from joint exhibits,
stipulations and undisputed evidence.
2 The closed sale rate is the percentage of successful sales in relation
to total calls.
3 Breaks can be taken in any desired denominations, as long as the
total cap is not exceeded.
transferring into READY AUX mode (i.e., call ready status).4
Sales calls, on average, range from 15 and 30 minutes. Once a
call ends, the system generally transfers a new call to the ISA.
ISAs repeatedly switch in and out of READY AUX, in order
to signify their availability to receive customer calls. When
taking unpaid meal breaks, ISAs log out of the system, and log
in, upon their return. When taking paid breaks, ISAs place
themselves in BREAK AUX. ISAs also place themselves into
COACHING AUX, when receiving supervision, or TRAINING
AUX, when receiving instruction. HOLD AUX temporarily
plays music for holding customers. The system generates an
AUX report, which tracks ISAs’ performance metrics.5 (GC
Exh. 25.)
B. Integrity Policy—ISA Discipline and
Commission Reductions
Dish has an Integrity Policy. It requires ISAs to meet certain
ethical and professional standards during calls, and imposes lost
commission and discipline for protocol breaches.
1. Tier violations
The Integrity Policy divides call protocol breaches into these
categories (Tier violations):
Category Discipline Examples
Tier 1 Up to termina-
tion
Lesser violations (e.g. not
offering internet and de-
laying installation).
Tier 2 Up to termina-
tion
More serious violations (e.g.
omitting disclosures and
misinformation).
Tier 3 Termination
Review
Egregious offenses (e.g. data
misuse, payment without
consent and profanity).
Auto-Fail Discipline Re-
view
Minor offenses (e.g. misread-
ing disclosures and not of-
fering DVR services).
(GC Exh. 5.)
2. Incentive plan and charge back system
In January 2014,6 Dish promulgated an incentive plan, which
set forth a new bonus and payout schedule for successful sales.
(GC Exh. 14.) Dish also retained the Integrity Policy, which
resulted in ISAs’ commissions being docked for committing
Tier violations. (Id.)
3. Detecting Tier violations
Dish uncovers its ISAs’ Tier violations in several ways.
Coaches, who use a wireless headset, monitor calls for Tier
violations. A Quality Assurance Team (QA) also reviews two
calls per ISA per week for Tier violations. Finally, a Sales
Integrity Team (Sales Integrity) investigates ISAs, who are
“red-flagged” (e.g., possess high cancellation rates).

4 ISAs, periodically, attend a Coach-led, team meeting before enter-
ing READY AUX, if call volume permits.
5 AUX usage does not affect an ISA’s compensation, which is pri-
marily based upon their sales metrics.
6 All dates are in 2014, unless otherwise stated.
DISH NETWORK, LLC 9
C. Rabb’s Tenure
Rabb, an ISA, worked at the Call Center from 2012 until his
March 7 firing. He had several Coaches, including Barry
Appelhans, his last supervisor. His wages were sporadically
docked for Tier violations, which prompted his multiple work-
place grievances.7
1. Concerted complaints about Tier policy
a. Workplace complaints
Rabb repeatedly complained to his colleagues (i.e. many of
whom shared his concerns), and management, about the Tier
policy. On August 21, 2013, he emailed Senior Vice President
Joe Clayton, and protested losing commissions and other mat-
ters. (GC Exh. 12). Evans recalled Rabb’s complaints, even his
audacious accusation that Dish was “stealing.” (Tr. 336.)
b. Colorado Department of Labor
In or about December 2013 (i.e. 3 months before his firing),
Rabb elevated his grievances beyond the workplace and filed a
complaint with the Colorado Department of Labor (the DOL)
concerning the Tier policy. He discussed this complaint with
coworkers, Coach Appelhans and Sales Manager Gass. On
January 6, the DOL denied the complaint as falling outside of
its jurisdiction. (GC Exh. 13.)
c. Consideration of a Private Lawsuit
Rabb stated that, on January 30 (i.e., within 5 weeks of his
firing), he and a colleague met with a private attorney regarding
Dish’s pay practices and discussed a possible lawsuit. He esti-
mated that, thereafter, he solicited 15 coworkers to join this
suit.
2. February 18: Final Warning under Solicitation Policy
a. Solicitation Policy
The employee handbook provides as follows:
Solicitation in the Workplace
In the interest of maintaining a proper business environment
and preventing interference with work and inconvenience to
others, employees . . . may not distribute literature . . . of a
personal nature by any means, . . . or solicit for any other rea-
son during work time or in work areas except as specifically
authorized in advance by a vice president or higher. Employ-
ees who are not on work time ([e.g.] . . . on lunch or break)
may not solicit employees who are on work time.
(GC Exh. 17.) This policy is effective at the Call Center and
multiple other sites. (Jt. Exh. 1.)
b. Final Warning
On February 18 (i.e., 3 weeks before his firing), Appelhans
issued Rabb this warning:
On . . . February 18 . . . Rabb . . . solicit[ed] . . . co-workers to
seek . . . an attorney. Soliciting employees … during work

7 He estimated that he lost commissions for Tier violations on 20
occasions. See, e.g. (GC Exhs. 7–8; R. Exh. 18).
time and in work areas is a clear violation of the . . . Solicita-
tion in the Workplace [policy] in the Employee Handbook. . .
This disciplinary action is not being taken for discussing wag-
es or terms and conditions of employment with coworkers, ra-
ther for violating company policy.
(GC Exh. 15.) Rabb admitted soliciting, but, averred that he
did so during non-work time.8
Evans said that an employee complaint prompted this action
against Rabb. (Tr. 337; GC Exh. 24.) She averred that she
deemed this breach egregious, and boldly admitted that she
sought Rabb’s firing solely on this basis. (Tr. 372; GC Exh.
24.) She did not explain, however, why she considered this
single breach of Dish’s solicitation policy to be a terminable
offense.
3. March 7: termination
a. Termination Notification
On March 7, Coach Appelhans9 issued Rabb this Termina-
tion Notification:
On . . . February 28, . . . Appelhans . . . passed . . . [Rabb]
heading towards the bathroom and overheard [him] . . . telling
another agent that he had just returned from lunch, but went in
to coaching AUX to use the restroom. . . . [Appelhans] . . . in-
formed [Rabb] . . . that he had logged him out of his computer
. . . because he was using coaching AUX to go to the re-
stroom, and . . . it is wrong to do so. . . . [Appelhans stated]
that he should use . . . break time. . . .
Upon further investigation [Appelhans] . . . found other simi-
lar punches, each approximately 8 min long. . . . on . . . Febru-
ary 24 . . . and . . . 25. . . .
On . . . March 4, . . . Rabb had gotten up from his desk and
walked away with a customer still on the line. Inside Sales
Manager . . . Gass. . . . went to [Rabb’s] desk and . . . could
not find him. [Gass] . . . noted that [Rabb] . . . had a complet-
ed sale on his computer screen with an account number al-
ready generated . . . [Rabb] . . . returned a few minutes later
to his desk where [Gass] . . . was sitting . . . [When Gass
asked] why he had a customer on mute and was away from
his desk [he] . . . . replied . . . I went to use the restroom.
[Gass] . . . told him that he was outside of his break time and
that he was not on lunch. . . .
(GC Exh. 18.)10 Rabb replied, in writing, that, “[g]oing to re-
stroom during sale–ongoing behavior—known to all four (4)
coaches–no such counseling or verbal warnings.” (Id.)
b. Rabb’s assertions
Rabb explained that, on March 4, he successfully completed
a credit check and asked his customer to hold for a few
minutes, in order to afford him a window to generate an ac-
count number and complete paperwork. He testified that he

8 He acknowledged that he might have solicited his coworkers on
the work floor.
9 Appelhans was terminated in August 2014.
10 Appelhans did not testify; Dish also did not offer exhibits show-
ing Rabb’s February COACHING AUX usage.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
also went to the restroom during this period, and found Gass
waiting for him when he returned. He said that he admitted his
actions to Gass and completed the sale. He related that, after a
successful credit check, he frequently placed customers on hold
to use the restroom or take a short break.11 He noted that he
repeatedly advised Coaches Appelhans, Tepu Manowar, Eric
Robb and Peter Schmidt about this practice, without conse-
quence.12 He stated that he never summoned management to
aid him and was astonished, when Gass sought him out. He
thought that Gass’ behavior was unusual, inasmuch as he be-
came irate over what had previously been commonplace. He
related that he never previously used BREAK AUX to use the
restroom. He, instead, averred that he used COACHING AUX,
or silent hold, for such breaks. He estimated that a round trip to
the restroom was only 3 minutes, and that calls ranged from 15
to 90 minutes. He added that his telephone featured two hold
options: HOLD AUX, which played music; and silent hold. He
noted that he was previously told by Coaches not to use HOLD
AUX. He stated that Appelhans was seated diagonally across
from his work station, and that his actions were transparent.
Raymond Best, a former ISA,13 testified that he was super-
vised by Appelhans and was also a member of Rabb’s team.
He related that, while on another team, Coach Robb directed
him to use silent hold for customers because HOLD AUX us-
age would reflect poorly on his AUX statistics.14 He stated
that, once assigned to Appelhans’ team, he continued to use
silent hold during calls, and that Appelhans observed him do so
repeatedly.
Ann Tallman, a former ISA,15 stated that, in 2013, she re-
ported to Appelhans. She stated that she repeatedly used silent
hold to: take short breaks; consult with Coaches; or use the
restroom. She described Dish’s direction regarding this issue
as ambiguous.
Charles Welle, an ISA,16 stated that he has been supervised
by various Coaches, including Appelhans, and was also on a
team with Rabb. He stated that he used silent hold for many
reasons, including: clearing his throat; asking a question; using
the restroom; or getting a drink. (Tr. 241.) He said that
Appelhans knew about these practices and noted that the red
silent hold light that illuminated on his phone was conspicuous.
He stated that he continues to use silent hold to use the re-
stroom. He said that, when he walks around the Call Center, he
repeatedly observes red silent hold lights illuminated. He said
that he never left his phone on silent hold, and returned to find
supervision awaiting. He stated that, beyond Rabb, he has nev-
er heard of someone being disciplined for placing a customer

11 He estimated that, of his roughly 3000 sales, he engaged in this
practice 1500 times, without discipline.
12 He explained that he openly stated to them that he was “generat-
ing an account number,” which was his “code” for a restroom break.
He said that they understood his intentions, and made no effort to ban
this practice.
13 He was employed at the Call Center from July 2013, through
April 2014.
14 Robb was, without explanation, never called to rebut this matter.
15 She was employed at the Call Center from April 2011, through
January 2014.
16 He has been employed at the Call Center since January 2012.
on silent hold.
c. Dish’s stance
Evans stated that, while meeting in a conference room with
Gass, Appelhans and Floor Manager Sean Ayers, Rabb was
observed arising from his desk. She stated that they grew wor-
ried that he needed their help, and Gass was dispatched. She
added that Appelhans was not sent because he was in the midst
of a discussion. She related that, because the conference room
was 15 feet from Rabb’s desk, they were able to see his phone’s
red light illuminated.17 She stated that Gass learned that Rabb
had left a customer on silent hold at the end of a transaction in
order to use the restroom, which she deemed to be a serious
breach.18 She stated that he should have finished the call and
then used BREAK AUX. See (R. Exh. 22). She noted that
Rabb was previously told not to use COACHING AUX for
restroom breaks by Appelhans and considered this situation to
be analogous. See (R. Exh. 23). She explained that Dish has
repeatedly told ISAs that excessive silent hold usage was pro-
hibited.19 (GC Exh. 19; R. Exhs. 15, 27–28.) She averred that,
on this basis, she concluded that termination was warranted.
She averred that his Final Warning for solicitation was a non-
factor in his termination decision, even though she contradicto-
rily sought his firing at that time as well. She inexplicably
stated that, although she knew that Rabb claimed that his
Coaches accepted his restroom practices, she never investigated
this matter. (Tr. 357–358.)
Gass testified that Appelhans saw Rabb leave his desk, while
a caller was on hold, and he was sent to investigate. He esti-
mated that Rabb had less than a minute of work remaining,
when he left the call. He said that, when Rabb returned, he
admitted that he went to use the restroom.
Jonathan Hughes, an ISA, averred that ISAs cannot place a
customer on silent hold to use the restroom. In spite of this
contention, he agreed, however, that he has routinely seen ISAs
use silent hold and leave their workstations. He added that he
utilizes BREAK AUX to go to the restroom, although his AUX
usage exceeded his allotment by 47 percent.20 See (GC Exh.
25.) Kenneth Paris, an ISA, posited that placing a customer on
silent hold was not suitable for restroom breaks. Ironically, his
BREAK AUX usage was a whopping 121 percent above the
reported 35-minute allotment.21 (Id.)
d. Related Call Center Discipline
This chart summarizes Termination Notifications issued at
the Call Center for what Dish globally classified as “call avoid-
ance” issues, which were akin to Rabb’s transgression:

17 Rabb’s desk was elevated due to an accommodation, which fur-
ther facilitated the observation of this light.
18 Evans stated that silent hold should be limited to short questions
for Coaches, sneezes or coughs, or for quick account reviews. She
noted silent hold usage is subject to abuse, and considers it a way to
avoid calls.
19 vans said that this policy was announced at team meetings and
orientation, and posted on a bulletin board.
20 No evidence was presented, which demonstrated that he was dis-
ciplined for exceeding the BREAK AUX cap.
21 No evidence was presented, which demonstrated that he was dis-
ciplined for exceeding the BREAK AUX cap.
DISH NETWORK, LLC 11
Date Employee Summary of Discharge Events
Jan. 2012 B. Jones Lingering in a customer’s voicemail
for over 40 minutes, and using
profanity in the workplace
(caught by QA or Sales Integrity)
Dec.2012 C.
Luckner
Call avoidance, placing customer on
unnecessary silent hold on 8 occa-
sions ranging from 5 to 15
minutes each, willful misinfor-
mation to customers on 4 occa-
sions regarding equipment and
pricing , and creating false ac-
count (caught by Sales Integrity).
Jan. 2013 L.
Lewnard
Placing customers on unnecessary
holds, repeatedly and hostilely
telling a supervisor while pointing
a finger that he didn’t have to lis-
ten to him, and double the amount
of approved break time (caught by
Call Center Management).
Mar.
2013
J. Behm Staying on a call without a customer
for 36 minutes (caught by QA).
Date Employee Summary of Discharge Events
Aug.
2013
P. Wil-
liams
Staying on a call without a customer
for 10 minutes (caught by Sales
Integrity).
Aug.
2013
S. Bissell Staying on a call without a customer
for 6 minutes (caught by QA or
Sales Integrity).
Aug.
2013
J. Brown Call avoidance on 8 occasions over 5
days by calling an outbound num-
ber without a customer on the
other end and lingering for several
minutes each time (caught by
QA).
Sep.
2013
K. Baasch Staying on a call without a customer
for 6 minutes (caught by Sales In-
tegrity).
Dec.
2013
E. Niel-
sen
Placing 30 calls to same number,
without leaving a message
(caught by QA).
Sep.
2014
K. War-
rick
Staying on a call without a customer
for 49 minutes (caught by QA)
(R. Exhs. 5–14; Tr. 372–375).
e. Findings
Although most of the relevant facts are undisputed, several
key matters remain contested, and require a credibility resolu-
tion. These issues regard: Rabb’s past practice of using silent
hold for restroom breaks; his Coaches’ awareness and ac-
ceptance of this practice; other ISAs’ practices regarding silent
hold usage and managerial knowledge; and whether Evans and
Gass were acting in good faith when they reportedly aided
Rabb.
(i.) Rabb’s Silent hold practices and
management’s awareness
Rabb’s testimony that, prior to his firing, he openly and rou-
tinely used silent hold for restroom breaks with his Coaches’
knowledge, and without disciplinary consequence, was highly
credible. As a threshold matter, he had a stellar demeanor; he
was forthright, reliable, and consistent on direct and cross.
Dish also failed to produce a single Coach to counter his testi-
mony on this point.22 It is also probable that, if Rabb routinely
placed customers on silent hold, Dish would have responded
vastly earlier in his tenure, if such actions were genuinely pro-
hibited.23 Moreover, Rabb’s contention that his silent hold
practices were tolerated was corroborated by other witnesses.
Tallman and Welle, who possessed highly credible demeanors,
stated that they use silent hold to use the restroom, have con-
sistently observed other ISAs use silent hold for a range of
reasons, and routinely observe a mosaic of illuminated hold
lights at the Call Center.24 Moreover, although Hughes and
Paris both testified that they thought it was prohibited to use the
silent hold for restroom breaks, they nevertheless agreed that
they have repeatedly observed other ISAs using silent hold. I
find, as a result, that while Dish has a rule prohibiting excessive
silent hold usage, its enforcement of this rule is, at best, listless.
Consequently, Rabb and many others, with the tacit approval of
their Coaches, routinely placed callers on silent hold to use the
restroom or for an array of other reasons. Finally, the conspic-
uous lack of discipline regarding silent hold usage further
demonstrates Dish’s evisceration of its own rule.
(ii.) Good faith
Contrary to Evans’ and Gass’ contentions to the contrary, the
record does not demonstrate that they benevolently sought to
assist Rabb before his termination, only to unwittingly uncover
his alleged duplicity. I find, instead, that they placed Rabb
under close scrutiny as a result of his complaints about Dish’s
pay practices, and seized upon his longstanding restroom prac-
tices, as a mechanism to jettison a perceived malcontent. First,
I found Evans and Gass to be wholly unbelievable witnesses,
who appeared keenly focused on advancing their case, at the
expense of offering truthful testimony.25 Second, I find it im-
plausible that management would have spontaneously with-
drawn from a closed door meeting to assist an ISA, who was
not obviously seeking assistance. Moreover, if Rabb, who is

22 Given that Appelhans was fired by Dish, an adverse inference is
not being drawn. See Goldsmith Motors Corp., 310 NLRB 1279, 1279
fn. 1 (1993). The same can be said for the other Coaches, inasmuch as
the record fails to demonstrate whether they remain employed by Dish.
Dish’s failure to present these witnesses, however, resulted in Rabb’s
contention on this point being virtually unrebutted, and, consequently,
afforded considerable weight.
23 Rabb’s usage of silent hold on approximately 1500 other occa-
sions was wholly unrebutted.
24 Best, who also possessed a credible demeanor, credibly stated that
he observed other ISAs place callers on silent hold, by virtue of the
numerous red lights that he saw illuminated.
25 They were also inconsistent on a key point, with Evans stating
that she sent Gass to aid Rabb because she was talking to Appelhans,
and Gass contradictorily stating that Evans sent him because he was
closest to the door.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
quite outspoken, required assistance, his request would have
been unmistakable. Third, if Gass truly wanted to help Rabb,
he would have, instead, located him, instead of waiting at his
desk. Fourth, if Evans truly had benevolent intentions regard-
ing Rabb, she would not have previously sought his termination
for a minor breach of her unlawful solicitation rule. Fifth, it is
equally implausible that Evans would have dispatched Gass to
aid Rabb, when Appelhans, his Coach and Gass’ subordinate,
was available. Finally, Evans’ good faith is also incredible,
given that she failed to even ask his Coach whether his silent
hold usage was routine and accepted.
4. Statistics on AUX usage
An exhibit was proffered, which summarized ISAs’ BREAK
AUX usage at the Call Center from March 2013 to June 2014.
(GC Exh. 25.) During this period, ISAs used 106 percent of
their BREAK AUX allotment.26 One ISA, Sarah Story, used
214.47 percent of her BREAK AUX allotment.27 Another ISA,
Paul Blankly, used 121 percent of his allotment.28 Simply put,
multiple ISAs exceeded their Break AUX cap and remain gain-
fully employed.29 Evans conceded that some ISAs exceed their
break time, and, surprisingly, described this scenario as “com-
mon,” even though this scenario is akin to the call avoidance
breach that was offered as the basis for Rabb’s firing. (Tr.
302.)
D. Lawsuit
On July 25, 2014, Rabb and others filed a lawsuit against
Dish. (GC Exh. 21.) The complaint challenged the Tier policy
and alleged violations of Colorado’s Wage and Hour Law.
III. ANALYSIS
A. Solicitation Policy
The Solicitation in the Workplace policy is unlawful.30 In
determining whether the maintenance of a work rule violates
Section 8(a)(1), the appropriate inquiry is whether it reasonably
tends to chill employees in the exercise of their Section 7
rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd.
203 F.3d 52 (D.C. Cir. 1999). The Board has, consequently,
held that, “an employer may not generally prohibit union solici-
tation ... during nonworking times or in nonworking areas.”
Restaurant Corp. of America v. NLRB, 827 F.2d 799, 806 (D.C.
Cir. 1987). Although employers can generally ban solicitation
in working areas during working time, such bans cannot extend
to working areas during nonworking time. Food Services of
America, Inc., 360 NLRB No. 123, slip op. at 7 (2014). It is
also generally verboten to require employees to obtain manage-
rial approval prior to engaging in Section 7 activity. Brunswick
Corp., 282 NLRB 794, 795 (1987).
The Solicitation in the Workplace policy is unlawful. Its

26 Out of the 48 ISAs listed, 21 exceeded their BREAK AUX allot-
ment (i.e., 44 percent).
27 Story was ultimately terminated, although the record fails to de-
scribe the basis.
28 ISA Blankly remains employed.
29 ISAs Chaney, Hughes, Paris and Pearce provide examples. (Tr.
386.)
30 This allegation is listed under complaint pars. 4 and 6.
blanket prohibition of all work area solicitations, including
those work area solicitations that occur during nonwork time, is
unlawful. Food Services of America, Inc., supra. This policy
also unlawfully requires obtaining management’s approval
before embarking on such solicitations. Brunswick Corp., su-
pra.
B. Rabb’s Final Written Warning and Termination
Dish unlawfully issued a final warning to, and subsequently
discharged, Rabb. The complaint alleged that these actions
violated Section 8(a)(1).31
1. Protected activity
Rabb, clearly, engaged in protected concerted activity. The
Board has held that activity is concerted, when an individual’s
grievance is a logical outgrowth of group concerns. Amelio’s,
301 NLRB 182 (1991). The Board has, accordingly, found that
“ostensibly individual activity may . . . be concerted activity if
it directly involves the furtherance of rights which inure to the
benefits of fellow employees.”32 Anco Insulations, Inc., 247
NLRB 612 (1980). The Board has, thus, found that an individ-
ual’s solicitation of their coworkers to join a wage and hour suit
against their employer is protected concerted activity. See, e.g.,
Murphy Oil USA, Inc., 361 NLRB No. 72, slip op. at 6 (2014);
Host International, 290 NLRB 442, 443 (1988). In the instant
case, Rabb repeatedly complained about wage policy and solic-
ited coworkers to join his connected suit. He filed a complaint
with the DOL concerning such policy, and was named as a
plaintiff in the resulting action. Dish, in its brief, conceded that
he engaged in protected activity.
2. February 18, 2014: final warning
Rabb’s Final Warning violated the Act. The Board has held
that discipline imposed pursuant to an unlawful rule is invalid
under the following circumstances:
Discipline imposed pursuant to an unlawfully overbroad rule
violates the Act in those situations in which an employee vio-
lated the rule by (1) engaging in protected conduct or (2) en-
gaging in conduct that otherwise implicates the concerns un-
derlying Section 7 of the Act. Nevertheless, an employer will
avoid liability for discipline imposed pursuant to an overbroad
rule if it can establish that the employee's conduct actually in-
terfered with the employee's own work or that of other em-
ployees or otherwise actually interfered with the employer's
operations, and that the interference, rather than the violation
of the rule, was the reason for the discipline. . . . It is the em-
ployer's burden, not only to assert this affirmative defense, but
also to establish that the employee's interference with produc-
tion or operations was the actual reason for the discipline. In
this regard, an employer's mere citation of the overbroad rule
as the basis for discipline will not suffice to meet its burden.
Rather, assuming that the employer provides the employee
with a reason (either written or oral) for its imposition of dis-

31 These allegations are listed under pars. 5 and 6 of the complaint.
32 See also The Loft, 277 NLRB 1444, 465 (1986) (single employ-
ee’s complaint about employer’s handling of problem is concerted
activity); Richboro Community Mental Health Council, 242 NLRB
1267 (1979).
DISH NETWORK, LLC 13
cipline, the employer must demonstrate that it cited the em-
ployee's interference with production and not simply the vio-
lation of the overbroad rule.
Continental Group, Inc., 357 NLRB 409, 412 (2011) (citations
omitted).
Rabb received discipline under the unlawful Solicitation in
the Workplace policy for engaging in protected concerted activ-
ity (i.e. soliciting coworkers to join his lawsuit challenging
wage policy). Dish made no showing that his activities inter-
fered with his own work, the work of others, or Call Center
operations. His final warning was, accordingly, unlawful.
3. March 7, 2014: termination
Rabb’s termination was unlawful. In assessing whether a
discharge is unlawful, the Board applies a mixed motive analy-
sis, which is set out in Wright Line, 251 NLRB 1083 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). Under Wright Line,
the General Counsel must first demonstrate, by a preponder-
ance of the evidence, that the worker’s protected conduct was a
motivating factor in the adverse action. The General Counsel
satisfies this initial burden by showing: (1) the individual’s
protected activity; (2) employer knowledge of such activity;
and (3) animus. If the General Counsel meets his initial bur-
den, the burden shifts to the employer to prove that it would
have taken the adverse action, even absent the protected activi-
ty. See, e.g., Mesker Door, 357 NLRB 591, 592 (2011). The
employer cannot meet its burden, however, merely by showing
that it had a legitimate reason for its action; rather, it must
demonstrate that it would have taken the same action in the
absence of the protected conduct. Bruce Packing Co., 357
NLRB 1084, 1086–1087 (2011). If the employer’s proffered
reasons are pretextual (i.e., either false or not actually relied
on), the employer fails by definition to show that it would have
taken the same action for those reasons regardless of the pro-
tected conduct. Metropolitan Transportation Services, 351
NLRB 657, 659 (2007).
a. Prima facie case
The General Counsel made a prima facie Wright Line show-
ing. As noted, Rabb engaged in protected activity, which Dish
was admittedly aware of. Evans bore animus against such ac-
tivity, when she sought his firing for breaching the solicitation
policy. Animus is also shown by the close timing between
Rabb’s escalated protected activity (i.e., filing a DOL com-
plaint and soliciting workers to join his lawsuit) and his firing,
which all occurred within 3 months. La Gloria Oil & Gas Co.,
337 NLRB 1120 (2002), enfd. 71 Fed.Appx. 441 (5th Cir.
2003).
b. Affirmative defense
Dish failed to show that it would have terminated Rabb, ab-
sent his protected activity. First, he had a longstanding practice
of placing customers on silent hold to use the restroom, which
was tacitly accepted by his Coaches. Dish’s seizure upon this
long-term practice as disciplinary fodder, only after he engaged
in protected activity, deeply undercuts any claim of evenhanded
intent.33 Second, Dish’s conspicuous lack of analogous disci-
plinary examples suggests invidious intent (i.e. the clear ab-
sence of discharges for placing callers on silent hold).34 Third,
given that other ISAs routinely exceed their BREAK AUX
allotment without disciplinary consequences, Dish’s decision to
fire Rabb for using silent hold to use the restroom instead of
BREAK AUX is problematic .35 See (GC Exh. 25). Fourth,
the methodology that Dish used to trap Rabb suggests invidious
intent. Evans and Gass misrepresented their intentions about
trying to benevolently aid him, and, instead, sought to ensnare
him. Fifth, if Dish’s intentions were truly evenhanded, it would
have responded less drastically to someone using the re-
stroom.36 Moreover, Evans fired him, without even taking the
very obvious and fair step of asking his Coaches whether they
had accepted his conduct. She also sought to fire him twice
before the March 8 incident for solely breaching the solicitation
policy. Evans, as a result, appears to have been keenly moti-
vated to remove Rabb; the only plausible explanation for this
malicious intent was retaliation for his protected activity. Last-
ly, as noted, the close timing between his firing and escalation
of his protected activity further supports discrimination. In
sum, the above-described factors independently, and collective-
ly, show that Dish would not have fired Rabb, absent his pro-
tected activity.
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. Dish violated Section 8(a)(1) of the Act by maintaining a
Solicitation in the Workplace policy in its Employee Handbook,
which banned solicitation in working areas during nonworking
time, and required management’s approval prior to such solici-
tations.
3. Dish violated Section 8(a)(1) of the Act by issuing Rabb a
final warning, and later discharging him, because he engaged in
protected concerted activities.
4. 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

33 Moreover, if Rabb’s actions were truly verboten, Dish would ad-
dress the multitude of ISAs, who continue to use silent hold.
34 Although Dish offered Luckner and Lewnard as examples, these
individuals also engaged in gross insubordination, lied and created false
accounts. Dish did not provide any records, however, which demon-
strated an ISA, other than Rabb, being fired for solely placing a caller
on silent hold. Given that the record reveals that this activity is some-
what rampant at the Call Center, this lack of discipline renders Rabb’s
firing dubious.
35 Or put another way, if Dish were truly concerned with ISAs
avoiding their calls, it would also respond to the multitude of ISAs,
who exceed their BREAK AUX allotment.
36 It is plausible that a reasonable employer would have first warned
Rabb, who was a somewhat long term ISA holding a job where most
leave after only a year, instead of firing him. The decision to sever all
ties, and then expend resources hiring and training a new ISA, instead
of first attempting rehabilitation is unconvincing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
action designed to effectuate the policies of the Act. Given that
its policy is maintained on a companywide basis, it shall be
ordered to post a notice at all of its facilities where the unlawful
policy has been, or is, in effect.37 See Longs Drug Stores Cali-
fornia, 347 NLRB 500, 501 (2006); Guardsmark LLC, 344
NLRB 809, 812 (2005). Its duty to rescind or modify the un-
lawful policy is governed by Guardsmark LLC, supra.38
Dish, having unlawfully discharged Rabb, must offer him re-
instatement and make him whole for any loss of earnings and
other benefits. Backpay shall be computed on a quarterly basis
from the date of his discharge to proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
Dish shall expunge from its records any references to his final
warning and discharge, provide written notice of such expunc-
tion, and inform him that its unlawful conduct will not be used
against him as a basis for future actions. Respondent shall
compensate Rabb for any adverse tax consequences tied to
receiving a lump-sum backpay award, and file a report with the
Social Security Administration, which allocates this award to
the appropriate calendar quarter(s). Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB No. 10 (2014).
Dish shall nationally distribute remedial notices electronical-
ly via email, intranet, internet, or other appropriate electronic
means to its employees, in addition to the traditional physical
posting of paper notices, if it customarily communicates with
workers in this manner. See 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 recommended39
ORDER
Dish Network, LLC, Englewood, Colorado, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a Solicitation in the Workplace policy in its
employee handbook, which bans solicitation occurring in work-
ing areas during nonworking time, and requires management’s
approval prior to engaging in such solicitations.

37 This policy is maintained nationally at over 100 locations. See
(Jt. Exh. 1).
38 “The Respondent may comply with our Order by rescinding the
unlawful provisions and republishing its employee handbook without
them. We recognize, however, that republishing the handbook could
entail significant costs. Accordingly, the Respondent may supply the
employees either with handbook inserts stating that the unlawful rules
have been rescinded, or with new and lawfully worded rules on adhe-
sive backing which will cover the old and unlawfully broad rules, until
it republishes the handbook without the unlawful provisions. Thereaf-
ter, any copies of the handbook that are printed with the unlawful rules
must include the new inserts before being distributed to employees.”
Guardsmark, supra at 812 fn. 8.
39 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.
(b) Issuing employees final warnings, terminations or other
discipline because its employees have engaged in protected
concerted activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing 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) Rescind or modify the language in the Solicitation in the
Workplace policy to the extent that it prohibited employee so-
licitation occurring in working areas during nonworking time,
and required management’s approval prior to engaging in solic-
itation.
(b) Furnish all current employees with inserts for the em-
ployee handbook that
1. Advise that the unlawful rule has been rescinded, or
2. Provide the language of lawful rule or publish and distrib-
ute a revised Employee Handbook that
i. Provides the language of lawful rule.
ii. Within 14 days from the date of the Board’s Order,
offer David Rabb his former job or, if such job no longer
exists, offer him a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(d) Make David Rabb whole for any loss of earnings and
benefits suffered as a result of the discrimination against him,
in the manner set forth in the remedy section above.
(e) Compensate Rabb for any adverse tax consequences tied
to receiving a lump-sum backpay award, and file a report with
the Social Security Administration, which allocates the backpay
award to the appropriate calendar quarter(s).
(f) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to David Rabb’s unlawful
final warning and discharge, and within 3 days thereafter notify
him in writing that this has been done and that his discipline
will not be used against him in any way.
(g) 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 backpay amounts
due under the terms of this Order.
(h) Within 14 days after service by the Region, post at each
of its facilities in the United States, where its Employee Hand-
book is in effect, copies of the attached notice, marked “Ap-
pendix.”40 Copies of the notice, on forms provided by the Re-
gional Director for Region 27, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-

40 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.”
DISH NETWORK, LLC 15
spicuous places, including all places where notices to employ-
ees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, it shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed it at any time since December 18,
2013.
(i) 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. March 26, 2015
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 maintain provisions in our Employee Hand-
book, which prohibit employees from soliciting in work areas
during nonwork time, and require management’s approval be-
fore soliciting.
WE WILL NOT fire you, issue final warnings, or otherwise dis-
criminate against you because you collectively complain about,
or file a lawsuit concerning, the Integrity System, Tier violation
policy, lost commissions or pay practices, or engage in other
protected concerted activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights set forth
above.
WE WILL rescind or modify the language of the Solicitation
in the Workplace policy in our Employee Handbook to the
extent that it prohibits employee solicitation occurring in work-
ing areas during nonworking time, and requires management’s
approval prior to soliciting.
WE WILL furnish all of you with inserts for the current Em-
ployee Handbook that:
1. Advise that the unlawful provision, above has been re-
scinded, or
2. Provide the language of lawful provisions, or publish and
distribute revised Employee Handbooks that:
a. Do not contain the unlawful provision, or
b. Provide the language of a lawful provision.
WE WILL, within 14 days from the date of this Order, offer
David Rabb full reinstatement to his former job or, if his job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make David Rabb whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to David Rabb’s unlawful final
warning and discharge.
WE WILL, within 3 days thereafter, notify David Rabb in
writing that this has been done and that the final warning and
discharge will not be used against him in any way.
WE WILL compensate Rabb for any adverse tax consequences
tied to receiving a lump-sum backpay award, and WE WILL file a
report with the Social Security Administration, which allocates
this award to the appropriate calendar quarter(s).
DISH NETWORK, LLC