Dish Network, LLC

National Labor Relations Board - Board Decisions

Apr 13, 2017

365 NLRB No. 47 (N.L.R.B. 2017)

365 NLRB No. 47
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 Brett Denney. Case 27–CA–
158916
April 13, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
Upon a charge, a first amended charge, and a second
amended charge, filed by Brett Denney on August 28,
2015, September 10, 2015, and November 12, 2015, re-
spectively, the General Counsel issued a complaint and
notice of hearing on December 14, 2015, and an amend-
ed complaint on March 25, 2016, alleging that the Re-
spondent violated Section 8(a)(1) of the Act by prohibit-
ing the Charging Party from discussing his suspension
with coworkers and has been violating Section 8(a)(1)
by, at all material times, maintaining and enforcing its
“Arbitration Agreement.”
On March 25, 2016, the Respondent, the Charging Par-
ty, and the General Counsel filed a joint motion to waive
a hearing and a decision by an administrative law judge
and to transfer this proceeding to the Board for a decision
based on a stipulated record. On May 27, 2016, the
Board granted the parties’ joint motion. Thereafter, the
Respondent and the General Counsel filed briefs.
On the entire record and briefs, the National Labor Re-
lations Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Colorado corporation with its
headquarters in Englewood, Colorado, and a sales center
in Littleton, Colorado, provides satellite television and
other media services. Annually, the Respondent purchas-
es and receives at the Littleton Call Center goods valued
in excess of $50,000 directly from points located outside
Colorado, and the Respondent derives gross revenues in
excess of $100,000. At all material times, the Respond-
ent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
Since October 24, 2013, the Respondent has required
all applicants for employment to sign and date its Arbi-
tration Agreement. The agreement provides, in relevant
part:
This Mandatory Arbitration of Disputes—Waiver of
Rights Agreement (“Agreement”) acknowledged today
between DISH Network L.L.C. and all of its affiliates
(the term “affiliates” means companies controlling,
controlled by or under common control with, DISH
Network L.L.C.) (DISH Network L.L.C. and its affili-
ates are individually and collectively referred to herein
as “DISH”) and me (“Employee”). In consideration of
the Employee’s employment by DISH (and/or any of
its affiliates) as good and valuable consideration, the
receipt and sufficiency of which are hereby acknowl-
edged, the Employee and DISH agree that any claim,
controversy and/or dispute between them, arising out of
and/or in any way related to Employee’s application for
employment, employment and/or termination of em-
ployment, whenever and wherever brought, shall be re-
solved by arbitration. The Employee agrees that this
Agreement is governed by the Federal Arbitration Act,
9 U.S.C. §§ 1 et seq., and is fully enforceable.
. . . . Regardless of what the above-mentioned Rules
state, all arbitration proceedings, including but not lim-
ited to hearings, discovery, settlements, and awards
shall be confidential and shall be held in the city in
which the Employee performs services for DISH as of
the date of the demand for arbitration, or in the event
the Employee is no longer employed by DISH, in the
city in which the Employee last performed services for
DISH. The arbitrator’s decision shall be final and bind-
ing, and judgment upon the arbitrator’s decision and/or
award may be entered in any court of competent juris-
diction.
The Arbitration Agreement does not have a procedure
for the employee to opt-out of arbitration.
Since at least March 1, 2015, the Respondent has
maintained the Arbitration Agreement (or a similar ver-
sion of the Arbitration Agreement) at all of its nation-
wide locations.
The Charging Party, Brett Denney, was employed by
the Respondent at its Littleton Call Center from about
November 1, 2013, through March 11, 2015. On Octo-
ber 24, 2013, prior to being hired, Denney signed the
Respondent’s Arbitration Agreement.
From about November 12, 2013, to about March 11,
2015, the Respondent maintained a workplace policy
titled, “Direct Sales Call Experience Expectations.” The
policy contained three categories (or tiers) of expecta-
tions of employees when dealing with the Respondent’s
customers. On November 12, 2013, after being hired,
Denney signed a copy of this policy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
On about March 3, 2015,1 the Respondent, by General
Manager Emily Evans, suspended Denney because it
suspected he had violated a Tier Three Expectations pro-
vision.2 At the time of Denney’s suspension he was un-
der investigation for the suspected infraction, and Evans
told Denney not to discuss his suspension with his
coworkers.3
On about August 7, the Respondent filed, and has
since maintained, a Demand for Arbitration with the
American Arbitration Association pursuant to the Arbi-
tration Agreement signed by Denney. The filing de-
scribes the Respondent’s claim against Denney as one
alleging “[c]onversion, unjust enrichment, and breach of
contract.”
B. Discussion
1. Arbitration Agreement
An employer violates Section 8(a)(1) if it maintains an
arbitration policy that employees would reasonably be-
lieve interferes with their ability to file a Board charge or
to access the Board’s processes. U-Haul Co. of Califor-
nia, 347 NLRB 375, 377–378 (2006), enfd. 255
Fed.Appx. 527 (D.C. Cir. 2007). In D. R. Horton, 357
NLRB 2277, 2280 (2012), enf. denied in relevant part
737 F.3d 344 (5th Cir. 2013), and reaffirmed in Murphy
Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in
relevant part 808 F.3d 1013 (5th Cir. 2015), cert. granted
137 S.Ct. 809 (2017), the Board endorsed the Lutheran
Heritage4 test for determining whether employer work
rules interfere with employees’ Section 7 rights. When,
as here, the rule does not explicitly restrict activities pro-
tected by Section 7, the rule is nevertheless unlawful if
(1) employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated
in response to Section 7 activity; or (3) the rule has been
applied to restrict the exercise of such activity. Lutheran
Heritage Village-Livonia, 343 NLRB at 646–647; D. R.
Horton, 357 NLRB at 2280. Additionally, in determining
whether a challenged rule is unlawful, the rule must be
given a reasonable reading, and particular phrases may
not be read in isolation. Lafayette Park Hotel, 326 NLRB
824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999).
We find, as alleged, that the Respondent’s mainte-
nance of the Arbitration Agreement violates Section

1 All dates are in 2015 unless otherwise indicated.
2 The Respondent’s policy states that the Tier Three provisions “are
in place to represent DISH accurately and to avoid serious negative
impacts on both the customer’s experience and the company.” The
stipulated facts do not include specifics of Denney’s purported infrac-
tion.
3 Denney was not disciplined for any communications with co-
workers regarding his suspension or the related investigation.
4 Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
8(a)(1) under prong (1) of the Lutheran Heritage test
because employees would reasonably construe it to pro-
hibit filing Board charges or otherwise accessing the
Board’s processes. The Agreement specifies in broad
terms that it applies to “any claim, controversy and/or
dispute between them, arising out of and/or in any way
related to Employee’s application for employment, em-
ployment and/or termination of employment, whenever
and wherever brought.” In U-Haul Co. of California, 347
NLRB at 377, the Board found that a policy requiring
arbitration of “all disputes relating to or arising out of an
employee’s employment. . . [including] claims. . . recog-
nized by . . . federal law or regulations” violated Section
8(a)(1) because employees reasonably would construe it
to prohibit the filing of Board charges, notwithstanding
that the policy did not explicitly prohibit employees from
resorting to the Board’s procedures. See also D. R. Hor-
ton, 357 NLRB 2278 at fn. 2. We reach the same conclu-
sion here based on the breadth of the policy language
encompassing “any claim . . . in any way related to . . .
employment, whenever and wherever brought.”
Additionally, the Agreement’s confidentiality require-
ment independently violates Section 8(a)(1). A work-
place rule that prohibits the discussion of terms and con-
ditions of employment, as the Respondent’s confidential-
ity provision does by prohibiting employees from dis-
cussing “all arbitration proceedings, including but not
limited to hearings, discovery, settlements, and awards,”
is unlawfully overbroad. See, e.g., Professional Janitori-
al Service of Houston, 363 NLRB No. 35, slip op. at 1 &
fn. 3 (2015) (finding unlawful confidentiality provision
in arbitration policy that prohibited employees from dis-
cussing “any statements and information made or re-
vealed during arbitration”). See also Rio All-Suites Hotel
& Casino, 362 NLRB No. 190, slip op. at 1–3 (2015)
(finding unlawful rule that prohibited disclosure of “any
information about the Company which has not been
shared by the Company with the general public”); Dou-
ble Eagle Hotel & Casino, 341 NLRB 112, 115 (2004)
(finding unlawful handbook rule that prohibited disclo-
sure of “confidential information,” including “griev-
ance/complaint information;”), enfd. 414 F.3d 1249
(10th Cir. 2005), cert. denied 546 U.S. 1170 (2006).
Contrary to another of the complaint’s allegations,
however, we do not find that the Agreement is unlawful
under the rule of D. R. Horton, Inc., supra, that an em-
ployer violates Section 8(a)(1) of the Act “when it re-
quires employees covered by the Act, as a condition of
their employment, to sign an agreement that precludes
them from filing joint, class, or collective claims address-
ing their wages, hours, or other working conditions
DISH NETWORK, LLC 3
against the employer in any forum, arbitral or judicial.”5
Here, the Agreement does not explicitly restrict class or
collective claims, and the stipulated record is devoid of
evidence that the Respondent sought to preclude em-
ployees from pursuing class or collective actions in any
forum. Rather the Respondent’s only action under the
Arbitration Agreement involved its initiation of an arbi-
tration claim against Denney.6 In these circumstances,
we cannot find on this record that employees reasonably
would construe the language of the Agreement to restrict
their class or collective rights. Accordingly, we dismiss
this allegation.7
2. Respondent’s instruction that Denney not discuss his
suspension with others
The complaint additionally alleges that the Respondent
violated Section 8(a)(1) by telling Denney not to discuss
his suspension with his coworkers. We find merit to this
allegation.
It is well established that employees have a Section 7
right to discuss discipline or disciplinary investigations
with fellow employees. See Fresh & Easy Neighborhood
Market, 361 NLRB No. 12, slip op. at 5–6 (2014);
Westside Community Mental Health Center, 327 NLRB
661, 666 (1999). An employer’s action to restrict those
discussions is unlawful absent its demonstration of a
legitimate and substantial business justification that out-
weighs the infringement on employee’s Section 7 rights.
Banner Estrella Medical Center, 362 NLRB No. 137,
slip op. at 2–6 (2015); Hyundai America Shipping Agen-
cy, 357 NLRB 860, 874 (2011), enfd. in relevant part 805
F.3d 309 (D.C. Cir. 2015).8

5 See also Lewis v. Epic Systems, 823 F.3d 1147 (7th Cir. 2016)
(holding mandatory individual arbitration agreement that did not permit
collective action in any forum violates the Act and is also unenforcea-
ble under the Federal Arbitration Act, 19 U.S.C §§1, et seq.), cert.
granted 137 S. Ct. 809 (2017); Morris v. Ernst & Young, 834 F.3d 975
(9th Cir. 2016) (holding requirement that employees individually arbi-
trate all legal claims against employer constitutes concerted action
waiver that violates the NLRA), cert. granted 137 S.Ct. 809 (2017).
6 We further find that, as the stipulated facts do not show that the
Respondent took any action to preclude group litigation in all forums,
or gave any clear indication that it would do so, the Respondent’s ini-
tiation of the arbitration proceeding against Denney did not amount to
enforcement of the agreement in violation of Sec. 8(a)(1). See general-
ly, Citigroup Technology, Inc., 363 NLRB No. 55 (2015) (employer’s
opposition to class treatment of arbitration demand did not violate Sec.
8(a)(1) where its opposition was brought to the attention of the Ameri-
can Arbitration Association but was not the subject of a motion for
dismissal in a court proceeding).
7 Compare Century Fast Foods, Inc., 363 NLRB No. 97, slip op. at
1 fn. 4 (2016) (finding Agreement unlawful where it did not explicitly
restrict class or collective action but the employer had enforced the
Agreement to restrict employees’ Sec. 7 rights).
8 We recognize that the Respondent’s instruction to Denney not to
discuss his suspension does not constitute a confidentiality “rule.”
Here, the stipulated facts show that the Respondent in-
structed Denney not to discuss his suspension with other
employees, but they do not show that the Respondent
offered any justification for its instruction.9 Accordingly,
the Respondent’s instruction violated Section 8(a)(1).
Aliante Gaming, 364 NLRB No. 80, slip op. at 1 (2016);
INOVA Health System, 360 NLRB at 1228–1229.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. By maintaining, as a condition of employment, a
mandatory arbitration agreement which employees rea-
sonably would believe bars or restricts them from filing
charges with the National Labor Relations Board or from
accessing the Board’s processes and by requiring em-
ployees to maintain the confidentiality of all arbitration
proceedings, including but not limited to hearings, dis-
covery, settlements, and awards, the Respondent has en-
gaged in unfair labor practices affecting commerce with-
in the meaning of Section 2(6) and (7) of the Act, and
has violated Section 8(a)(1) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act
by prohibiting Brett Denney from discussing with other
employees the discipline issued to him on March 3,
2015.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative actions designed to
effectuate the policies of the Act. We shall also order the
Respondent to rescind or revise its Agreement and to
notify employees that it has done so. Because the Re-
spondent utilized the arbitration policy on a nationwide
basis, we shall order that the Respondent post a notice at

Instructions directed solely at one employee that “were never repeated
to any other employee as a general requirement” are not work rules.
Flamingo Las Vegas Operating Co., 360 NLRB 243, 243 & fn. 5
(2014). “Nonetheless, the same balancing of [an employer’s] business
justification against employee rights in evaluating the lawfulness of a
confidentiality rule likewise applies to determine whether a confidenti-
ality instruction issued to a single employee violates the Act.” INOVA
Health System, 360 NLRB 1223, 1229 fn. 16 (2014), enfd. 795 F.3d 68
(D.C. Cir. 2015).
9 In its brief, the Respondent contends the instruction was justified
to avoid speculation about what would happen to a new car Denney had
been awarded as part of a Respondent-sponsored contest. However, the
stipulation of facts is silent about the existence of any such concern.
Moreover, even if the stipulated record had referenced such a concern,
it would not justify the infringement of Denney’s Sec. 7 right to discuss
discipline. See generally Hyundai America Shipping Agency, supra at
874 (routine cautioning of employees not to discuss matters under
investigation not justified by employer’s assertion that doing so is
necessary for protection of parties involved in the matter being investi-
gated).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
all locations where the Arbitration Agreement was in
effect. See D. R. Horton, 357 NLRB at 2289.
ORDER
The National Labor Relations Board orders that the
Respondent, Dish Network, LLC, Littleton, Colorado, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining, as a condition of employment, a
mandatory arbitration agreement that employees reason-
ably would believe bars or restricts the right to file
charges with the National Labor Relations Board or to
access the Board’s processes.
(b) Maintaining a mandatory arbitration agreement that
requires employees to maintain the confidentiality of all
arbitration proceedings.
(c) Prohibiting employees from discussing with other
employees any discipline issued to them or matters under
investigation.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its Arbitration Agreement in all of its
forms, or revise it in all of its forms to make clear to em-
ployees that the arbitration agreement does not restrict
employees’ right to file charges with the National Labor
Relations Board or to access the Board’s processes and
that it does not require employees to maintain the confi-
dentiality of arbitration proceedings.
(b) Notify all applicants and current and former em-
ployees who were required to sign the mandatory arbitra-
tion agreement in any form that it has been rescinded or
revised and, if revised, provide them a copy of the re-
vised agreement.
(c) Within 14 days after service by the Region, post at
its Littleton, Colorado location copies of the attached
notice marked “Appendix A” and at all other facilities
where the unlawful arbitration agreement is or has been
in effect, copies of the attached notice marked “Appendix
B.”10 Copies of the notice, on forms provided by the
Regional Director for Region 27, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In

10 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.”
addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates 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 Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice marked “Appendix A” to all current
and former employees employed by the Respondent at
any time since October 24, 2013. If the Respondent has
gone out of business or closed any facilities other than
the one involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice marked “Appendix B” to all current employees
and former employees employed by the Respondent at
those facilities at any time since October 24, 2013.
(d) 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. April 13, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
ACTING CHAIRMAN MISCIMARRA, concurring.
My colleagues find that the Respondent’s Arbitration
Agreement (Agreement) violates Section 8(a)(1) of the
National Labor Relations Act (the Act or NLRA) be-
cause employees would reasonably construe it to prohibit
employees from filing Board charges or otherwise ac-
cessing the Board’s processes. My colleagues also find
that the Agreement’s confidentiality requirement and the
Respondent’s instruction to employee Brett Denney not
to discuss his suspension with other employees also vio-
late Section 8(a)(1). I concur in these findings for the
reasons stated below.1

1 I also concur in the majority’s dismissal of the complaint allega-
tion that the Agreement violated Sec. 8(a)(1) because it waived em-
DISH NETWORK, LLC 5
1. Alleged interference with NLRB charge filing
In pertinent part, the Agreement requires employees to
resolve by arbitration “any claim, controversy and/or
dispute between [the employee and the Respondent],
arising out of and/or in any way related to Employee’s
application for employment, employment and/or termina-
tion of employment, whenever and wherever brought
. . . .” The Agreement further entitles the prevailing
party in any arbitration to its reasonable attorneys’ fees
and costs, which specifically includes any fees and costs
incurred in obtaining a stay or compelling arbitration in
the event either party files “a judicial or administrative
action asserting claims subject to this Agreement.”
For the reasons stated in my separate opinion in Ap-
plebee’s Restaurant, 363 NLRB No. 75, slip op. at 3–5
(2015) (Member Miscimarra, concurring in part and dis-
senting in part), I believe that an agreement may lawfully
provide for the arbitration of NLRA claims, and such an
agreement does not unlawfully interfere with Board
charge filing, at least where the agreement expressly pre-
serves the right to file claims or charges with the Board
or, more generally, with administrative agencies. Here,
however, the Agreement does not qualify in any way the
requirement that all claims related to the employee’s em-
ployment must be resolved exclusively in binding arbi-
tration, and the broad scope of the Agreement appears to
preclude any “administrative action,” such as the filing
of a Board charge. For this reason, I join my colleagues
in finding that the Agreement violates the Act by unlaw-
fully restricting the filing of charges with the Board. See
U-Haul Co. of California, 347 NLRB 375, 377 (2006),
enfd. mem. 255 Fed.Appx. 527 (D.C. Cir. 2007); Murphy
Oil, above, slip op. at 23 fn. 4 (Member Miscimarra, dis-
senting in part) (finding that arbitration agreement un-
lawfully interfered with Board charge filing); GameStop
Corp., 363 NLRB No. 89, slip op. at 6–7 (Member
Miscimarra, concurring in part and dissenting in part)
(finding that Acknowledgment form—part of the em-
ployer’s Rules of Dispute Resolution—unlawfully inter-
fered with Board charge filing); Applebee’s Restaurant,
above (Member Miscimarra, dissenting in part) (finding
that Agreement and Receipt for Dispute Resolution Pro-
gram unlawfully interfered with Board charge filing).

ployees’ right to participate in class or collective actions regarding non-
NLRA employment claims. As my colleagues state, the Agreement
does not restrict the ability of employees to pursue class or collective
actions in all forums. Even if it did, I believe that the Agreement would
be lawful for the reasons fully explained in my dissenting opinion in
Murphy Oil USA, Inc., 361 NLRB No. 72, slip op. at 22–35 (2014)
(Member Miscimarra, dissenting in part), enf. denied in pert. part 808
F.3d 1013 (5th Cir. 2015), cert. granted 137 S.Ct. 809 (2017).
2. Confidentiality provision
The Agreement’s confidentiality clause provides that
“all arbitration proceedings, including but not limited to
hearings, discovery, settlements, and awards shall be
confidential.” I believe this confidentiality provision
violates Section 8(a)(1) because, as noted above, the
Agreement encompasses unfair labor practice claims.
Because many unfair labor practice claims involve con-
certed activity undertaken by two or more employees for
the purpose of mutual aid or protection, the confidentiali-
ty clause at issue here—as applied to arbitration proceed-
ings addressing alleged violations of the NLRA—would
be plainly inconsistent with the Act. There may be cir-
cumstances where an arbitration agreement’s confidenti-
ality provision may be lawful based on justifications un-
related to the NLRA, particularly when the matter being
arbitrated does not implicate NLRA-protected activity.
However, this is not such a case, and the record reveals
no countervailing interest that justifies the scope of the
confidentiality clause at issue here. See Professional
Janitorial Service of Houston, 363 NLRB No. 35, slip
op. at 5 fn. 7 (2015) (Member Miscimarra, concurring in
part and dissenting in part).2

2 Unlike my colleagues, I do not rely on Rio All-Suites Hotel & Ca-
sino, 362 NLRB No. 190 (2015), because I believe the confidentiality
provision at issue there was lawful for the reasons expressed by former
Member Johnson, id., slip op. at 3 fn. 6, and because I also disagree
with the Lutheran Heritage “reasonably construe” test applied by the
Board in Rio All-Suites Hotel & Casino. See William Beaumont Hospi-
tal, 363 NLRB No. 162, slip op. at 7–24 (2016) (Member Miscimarra,
concurring in part and dissenting in part) (rejecting the “reasonably
construe” standard articulated by the Board in Lutheran Heritage Vil-
lage-Livonia, 343 NLRB 646 (2004)).
The Respondent also contends that the Federal Arbitration Act
(FAA) requires that the confidentiality provision in the Agreement be
found lawful “when balanced against the lack of any substantive risk to
employee’s [sic] Section 7 rights.” For the reasons stated in the text, I
believe the Agreement’s confidentiality provision unlawfully interferes
with NLRA Sec. 7 rights, since the Agreement requires arbitration of
claims arising under the NLRA. To the extent that the Respondent
contends that the FAA requires enforcement of arbitration confidenti-
ality provisions regardless of their impact on Sec. 7 rights, the Board
has already rejected such a claim. See California Commerce Club,
Inc., 364 NLRB No. 31, slip op. at 1 fn. 2, 9–10 (2016); id., slip op. at 3
fn. 8 (Member Miscimarra, concurring in relevant part). The Supreme
Court has also recognized that the FAA’s requirement that arbitration
agreements be enforced according to their terms may be overridden by
a “contrary Congressional command.” American Express Co. v. Italian
Colors Restaurant, 133 S.Ct. 2304, 2309 (2013) (citing CompuCredit
Corp. v. Greenwood, 565 U.S. 95, 98 (2012); Shearson/American Ex-
press Inc. v. McMahon, 482 U.S. 220, 226 (1987)). I believe that the
protection NLRA Sec. 7 affords to concerted activities undertaken for
the purpose of mutual aid or protection constitutes a “contrary Congres-
sional command” with respect to confidentiality provisions that are
stated as broadly as the one at issue here, particularly absent a counter-
vailing employer justification that outweighs the potential adverse
impact on NLRA-protected activities. See William Beaumont Hospital,
supra (Member Miscimarra, concurring in part and dissenting in part);
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
3. Instruction not to discuss suspension
The stipulated facts with respect to this allegation are
as follows.
17. On about March 3, 2015, Respondent, by
General Manager Emily Evans, told Charging Party
not to discuss his suspension with his coworkers.
18. Respondent does not dispute that Charging
Party may have been told by General Manager Emi-
ly Evans not to discuss the circumstances surround-
ing his suspension while the alleged Tier Three Ex-
pectations violation was pending investigation.
19. Charging Party was not disciplined for any
communications he may have had with co-workers
regarding his suspension or the related investigation.
For the reasons set forth in my partial dissent in Ban-
ner Estrella Medical Center, supra, slip op. at 8 (Member
Miscimarra, dissenting in part), I believe an employee
may lawfully be asked not to disclose matters that are
discussed in a workplace investigation meeting, even if
such a request is made routinely, particularly where the
matter under investigation may have no relation to
NLRA-protected activity, and where the potential ad-
verse impact on NLRA-protected activity is outweighed
by the importance of preserving the integrity of work-
place investigations. In the instant case, however, the
stipulated facts reveal that (i) Charging Party Denney
was advised “not to discuss his suspension with his
coworkers,” which relates to the discipline imposed on
Denney rather than matters discussed in an investigative
meeting; and (ii) Denney also may have been advised not
to discuss with other employees “the circumstances sur-
rounding his suspension,” which would further expand
the scope of the required nondisclosure pertaining to his
discipline. In these circumstances, I believe the di-
rective(s) to Denney unlawfully interfered with a central
aspect of many if not most NLRA-protected activities:
communications with other workers regarding their
treatment by their employer. Without the ability to en-
gage in such communications, it would be virtually im-
possible for employees to engage in concerted activities
with one another for the purpose of mutual aid or protec-
tion.3 For these reasons, I believe the stipulated record
establishes that the confidentiality directive(s) here were
materially different from the nondisclosure request in

cf. Banner Estrella Medical Center, 362 NLRB No. 137, slip op. at 13–
19 (2015) (Member Miscimarra, dissenting in part) (describing re-
quirement that Board strike a proper balance between asserted business
justifications and potential impact on NLRA rights), appeal pending
No. 15–1245 (D.C. Cir.).
3 See NLRA Sec. 7 (protecting the right of employees to engage in
“concerted” activities for the “purpose” of “mutual aid or protection”).
Banner Estrella, where I believe the Board should have
found that the employer’s nondisclosure request was
lawful based on the relation of the request to the employ-
er’s ongoing workplace investigation.4 Accordingly, I
concur in finding that the directives here violated Section
8(a)(1). See INOVA Health System, 360 NLRB 1223,
1228–1229 fn. 16 (2014), enfd. 795 F.3d 68 (D.C. Cir.
2015).5
Dated, Washington, D.C. April 13, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
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

4 As stated in the text, the parties stipulated that “Respondent, by
General Manager Emily Evans, told Charging Party not to discuss his
suspension with his coworkers” and that “Respondent does not dispute
that Charging Party may have been told by General Manager Emily
Evans not to discuss the circumstances surrounding his suspension
while the alleged Tier Three Expectations violation was pending inves-
tigation.” For the reasons set forth in my partial dissent in Banner
Estrella Medical Center, supra, slip op. at 8 (Member Miscimarra,
dissenting in part), I agree that an employer has a legitimate interest in
restricting disclosure of matters discussed during ongoing investiga-
tions. By its terms, however, the directive(s) here are materially differ-
ent from the request at issue in Banner Estrella, and I do not believe it
is controlling that the Charging Party was not disciplined “for any
communications he may have had with coworkers regarding his sus-
pension or the related investigation.”
In its brief, the Respondent contends that the nondisclosure di-
rective(s) in the instant case were justified to avoid speculation about
what would happen to a new car that Denney had been awarded as part
of a Respondent-sponsored contest. However, this justification is not
evident from the stipulated record. Therefore, I do not reach or pass on
whether such a justification might provide a sufficient justification for
the nondisclosure directive(s) to Denney. Even if such a justification
were supported by record evidence, however, I believe the non-
disclosure directive(s) here would not implicate the types of considera-
tions that supported my conclusion in Banner Estrella that the investi-
gation-related nondisclosure request at issue in that case should have
been declared lawful by the Board.
5 I agree with my colleagues that the instruction to Denney was not
a work rule. INOVA Health System, above.
DISH NETWORK, LLC 7
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, as a condition of employment,
a mandatory arbitration agreement that employees rea-
sonably would believe bars or restricts their right to file
charges with the National Labor Relations Board or to
access the Board’s processes.
WE WILL NOT maintain a mandatory arbitration agree-
ment that requires employees to maintain the confidenti-
ality of all arbitration proceedings.
WE WILL NOT prohibit you from discussing with other
employees any discipline issued to you or matters under
investigation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the mandatory arbitration agreement
in all of its form, or revise it in all of its forms to make
clear that the arbitration program does not restrict your
right to file charges with the National Labor Relations
Board and that it does not require you to maintain the
confidentiality of arbitration proceedings.
WE WILL notify all applicants and current and former
employees who were required to sign the arbitration
agreement in any form that it has been rescinded or re-
vised and, if revised, WE WILL provide them with a copy
of the revised agreement.
DISH NETWORK, LLC
The Board’s decision can be found at
www.nlrb.gov/case/27–CA–158916 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, DC
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, as a condition of employment,
a mandatory arbitration agreement that employees rea-
sonably would believe bars or restricts their right to file
charges with the National Labor Relations Board or to
access the Board’s processes.
WE WILL NOT maintain a mandatory arbitration agree-
ment that requires employees to maintain the confidenti-
ality of all arbitration proceedings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the mandatory arbitration agreement
in all of its form, or revise it in all of its forms to make
clear that the arbitration program does not restrict your
right to file charges with the National Labor Relations
Board and that it does not require you to maintain the
confidentiality of arbitration proceedings.
WE WILL notify all applicants and current and former
employees who were required to sign the arbitration
agreement in any form that it has been rescinded or re-
vised and, if revised, WE WILL provide them a copy of the
revised agreement.
DISH NETWORK, LLC
The Board’s decision can be found at
www.nlrb.gov/case/27–CA–158916 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8