Dish Network Service Corp

National Labor Relations Board - Board Decisions

May 23, 2012

358 N.L.R.B. 398 (N.L.R.B. 2012)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
358 NLRB No. 47
398
Dish Network Service, LLC and Communications
Workers of America, Local 1108. Cases 29–CA–
030578 and 29–CA–030583
May 23, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND FLYNN
On October 12, 2011, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Acting General Counsel filed exceptions and a support-
ing brief, and the Respondent filed an answering 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
to adopt the recommended Order.
ORDER
The complaint is dismissed.

1 Although the judge did not explicitly rely on Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), in dismissing
the 8(a)(3) and (1) allegation concerning the discharge of employee
Shawn Ryals, his analysis is consistent with that decision. Under
Wright Line, the Acting General Counsel has the initial burden of prov-
ing that an employee’s Sec. 7 activity was a motivating factor in the
respondent’s action. If this burden is met, the respondent must show
that it would have taken the same action even in the absence of the
protected activity.
By concluding that any protected activity by Ryals played no role in
the Respondent’s decision to discharge him, the judge effectively found
that the Acting General Counsel failed to meet his initial burden. Even
if the Acting General Counsel satisfied his burden, the judge found that
the Respondent discharged Ryals based on his unauthorized absence
and his loud, aggressive, and unrepentant behavior in a meeting con-
cerning that absence. Thus, the judge essentially determined, and we
agree, that the Respondent met its rebuttal burden under Wright Line.
In adopting the judge’s dismissal of the allegation that the Respond-
ent violated Sec. 8(a)(3) and (1) by withholding stack ranking bonuses
from unit employees, we rely solely on the conclusion that the allega-
tion is time-barred under Sec. 10(b) of the Act. This allegation depends
on a statement made by General Manager John Shaw to Ryals in the
summer of 2009 that “if the Union were dropped,” Ryals and other unit
employees would receive the stack ranking bonuses. However, as the
judge noted, the conversation that included this statement was the sub-
ject of a previous charge alleging a separate violation, and the Acting
General Counsel acknowledged at the hearing that the previous charge
was withdrawn as untimely under Sec. 10(b). The present charge alle-
gation concerning Shaw’s statement about the bonuses is therefore also
time-barred. Accordingly, we find it unnecessary to pass on the judge’s
analysis of the merits of the allegation.
Annie Hsu, Esq., for the Acting General Counsel.
George Basara, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Brooklyn, New York, on July 12, 2011. The charge
Case 29–CA–030578 was filed on January 5, 2011. The charge
and the amended charge in Case 29–CA–030583 were filed on
January 13 and April 25, 2011. The complaint that was issued
on May 10, 2011, alleged as follows:
1. That since July 11, 2010, the Respondent failed to provide
certain bonuses to employees because its employees engaged in
union and protected concerted activity.
2. That on January 3, 2011, the Respondent discharged
Shawn Ryals because in September 2010, he with other em-
ployees complained to the employer about safety issues and in
order to discourage employees from engaging in union or pro-
tected concerted activities.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
It is agreed and I find that the Respondent is an employer
engaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also is agreed and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prior History with the NLRB
The Respondent is a corporation that provides satellite tele-
vision services to customers throughout the United States. Its
headquarters are in Colorado and it operates out of more than
100 facilities, 3 of which are, at the present time, unionized.
The facility involved in the present case is located in Farm-
ingdale, New York, and employs 11 field service technicians.
At this facility, the Union was certified by the Board as the
collective-bargaining reprehensive of the field representatives
on June 21, 2001.
On June 27, 2002, an administrative law judge issued a deci-
sion finding that certain conduct by the Respondent’s managers
at Farmingdale, occurring in or about December 2001, violated
the Act. Despite a dissenting opinion, the Board sustained the
judge’s findings and conclusion in a decision reported at 339
NLRB 1126 (2003). In substance, the Board concluded that the
Respondent violated the Act when it failed to provide the Un-
ion with a copy of a disciplinary action that was issued to an
DISH NETWORK SERVICE, LLC

399
employee and by telling employees that it did not recognize the
union shop stewards.1
Although I do not know when bargaining commenced re-
garding the Farmingdale employees, it is apparent that no
agreement was reached over the next 2 years. The Employer’s
conduct during bargaining was the subject of another unfair
labor practice case that ultimately was decided by the Board on
July 6, 2006, at 347 NLRB No. 69 (not reported in Board vol-
umes). In that case the Board concluded that the Respondent
committed various violations of the Act in 2004. These includ-
ed (1) bypassing the Union and dealing directly with employees
by promising them promotions to managerial positions so that
they no longer would be part of the bargaining unit; (2) telling
employees that their transfer requests were denied because they
were shop stewards; (3) urging employees to sign a petition to
decertify the Union; (4) bypassing the Union and dealing di-
rectly with employees by promising them wage increases,
commissions, and job security if they abandoned their support
for the Union or if they decertified the Union; (5) informing
employees that it would be futile for them to support the Union
because the Union could not assist employees who were dis-
charged; and (6) engaging in surface bargaining with no inten-
tion of reaching an agreement. As part of the remedy, the
Board ordered that the Respondent pay the Union for its bar-
gaining expenses and pay any employees for lost wages caused
by their attendance at negotiations.2
It is not clear from this record, whether the parties recom-
menced negotiations at some point after the Board’s Decision
and Order.
B. The Discharge of Shawn Ryals
At the Farmingdale facility, the field service representatives
are supervised by two field service supervisors (Milton Ander-
son and Chris Lannon). They in turn report to the general man-
ager (John Shaw) and the installation manager (Keith Knip-
schild). The general manager and the installation manager
report to the northeast regional manager who is Bill Savino.
Also tangentially involved in this case is Anthony Bowen who
is the Respondent’s vice president of the northeast region.
There is a corporatewide human resources department that is
headed up by Emily Feugill.
Shawn Ryals began his employment in Raleigh North, Caro-
lina. He asked for and received a transfer to the Farmingdale
office in or about June 2009. When he arrived, he was told
inter alia, that the pay scale and other terms of employment
were different at Farmingdale than what they were at Raleigh

1 The judge dismissed certain other allegations of the complaint. For
example he dismissed the allegation that supervisors threatened em-
ployees with discipline if they discussed with their coworkers or shop
stewards, disciplinary meetings held by the Company. He also dis-
missed an allegation that a supervisor stated that he did not recognize
the Union. Finally, he dismissed an allegation that the Respondent
reneged on an agreement regarding a verbal warning issued to an em-
ployee.
2 More recently in a case at another location, the Board found that
the Respondent engaged in a number of significant violations. Dish
Network Service Corp., 347 NLRB No. 69, above.
or for that matter at all of the other nonunionized facilities in
the United States.
In Farmingdale, Ryals was employed as a field technician
and was one of the people in the bargaining unit. Soon after his
transfer, he joined the Union. However, apart from joining the
Union, he did not engage in any other union activities.
In 2010, Ryals was given an extended bereavement leave
due to a death in his family. He returned to work in August,
having used up all of his leave for the year.
On or about September 12, Ryals was assigned to drive van
number 9 which he refused to drive, asserting that the van was
dirty and that the ladder was loose thereby making the van un-
safe. Ryals talked to his direct supervisor, Milton Anderson
about this and was offered van number 1. According to Ryals,
he refused to drive this van too, because he had heard from
another person that this van had a steering problem. Ryals
asked Anderson about van number 5 and Anderson responded
that this was his van and he needed it. In the end, Ryals told
Anderson that he would not drive either van and he left to go
home.
Ryals testified that he did not receive any disciplinary action
as a result of his refusal to drive the vans. Ryals also testified
that later in September, Bob Malta told him that he had tested
van number 1 and could not find anything wrong with the steer-
ing.
On or about September 13, Ryals clocked in and asked to
speak to Shaw about the events of the day before. Ryals ex-
plained to Shaw why he had refused to take either van the pre-
ceding day and Shaw told him that he had to take van number 1
even after Ryals asserted that it was unsafe. Shaw told him that
if he didn’t take van number 1, he would be out of a job. Ryals
took the van and called a number of people including the Un-
ion’s business agent, John Howell, who told him to drive the
van slowly. Ryals did drive the van and testified that the steer-
ing wheel was so loose that he had to keep moving it to keep
the vehicle going in a straight line.
On or about September 14, Ryals spoke on the phone with
Anthony Bowen, the vice president of the northeast region and
complained about being forced to drive the van. He testified
that Bowen told him that the Company’s policy was to assign
an employee to another van if the employee felt that the vehicle
was unsafe. Ryals said that he felt that the Farmingdale facility
was being treated differently because it was a union shop and
that Bowen did not respond. Ryals told him that he was trying
to get in touch with the human resources department and Bow-
en said that he would make some calls on Ryals’ behalf. Sev-
eral days later Ryals received a call from a person in human
resources who told him that they would have a meeting.
In relation to this incident, I cannot say, based on the evi-
dence at hand, if the vans that Ryals was asked to drive on Sep-
tember 12 and 13 were unsafe. The Respondent’s witnesses
testified that they did have van number 1 tested and that they
did not find any problems with the steering.
At a safety meeting held sometimes later in September 2010,
there were a lot of complaints aired by many of the employees
including Ryals. One of the items was the issue of fall protec-
tion which involves procedures to use a harness when an em-
ployee is working on a customer’s roof. Another issue was a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400
complaint by some of the employees regarding Milton Ander-
son and his style of supervision. Ryals testified that he brought
up the steering wheel issue and that Savino told him to hold off
on that and that he wanted to speak to him privately. Accord-
ing to Ryals, there were many employees who brought up dif-
ferent issues and that no one acted as a spokesman for the
group.
Ryals testified that after the meeting, he was told by Savino
that he wanted Ryals to drop the van issue. Ryals asserts that
he said that he would not because he felt that Shaw had put his
and other employees’ lives in danger. It was at this point; ac-
cording to Ryals that Bob Malta said that he would take out the
van and check it himself.
It is the General Counsel’s theory that a reason that the
Company decided to discharge Ryals in January 2011 was be-
cause of his “concerted” activity of complaining about the van
safety issue in September 2010. She also asserts that a reason
for his discharge was because of his union activity notwith-
standing a lack of evidence showing that he engaged in any
union activity other than becoming a member.
I note here that Ryals never followed up on his van safety
complaints by filing any written complaint internally within the
Company or to any outside agency such as the Department of
Transportation. I also note that as a matter of policy, the driv-
ers are required to list any problems with their vehicles as part
of their regular job duties. It therefore seems less likely that the
Respondent’s supervisors would have been particularly upset
about Ryals’ complaints about a van’s safety expressed in Sep-
tember 2010. And although I can understand why the managers
might have been upset about his refusal to drive a van, this was
a one shot event that resulted in no disciplinary action at the
time. Moreover, it occurred more than 3 months before his
discharge. Assuming that Ryals’ complaints about van safety,
and as expressed in the group meeting in late September, would
be construed as concerted activity, there is no evidence that
Ryals engaged in any other concerted activity between that time
and the time of his discharge.
As noted above, when Ryals returned from bereavement
leave in August 2010, he had used up all of his paid time off.
In November 2010, General Manager Shaw posted a notice
near the timeclock stating that requests for unpaid days off
would not be approved. This was posted because of a heavy
workload and because of anticipated requests by employees for
paid days off during the holiday season.
Under the Company’s policy, employees receive 12 paid
days off which they can take for any reason. Thus, if an em-
ployee had used only 5 paid days off by November, he would
have the right to take 7 more paid days off before the end of the
year. Employees can also take up to 4 unpaid days off if ap-
proved by the Company. Beyond that, employees can be sub-
ject to discipline if they have unexcused absences.
In any event, Ryals had much earlier in the year, booked a
trip to Colorado for the Christmas holidays which would mean
that he intended to be absent from work on December 26 and
27.3 It seems that when the notice was posted, Ryals filled out a

3 He testified that he bought airline tickets in January or February
2010.
form asking for unpaid days off in December and this was de-
clined by Shaw. After the notice was posted, Ryals did not
make any other requests for unpaid time off and made no at-
tempt to change his airline tickets. Instead, he waited until
December 22 when he advised Anderson and Knipschild that
he would not be coming to work on December 26 and 27.
Claiming that they approved or at least didn’t object, Ryals
went to Colorado and, while there, had his return flight can-
celed because of a big snowstorm in New York.
The Company denies that either Anderson or Knipschild ap-
proved Ryals’ absences for December 26 and 27. And in this
regard, it doesn’t seem all that likely that these two people who
were lower in authority, would take it upon themselves to over-
rule a decision previously made by their superior.4
In the meantime, because of the snowstorm, the Farmingdale
facility was closed on December 27 and many employees could
not make it to work on December 28. Obviously, no employees
in New York were penalized for failing to come to work on
either day.
Ryals called in and spoke to Anderson on December 27 to
inform him that his flight had been canceled. He also called on
December 28 because he was still stuck in Colorado. Ultimate-
ly Ryals was able to return to New York on December 29.
On January 1, 2011, Anderson phoned Ryals and told him
not to report to work on January 2. When asked, Anderson told
Ryals that he was being suspended because he had been absent
from work without permission. Ryals thereupon contacted his
union representatives and ultimately a meeting was arranged
for January 3.
On January 3, 2011, a meeting was held at the Company’s
facility. At this meeting, Ryals was represented by two union
representatives. Also attending this meeting was Bill Savino
who happened to be at the facility that day and who hadn’t had
any previous involvement with the situation. The evidence
shows that Savino took charge of the meeting and ran it some-
thing like an investigation or inquest. Savino asked Ryals to
tell him what happened and Ryals related his version of the
events, including his claim that he had been given permission
on December 22 to take the days off. Savino called up Knip-
schild on the speaker phone and he denied this. Ryals testified
that he stated that Anderson was also involved and that Savino
called him up and told him to attend the meeting. According to
Ryals, they waited for Anderson to show up and that Savino
asked him about the situation when he joined the meeting.
Ryals testified that there was some discussion and that in the
end Anderson denied giving him permission to leave. Ryals
concedes that at this point, he got a little angry especially when
it was pointed out to him that he had used up all his paid days
because of a family death. According to Ryals, at this point,
Savino “cut me off and he said, ‘Okay, you’re terminated.’” 5

4 Jaime Bosque, a witness called by the General Counsel did not
support Ryals assertion that Anderson gave him permission to be absent
on December 26 and 27. He testified that he overheard a conversation
between the two men and that Anderson merely said to “follow regular
protocol.” Also, I found Anderson to be a credible witness.
5 Savino’s testimony was basically the same. He testified that; “he
[Ryals] even abused him [Anderson] and I even allowed that to happen,
against my better judgment. Then when I tried to explain to him and he
DISH NETWORK SERVICE, LLC

401
Savino testified that he had no idea what this was all about
when he arrived at the facility on January 3. He testified that
he decided to conduct an investigation into the matter and as
described above, he had Ryals relate his side of the story and
had Knipschild and Anderson relate their version of the events.
Savino testified that when he went into the meeting he was
aware that Ryals had been suspended for taking unauthorized
absences but that he had no intention of firing him at the time.
According to Savino, he made up his mind to terminate Ry-
als when Ryals became loud and aggressive and accused An-
derson of lying. Given that Ryals testified that he got a bit
angry during Anderson’s appearance at the meeting and that
Savino then cut him off and blurted out that he was being fired,
it seems to me that this is how the events actually transpired.
Thus, although the termination notice relates details of Ryals’
absences from December 26 through 29, this does not, in my
opinion, fully explain the reason for his discharge.
Had Ryals simply explained his situation at the meeting on
January 3, I think that Savino would probably have given him
some form of discipline short of termination. In this regard, the
record shows that the local management has not rigidly fol-
lowed its own rules regarding unexcused absences. The records
shows that other employees on numerous occasions have man-
aged to be absent for longer than the written rules allow without
suffering termination.
If the General Counsel had postulated the theory that the Re-
spondent discharged Ryals because of his participation in the
January 3, 2011 meeting, I could see an argument that Ryals’
participation in the meeting would constitute concerted activity
within the meaning of Section 7 of the Act. This was, after all,
a meeting that was attended by union representatives and was
held with the Company to discuss what if any discipline was to
be given to an employee in relation to his absences. (Clearly a
term and condition of employment.) It was, in effect, analo-
gous to a grievance meeting. But this is not the contention.6
In the complaint, at the hearing and in the brief, the General
Counsel asserted that the motivation for discharging Ryals was
(a) because of his union activities and (b) because of his con-
certed activity consisting of his complaints about the safety of
the vehicles he was assigned to drive. The complaint specifi-
cally alleges that Ryals’ concerted activity took place on Sep-
tember 13, 2010, and that he was discharged for engaging in
that specific activity. In neither case, can I agree with the Gen-
eral Counsel that either factor played any role in the decision to
discharge Ryals.
In light of the above, and even though it seems more likely
that Savino decided to discharge Ryals because of Ryals state-
ments at the January 3 meeting; a meeting that could reasona-
bly be construed as concerted, I cannot conclude that this vio-
lated the Act because it is not based on any theory argued by

started getting loud with me, I says [sic] at that point; “You know what,
this conversation’s over, you’re terminated.”
6 Had this been the theory of the case, an issue would have been
whether Ryals’ conduct at this meeting was “misconduct” of the kind
that would have removed it from the Act’s protection. See Atlantic
Steel Co., 245 NLRB 814, 816 (1979).
the General Counsel. See New York Post, 353 NLRB 343
(2008).
C. The Bonus Issue
Ryals testified that in June 2009, he was approached by
Shaw, the local manager, on several occasions and was told that
if the employees decertified the Union they would receive the
bonus plan that was applicable to employees in other parts of
the country. This was in the context of alleged interrogations
about Ryal’s and other employees’ union sympathies. The Un-
ion later filed an unfair labor practice charge relating to these
allegations but it was withdrawn apparently because they oc-
curred more than 6 months before the filing of the charge.
(Sec. 10(b) of the Act precludes the issuance of a complaint
based on allegations occurring more than 6 months before an
unfair labor practice charge is filed.)
Ryals testified that on one occasion in January 2010, he was
given a list of employees by Shaw and asked to state who was
for or against the Union. This too, was almost a year before
any of the instant charges were filed and is therefore outside the
10(b) period.
The evidence shows that since 2001, the wages and certain
conditions of employment for the Farmingdale employees have
been different from those of employees in the rest of the coun-
try. I surmise that this is because wages and benefits were fro-
zen for these employees while negotiations were ongoing.
The record suggests that since as far back as 2001, the Farm-
ingdale employees have received, on top of a basic wage scale,
some kind of supplemental “bonus” system that allows em-
ployees to earn extra money based on a type of productivity or
performance formula. The details of this were not explained.
There is some testimony by Ryals that when he arrived in New
York from Raleigh, he was told by the local manager that this
“bonus” system was to compensate the Farmingdale employees
because they were being paid at a lower rate than employees at
the other nonunion New York locations. This is the only evi-
dence on this point.
The testimony of Savino suggests that sometime in mid-
2008, management at corporate headquarters rolled out a new
bonus system that was applied to all nonunion facilities
throughout the United States. He testified that he had nothing
to do with the planning of this program and testified that he was
not all that familiar with its details. This was called the stack
rank bonus system.
General Counsel’s Exhibit 5 is a three page document issued
by the Company’s human resources department. At the top it
states: “DNS 2008 Stack Ranking Updated Incentive Program.
Effective Stack Rank Period 6/14/2008–7/11/2008.” In sub-
stance the document describes a system of monetary incentives
based on performance.
According to Savino, the program was started for the non-
union field service technicians on a trial basis in June 2008.
Thereafter, it was permanently implemented.
In General Counsel’s Exhibit 3, the parties stipulated that:

Dish Network Service LLC’s (“the Employer”) nonunion lo-
cations paid technicians until in or about the last week of Feb-
ruary 2011 additional money based upon their rank at the end
of each month as long as they fall within one of the three top
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402
levels in the stack rank system. The Employer’s Farmingdale
facility technicians are represented by the Communication
Workers of America Local 1108 and do not receive stack rank
compensation.

There is no evidence to show that after June 2008, any bo-
nuses or incentives provided to the employees at nonunionized
facilities were greater, the same, or lower than bonuses or in-
centives that were paid to the Farmingdale employees. Alt-
hough not shown in the record, I surmise that the Union was
not notified by the Company that the stack ranking system was
being implemented at its other locations. I also surmise that the
Company did not notify the Union that this system was not
being offered to the unionized employees at the Farmingdale
facility. Likewise, there is no evidence that once finding out
about the implementation of the new bonus system at non-
unionized facilities, the Union asked the Employer to imple-
ment or bargain about this system for the Farmingdale facility.
The General Counsel alleges that the new bonus system was
illegally withheld from the Farmingdale employees because
they were represented by the Union and was therefore discrimi-
natorily motivated. Although the new bonus system was im-
plemented at nonunion facilities and not applied to the Farm-
ingdale facility outside the statute of limitations Section 10(b)
period, the General Counsel argues that the failure to imple-
ment this bonus system at the Farmingdale facility is a continu-
ing violation. The Employer argues that the entire issue is
barred by Section 10(b) because the decision was made and
carried out in 2008.
D. Discussion
The question here is whether a company violates the Act
when it refuses to grant to unionized employees the same wag-
es or benefits that it grants to its nonunionized employees The
answer seems to be: It depends.
In Shell Oil, Co., 77 NLRB 1306, 1309 (1948), and cases
thereafter,7 the Board has stated that an employer is not re-
quired to afford represented and unrepresented employees the
same wages and benefits. The Board stated that unless the Gen-
eral Counsel has demonstrated that the withheld wage or bene-
fit was discriminatorily motivated, an employer may, as part of
a bargaining strategy, withhold from the union represented
employees a wage increase that was granted to its other non-
union employees.
In Arc Bridges, Inc., 355 NLRB 1222, 1223–1224 (2010),
the Board held that an employer violated the Act by withhold-
ing annual wage reviews and increases from newly unionized
employees while continuing them for nonunion employees at
the same facility. The Board held that as to both sets of em-
ployees, these annual wage reviews and increases were an es-
tablished condition of employment and therefore, the decision
to withhold them from the union employees was inherently
destructive of employee rights. The Board ordered the employ-
er to make the newly unionized employees whole by payment
to them of difference between their actual wages and the wages
granted to nonunion employees. The Board stated inter alia:

7 See, for example, Sun Transport Inc., 340 NLRB 70 (2003).
The Shell Oil cases applied by the judge stand for the
general proposition that the Act does not require employ-
ers to afford represented and unrepresented employees the
same wages and benefits. For example, an employer may,
as part of a bargaining strategy, withhold from represented
employees a wage increase granted to unrepresented em-
ployees, provided the withholding is not discriminatorily
motivated. The key fact in the Shell Oil cases, however, is
that the wages or benefits withheld from represented em-
ployees were new.
By contrast, where an employer withholds from its
represented employees an existing benefit (i.e., an estab-
lished condition of employment), the proper analytical
framework is found in NLRB v. Great Dane Trailers, Inc.,
388 U.S. 26 (1967). In those circumstances, the Board
will find that the unilateral withholding of an established
condition of employment from only the represented em-
ployees is “inherently destructive” of their Section 7
rights, even absent proof of antiunion motivation.6 See
United Aircraft Corp., 199 NLRB 658, 662 (1972), enfd.
in relevant part 490 F.2d 1105 (2d Cir. 1973); Eastern
Maine Medical Center, 253 NLRB 224, 242 (1980), enfd.
658 F.2d 1 (1st Cir. 1981). The key question, therefore, is
whether the June–July wage review process was, as the
judge found, an established condition of employment for
all of the Respondent’s employees, including those repre-
sented by the Union.
. . . .
The Respondent’s rationale is essentially an admission
that the represented employees did not receive the October
2007 across-the-board wage increase because they chose
union representation. Indeed, that choice, the Respondent
contends, is what permitted it to withhold the annual in-
crease and, in effect, take the position that the increase
would have to be negotiated back by the Union. Leaving
no room for doubt, the Respondent, in its answering brief,
echoes the judge’s characterization of its conduct as a “le-
gitimate bargaining strategy.” Board law, however, is
clearly to the contrary.

In Chevron Oil Co., 182 NLRB 445, 449–450 (1979), the
judge concluded that the employer violated the Act by telling
employees that they did not receive certain benefits because of
their representation by the union. He dismissed, however, the
allegations that the company engaged in bad-faith bargaining or
that it had violated the Act by withholding benefits that had, in
the past, been granted to unionized and nonunion employees
alike. The larger portion of the decision related to a reversal of
the judge’s conclusions that the company did not engage in
surface bargaining. (The Board concluded that despite meeting
with the union, the evidence showed that the employer engaged
in bargaining with no intention of reaching an agreement.) As
to the allegation that the employer violated Section 8(a)(1) and
(3) by withholding the benefits, the Board stated, inter alia:

The Trial Examiner dismissed the complaint’s 8(a)(1)
and (3) allegations predicated on Respondent's wage bene-
fit withholdings. In his view, Respondent's conduct
amounted to no more than an exertion of “economic pres-
DISH NETWORK SERVICE, LLC

403
sure at the bargaining table” which had neither the purpose
nor the effect of coercing employees in the exercise of
their bargaining rights or of discouraging their desire for
membership in the Union. In arriving at that conclusion,
the Trial Examiner, as his analysis of this issue shows,
evaluated Respondent's withholding action in isolation,
without relating it to Respondent’s unlawful course of
bargaining and to the 8(a)(1) violation that he found. In
this respect we believe the Trial Examiner erred, and
therefore erred, as well in the conclusion he reached.
Were it not for the unfair labor practice setting in
which the withholding action occurred, we would have
had no hesitancy in adopting the Trial Examiner’s finding.
It has long been an established Board principle that, in a
context of good-faith bargaining, and absent other proof of
unlawful motive, an employer is privileged to withhold
from organized employees wage increases granted to un-
organized employees or to condition their grant upon final
contract settlement. Shell Oil Co., 77 NLRB 130. As the
Supreme Court made clear in American Ship Building Co.
v. N.L.R.B., 380 U.S. 300, the Act accords employees no
right to insist upon their bargaining demands free from
economic disadvantages, and an employer’s use of eco-
nomic pressures solely for that reason alone.
. . . .
In our judgment, the record in this case establishes all
the elements necessary to support the complaint’s 8(a)(l)
and (3) allegations relating to the wage benefit withhold-
ings. Clearly there was discrimination in the sense of eco-
nomic injury, both because the unit employees were being
denied benefits granted others, and because they were be-
ing deprived of benefits they would have enjoyed had they
remained unrepresented. As the injury thus imposed was a
direct outgrowth of the employee's selection of the Union
and the Union’s frustrated effort to bargain on their behalf,
the discrimination had a natural tendency and foreseeable
effect of reducing employee desires for continued union
representation. We have already found that the withhold-
ing action may not in the circumstances of this case be
viewed as a “legitimate” use of economic pressure to ob-
tain a favorable contract. There remains, then, only the
question of unlawful motivation. We believe that this ele-
ment is adequately satisfied by the finding of Respondent's
unlawful bargaining, which the withholding served to im-
plement and of which it was part and parcel. But if more
specific proof of unlawful purposes in the withholding it-
self is deemed necessary, it is supplied by the findings
based on Kirkvold’s December 6, 1967 coercive state-
ments to employees to which we made reference above.

In Meredith Corp., 194 NLRB 588, 591 (1971), the Board
sustained the Judge’s dismissal of an allegation that an employ-
er violated Section 8(a)(3) by withholding a benefit to repre-
sented employees. In that case, the employer, while paying
nonrepresented employees for being sent home during a snow
storm, refused to make such payments to represented employ-
ees on the grounds that their wages and benefits were con-
trolled by the existing collective-bargaining agreement. In her
decision, Judge Josephine Klein stated:

The present case, on the other hand, involves a specific, iso-
lated instance of differentiation, not inherently discriminatory
on its face. Toffenetti, supra, illustrates the basic difference
between the “fund” cases and those, like the present, involv-
ing ad hoc differentiation. The published plan in Toffenetti
was held to be discriminatory on its face and thus violative of
the Act irrespective of the employer’s motivation. However,
in holding that the employer also violated Section 8(a)(3) by
withholding Christmas bonuses from its organized employ-
ees, the Examiner, affirmed by the Board, expressly found
that “the record herein clearly discloses Respondent’s anti-
union motivation for the disparate bonus payments by sub-
stantial evidence independent of the bonus payment alone.”
136 NLRB at 1168. Since the differentiation here involved
may very well be based solely on reasonable economic or
other nondiscriminatory considerations, it is entitled to a pre-
sumption of validity, the General Counsel shouldering his
usual initial burden of proof.

In the present case, there is no suggestion of union an-
imus on the part of Respondent. Indeed, Respondent and
the Union here involved have been bargaining for around
40 years. And Respondent has collective agreements cov-
ering 13 bargaining units in Des Moines and 11 in other
locations. There is no evidence that Respondent opposed
the unsuccessful attempt to organize its clerical employees
in Des Moines which led to an election in 1965. In Janu-
ary 1971, the time here involved, there were no organiza-
tional or bargaining activities in progress or in immediate
prospect.
Nor has the General Counsel presented any affirmative
evidence from which it could be found that Respondent's
decision was motivated by a desire to discourage union
membership. On the other hand, Respondent articulated a
sound basis for distinguishing generally between produc-
tion and clerical workers. Production lost when machines
are down is forever gone unless made up on other time;
much office work, such as that of switchboard operators
and receptionists need not and cannot be made up, and
other functions, such as typing and filing, can usually be
fitted in without extending other regularly scheduled work
time. The Examiner might well take official notice of
what Vice President Arnold referred to as the “inherent
difference” between clerical and production work which
would warrant a difference in the treatment of pay for time
not worked. [Footnotes omitted.]

The present case, in my opinion, falls somewhere between
the above cited cases.
Unlike the facts in Arc Bridges, Inc., supra, the bonus plan
introduced nationally by the Respondent and withheld from the
employees at unionized facilities was a new benefit and was not
an existing benefit that both union and nonunion employees had
previously enjoyed. As such, the facts here are more like those
in Shell Oil, supra, where the Board opined that the NLRA does
not require an employer to afford represented and unrepresent-
ed employees the same wages and benefits.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404
At the same time, the facts here are not like those in Mere-
dith Corp., supra where the benefit withheld was rather minor
and was essentially a one off event. In the present case the
bonus plan, even though not fully described, seems to me to be
a substantial condition of employment and was a transaction
that would affect the Farmingdale employees for years.
In my opinion, this case most closely resembles the facts in
Chevron Oil Co., supra. In that case, the Board held that by
withholding certain benefits to union represented employees
while granting those benefits to similarly situated nonunion
employees, the Employer violated Section 8(a)(3) and (1) of the
Act. The Board specifically noted, however, that this withhold-
ing of benefits occurred in a context where the Employer had
(a) simultaneously engaged in bad-faith bargaining and (b) that
its manager had told employees that they were not receiving the
benefit because they were represented by a union. (Assuming
arguendo that Sec. 10(b) would not bar this allegation.)
In my opinion a good argument can be made that the facts in
the present case are substantially similar to the facts in Chev-
ron. However, I also think that there are some important dis-
tinctions. Although the Respondent in the present case engaged
in surface bargaining, that bargaining took place in 2004. That
is about 4 years before the bonus system at issue here was put
into effect on a nationwide basis. The timing of the benefit’s
withholding was not coincident with the negotiations between
the Company and the Union and it therefore is not so likely that
“the injury thus imposed was a direct outgrowth of the employ-
ee’s selection of the Union and the Union’s frustrated effort to
bargain on their behalf.” Had the benefit’s withholding oc-
curred within a shorter time of the bad-faith bargaining, I would
reach a different result.
The fact that Respondent’s local manager, sometime in 2009,
told one employee (Ryals) that the Farmingdale employees
would receive the stack ranking bonus system if they were not
represented by the Union is not quite the same as the statements
made by a higher ranking manager of Chevron, who stated that
the employees were not getting the benefit because they were
represented by a union. For one thing, the stack ranking bonus
system was developed and implemented from the Respondent’s
headquarters. The local people in Long Island had nothing to
do with its design or the decision to put it into effect. For an-
other, the statement made to Ryals was, in essence, a true
statement of fact and does not necessarily prove that the reason
this new bonus system was withheld was in order to punish
employees because they selected the Union.
The fact is that since 2001, the Company has essentially fro-
zen wages and benefits at those facilities where it has been
required to bargain. And unless one wants to conclude, despite
the language in Shell Oil Co., that the withholding of any bene-
fit from unionized employees that has been given to nonunion
employees is inherently discriminatory in any circumstance, it
is hard for me to see that a violation of the Act has occurred in
this case.
Conclusions
For the reasons stated above, I conclude that the Respondent
has not violated the Act in any manner encompassed by the
complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The complaint is dismissed.

8 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.