Dish Network, LLC,
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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–
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, respectively, the General Counsel issued a complaint and notice of hearing on December 14, 2015, and an amended complaint on March 25, 2016, alleging that the Respondent violated Section 8(a)(1) of the Act by prohibiting 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 Party, 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 Relations Board makes the following
FINDINGS OF FACT
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 purchases 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 Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
ALLEGED UNFAIR LABOR PRACTICES
Since October 24, 2013, the Respondent has required all applicants for employment to sign and date its Arbitration 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 affiliates 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 acknowledged, 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 employment, whenever and wherever brought, shall be resolved 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 limited 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 binding, and judgment upon the arbitrator’s decision and/or award may be entered in any court of competent jurisdiction.
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 version of the Arbitration Agreement) at all of its nationwide 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 October 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 expectations of employees when dealing with the Respondent’s customers. On November 12, 2013, after being hired, Denney signed a copy of this policy.
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 provision.2 At the time of Denney’s suspension he was under 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 Arbitration Agreement signed by Denney. The filing describes the Respondent’s claim against Denney as one alleging “[c]onversion, unjust enrichment, and breach of contract.”
An employer violates Section 8(a)(1) if it maintains an arbitration policy that employees would reasonably believe interferes with their ability to file a Board charge or to access the Board’s processes. U-Haul Co. of California, 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 protected 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 maintenance of the Arbitration Agreement violates Section
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 infraction.
3 Denney was not disciplined for any communications with coworkers 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 prohibit 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, employment 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. . . recognized by . . . federal law or regulations” violated Section 8(a)(1) because employees reasonably would construe it to...
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