Dish Network, LLC

National Labor Relations Board - Administrative Judge Opinions

Mar 26, 2015

27-CA-131084 (N.L.R.B. Mar. 26, 2015)

JD(ATL)–06–15
Englewood, CO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
DISH NETWORK, LLC
and Case 27–CA–131084
DAVID RABB, an Individual
Todd Saveland, Esq.,
for the General Counsel.
Brian D. Baloneck and Christian Antkowiak, Esqs.
(Buchanan, Ingersoll & Rooney P.C.),
for the Respondent.
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
Respondent) 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
activities; and by maintaining an unlawful solicitation policy in its Employee Handbook.
On the entire record, including my observation of the demeanor 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 provided satellite television and other media services. Annually,
it purchases and receives at the Call Center goods valued in excess of $50,000 directly from

1 Unless otherwise stated, factual findings arise from joint exhibits, stipulations and undisputed evidence.
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2
points located outside of Colorado. It, as a result, admits, and I find, that it is an employer
engaged in commerce, within the meaning of Section 2(2), (6) and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
5
A. Introduction
Inside Sales Associates (ISAs) sell television, internet and telephone products over the
phone. Over 1000 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. 10
1. Call Center Hierarchy
Emily Evans is the General Manager. David Gass, an Inside Sales Manager, reports to
Evans. Gass oversees multiple Coaches, who supervise 15-person, ISA teams. 15
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 20
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 transferring into READY AUX
mode (i.e. call ready status).4 Sales calls, on average, range from 15 and 30 minutes. Once a call 25
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 30
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 35
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 Violations40
The Integrity Policy divides call protocol breaches into these categories (Tier violations):

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.
4 ISAs, periodically, attend a Coach-led, team meeting before entering READY AUX, if call volume permits.
5 AUX usage does not affect an ISA’s compensation, which is primarily based upon their sales metrics.
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Category Discipline Examples
Tier 1 Up to termination Lesser violations (e.g. not offering internet and delaying installation).
Tier 2 Up to termination 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 Review Minor offenses (e.g. misreading disclosures and not offering DVR
services).
(GC Exh. 5).
2. Incentive Plan and Charge Back System5
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.).
10
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) 15
investigates ISAs, who are “red-flagged” (e.g. possess high cancellation rates).
C. Rabb’s Tenure
Rabb, an ISA, worked at the Call Center from 2012 until his March 7 firing. He had 20
several Coaches, including Barry Appelhans, his last supervisor. His wages were sporadically
docked for Tier violations, which prompted his multiple workplace grievances.7
1. Concerted Complaints about Tier Policy
25
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 matters. (GC Exh. 12). Evans recalled 30
Rabb’s complaints, even his audacious accusation that Dish was “stealing.” (Tr. 336).

6 All dates are in 2014, unless otherwise stated.
7 He estimated that he lost commissions for Tier violations on 20 occasions. See, e.g., (GC Exhs. 7–8; R.
Exh. 18).
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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 5
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
10
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
estimated that, thereafter, he solicited 15 coworkers to join this suit.
2. February 18: Final Warning Under Solicitation Policy15
a. Solicitation Policy
The Employee Handbook provides as follows:
20
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 reason during work time or in work areas except as specifically authorized 25
in advance by a vice president or higher. Employees 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).
30
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. 35
Soliciting employees … during work time and in work areas is a clear violation of
the … Solicitation in the Workplace [policy] in the Employee Handbook ....
This disciplinary action is not being taken for discussing wages or terms and
conditions of employment with coworkers, rather for violating company policy.40
(GC Exh. 15). Rabb admitted soliciting, but, averred that he did so during non-work time.8

8 He acknowledged that he might have solicited his coworkers on the work floor.
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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.
5
3. March 7: Termination
a. Termination Notification
On March 7, Coach Appelhans9 issued Rabb this Termination Notification:10
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] …
informed [Rabb] … that he had logged him out of his computer .... because he 15
was using coaching AUX to go to the restroom, and … it is wrong to do so….
[Appelhans stated] that he should use … break time ….
Upon further investigation [Appelhans] … found other similar punches, each
approximately 8 min long …. on … February 24 … and … 25 …. 20
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 completed
sale on his computer screen with an account number already generated …. 25
[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 ….
30
(GC Exh. 18).10 Rabb replied, in writing, that, “[g]oing to restroom during sale – ongoing
behavior – known to all four (4) coaches – no such counseling or verbal warnings.” (Id.).
b. Rabb’s Assertions
35
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 account
number and complete paperwork. He testified that he 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 40
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,

9 Appelhans was terminated in August 2014.
10 Appelhans did not testify; Dish also did not offer exhibits showing Rabb’s February COACHING AUX
usage.
11 He estimated that, of his roughly 3000 sales, he engaged in this practice 1500 times, without discipline.
JD(ATL)–06–15
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without consequence.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 became 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 5
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.
10
Raymond Best, a former ISA,13 testified that he was supervised 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 usage 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. 15
Ann Tallman, a former ISA,15 stated that, in 2013, she reported 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.
20
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 25
silent hold to use the restroom. 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 never
heard of someone being disciplined for placing a customer on silent hold.
30
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
worried that he needed their help, and Gass was dispatched. She added that Appelhans was not 35
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

12 He explained that he openly stated to them that he was “generating 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.
17 Rabb’s desk was elevated due to an accommodation, which further facilitated the observation of this light.
JD(ATL)–06–15
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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 prohibited.19 (GC Exh. 19; R. Exhs. 15, 27–28). She 5
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
contradictorily 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).10
Gass testified that Appelhans saw Rabb leave his desk, while a caller was on hold, and he
was sent to investigate. He estimated 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.
15
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 20
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
25
This chart summarizes Termination Notifications issued at the Call Center for what Dish
globally classified as “call avoidance” issues, which were akin to Rabb’s transgression:
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 occasions ranging
from 5 to 15 minutes each, willful misinformation to customers on 4 occasions
regarding equipment and pricing , and creating false account (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 listen 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).

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 disciplined for exceeding the BREAK AUX
cap.
21 No evidence was presented, which demonstrated that he was disciplined for exceeding the BREAK AUX
cap.
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Date Employee Summary of Discharge Events
Aug. 2013 P. Williams 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 number 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 Integrity).
Dec. 2013 E. Nielsen Placing 30 calls to same number, without leaving a message (caught by QA).
Sep. 2014 K. Warrick Staying on a call without a customer for 49 minutes (caught by QA)
(R. Exhs. 5–14; Tr. 372–375).
e. Findings
5
Although most of the relevant facts are undisputed, several key matters remain contested,
and require a credibility resolution. These issues regard: Rabb’s past practice of using silent hold
for restroom breaks; his Coaches’ awareness and acceptance 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.10
(i.) Rabb’s Silent Hold Practices and Management’s Awareness
Rabb’s testimony that, prior to his firing, he openly and routinely used silent hold for
restroom breaks with his Coaches’ knowledge, and without disciplinary consequence, was highly 15
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
testimony 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
prohibited.23 Moreover, Rabb’s contention that his silent hold practices were tolerated was 20
corroborated by other witnesses. Tallman and Welle, who possessed highly credible demeanors,
stated that they use silent hold to use the restroom, have consistently 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 25
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

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 occasions 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.
JD(ATL)–06–15
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conspicuous lack of discipline regarding silent hold usage further demonstrates Dish’s
evisceration of its own rule.
(ii.) Good Faith
5
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 practices, as a mechanism to jettison a perceived malcontent. First, I 10
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
implausible that management would have spontaneously withdrawn from a closed door meeting
to assist an ISA, who was not obviously seeking assistance. Moreover, if Rabb, who is quite
outspoken, required assistance, his request would have been unmistakable. Third, if Gass truly 15
wanted to help Rabb, he would have, instead, located him, instead of waiting at his desk.
Fourth, if Evans truly had benevolent intentions regarding 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 20
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 25
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 gainfully employed.29
Evans conceded that some ISAs exceed their break time, and, surprisingly, described this 30
scenario as “common,” 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
35
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.

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.
26 Out of the 48 ISAs listed, 21 exceeded their BREAK AUX allotment (i.e. 44 percent).
27 Story was ultimately terminated, although the record fails to describe the basis.
28 ISA Blankly remains employed.
29 ISAs Chaney, Hughes, Paris and Pearce provide examples. (Tr. 386).
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III. ANALYSIS
A. Solicitation Policy
The Solicitation in the Workplace policy is unlawful.30 In determining whether the 5
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 solicitation ... during
nonworking times or in nonworking areas.” Restaurant Corp. of America v. NLRB, 10
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 managerial approval prior to engaging in
Section 7 activity. Brunswick Corp., 282 NLRB 794, 795 (1987).15
The Solicitation in the Workplace policy is unlawful. Its 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., supra.20
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).3125
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,30
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 individual’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 35
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 solicited 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.
40

30 This allegation is listed under complaint pars. 4 and 6.
31 These allegations are listed under pars. 5 and 6 of the complaint.
32 See also The Loft, 277 NLRB 1444, 465 (1986) (single employee’s complaint about employer’s handling of
problem is concerted activity); Richboro Community Mental Health Council, 242 NLRB 1267 (1979).
JD(ATL)–06–15
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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:
5
Discipline imposed pursuant to an unlawfully overbroad rule violates the Act in
those situations in which an employee violated the rule by (1) engaging in
protected conduct or (2) engaging in conduct that otherwise implicates the
concerns underlying Section 7 of the Act. Nevertheless, an employer will avoid
liability for discipline imposed pursuant to an overbroad rule if it can establish 10
that the employee's conduct actually interfered with the employee's own work or
that of other employees 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 employer's burden, not only to assert this
affirmative defense, but also to establish that the employee's interference with 15
production 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 discipline, the
employer must demonstrate that it cited the employee's interference with 20
production and not simply the violation of the overbroad rule.
The Continental Group, Inc., 357 NLRB No. 39, slip op. at 6 (2011) (citations omitted).
Rabb received discipline under the unlawful Solicitation in the Workplace policy for 25
engaging in protected concerted activity (i.e. soliciting coworkers to join his lawsuit challenging
wage policy). Dish made no showing that his activities interfered with his own work, the work
of others, or Call Center operations. His final warning was, accordingly, unlawful.
3. March 7, 2014: Termination30
Rabb’s termination was unlawful. In assessing whether a discharge is unlawful, the
Board applies a mixed motive analysis, which is set out in Wright Line, 251 NLRB 1083 (1980),
enfd. on other grounds 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). Under Wright Line, the 35
General Counsel must first demonstrate, by a preponderance 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 burden, the burden shifts
to the employer to prove that it would have taken the adverse action, even absent the protected 40
activity. See, e.g., Mesker Door, 357 NLRB No. 59, slip op. at 2 (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 No. 93, slip op. at 3–4 (2011). If the employer’s
proffered reasons are pretextual (i.e., either false or not actually relied on), the employer fails by 45
definition to show that it would have taken the same action for those reasons regardless of the
JD(ATL)–06–15
13
protected conduct. Metropolitan Transportation Services, 351 NLRB 657, 659 (2007).
a. Prima Facie Case
The General Counsel made a prima facie Wright Line showing. As noted, Rabb engaged 5
in protected activity, which Dish was admittedly aware of. Evans bore animus against such
activity, 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 complaint 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). 10
b. Affirmative Defense
Dish failed to show that it would have terminated Rabb, absent his protected activity.
First, he had a longstanding practice of placing customers on silent hold to use the restroom, 15
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 disciplinary examples
suggests invidious intent (i.e. the clear absence of discharges for placing callers on silent hold).34
Third, given that other ISAs routinely exceed their BREAK AUX allotment without disciplinary 20
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 restroom.36 25
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 motivated to remove Rabb; the only plausible explanation for this malicious intent
was retaliation for his protected activity. Lastly, as noted, the close timing between his firing and 30
escalation of his protected activity further supports discrimination. In sum, the above-described
factors independently, and collectively, show that Dish would not have fired Rabb, absent his
protected activity.

33 Moreover, if Rabb’s actions were truly verboten, Dish would address 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
demonstrated an ISA, other than Rabb, being fired for solely placing a caller on silent hold. Given that the
record reveals that this activity is somewhat 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.
JD(ATL)–06–15
14
Conclusions of Law
1. Dish is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
5
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 solicitations.
3. Dish violated Section 8(a)(1) of the Act by issuing Rabb a final warning, and later10
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.
15
Remedy
Having found that Dish committed unfair labor practices, it is ordered to cease and desist
and to take certain affirmative action designed to effectuate the 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 20
facilities where the unlawful policy has been, or is, in effect.37 See Longs Drug Stores
California, 347 NLRB 500, 501 (2006); Guardsmark LLC, 344 NLRB 809, 812 (2005). Its duty
to rescind or modify the unlawful policy is governed by Guardsmark LLC, supra.38
Dish, having unlawfully discharged Rabb, must offer him reinstatement and make 25
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
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). Dish shall 30
expunge from its records any references to his final warning and discharge, provide
written notice of such expunction, 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 35
calendar quarter(s). Don Chavas, LLC, d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014).

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 adhesive
backing which will cover the old and unlawfully broad rules, until it republishes the handbook without the
unlawful provisions. Thereafter, 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.
JD(ATL)–06–15
15
Dish shall nationally distribute remedial notices electronically 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 No. 9 (2010).
5
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended39
ORDER
10
Dish Network, LLC, Englewood, Colorado, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
15
a. Maintaining a Solicitation in the Workplace policy in its Employee
Handbook, which bans solicitation occurring in working areas during nonworking time, and
requires management’s approval prior to engaging in such solicitations.
b. Issuing employees final warnings, terminations or other discipline because 20
its employees have engaged in protected concerted activities.
c. In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
25
2. Take the following affirmative action necessary to effectuate 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 solicitation occurring in working areas during 30
nonworking time, and required management’s approval prior to engaging in solicitation.
b. Furnish all current employees with inserts for the Employee Handbook
that
35
1. Advise that the unlawful rule has been rescinded, or
2. Provide the language of lawful rule or publish and distribute a
revised Employee Handbook that
i. Does not contain the unlawful rule, or40
ii. Provides the language of lawful rule.
c. Within 14 days from the date of the Board’s Order, offer David Rabb his

39 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 purposes.
JD(ATL)–06–15
16
former job or, if such job no longer exists, offer him a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges 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.5
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).
10
f. Within 14 days from the date of the Board’s Order, remove 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.
15
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 designated by
the Board or its agents, all payroll records, social security payment records, 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.20
h. Within 14 days after service by the Region, post at each of its facilities in
the United States, where its Employee Handbook is in effect, copies of the attached notice,
marked “Appendix.”40 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 25
the Respondent and maintained for 60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed 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 30
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, 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.
35
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.
40
Dated Washington, D.C. March 26, 2015

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.”
JD(ATL)–06–15
17
_________________________________
Robert A. Ringler
Administrative Law Judge5
JD(ATL)–06–15
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 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT maintain provisions in our Employee Handbook, which prohibit employees
from soliciting in work areas during nonwork time, and require management’s approval before
soliciting.
WE WILL NOT fire you, issue final warnings, or otherwise discriminate 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, restrain, 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 working
areas during nonworking time, and requires management’s approval prior to soliciting.
WE WILL furnish all of you with inserts for the current Employee Handbook that:
1. Advise that the unlawful provision, above has been rescinded, 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 previously enjoyed.
JD(ATL)–06–15
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
(Employer)
Dated: ________________ By: ________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
600 17th Street, 7th Floor, North Tower, Denver, CO 80202-5433
(303) 844-3551, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’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 Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (303) 844-6647.