Star West Satellite, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 11, 2015

19-CA-133107 (N.L.R.B. Sep. 11, 2015)

JD–51–15
Washington, ID and MT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
STAR WEST SATELLITE, INC.
and Cases 19–CA–133107
19–CA–135489
19–CA–144419
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 206,
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO
Ryan Connolly, Esq., for the General Counsel.
David J. Laurent, Esq., (Buchanan Ingersoll Rooney, PC),
Pittsburgh, Pennsylvania and
Jean E. Faure, Esq., (Faure Holden) Great Falls, Montana,
for the Respondent.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Boise, Idaho on
June 9-10, 2015 and in Bozeman, Montana on June 30 and July 1, 2015. The Union, IBEW
Local 206, filed the charges in this matter on July 18, and August 26, 2014 and January 14, 2015.
The General Counsel issued the most recent version of the complaint on April 28, 2015.
The General Counsel alleges that Respondent violated Section 8(a)(5) and (1) by
unilaterally changing the work schedules of its employees in Nampa, Idaho.1 More specifically,
the General Counsel alleges that Respondent had a practice of guaranteeing certain employees
specific days off of work, which it changed in July 2015 without providing the Union notice and
an opportunity to bargain.
The General Counsel also alleges that Respondent violated Section 8(a)(5) and (1) in
placing employee Tye Thomas on unpaid administrative leave on August 12, 2014 and putting
John Davis on unpaid administrative leave on December 12, 2014. The General Counsel alleges
that Respondent violated Section 8(a)(3) and (1) in putting these two employees on
administrative leave and then discharging Thomas on August 22, 2014 and constructively
discharging Davis on January 8, 2015.

1 Nampa is near Boise.
JD–51–15
2
Finally, the General Counsel alleges that Respondent violated Section 8(a)(5) and (1) by
making unilateral changes in employees’ working conditions in July 2014. The first change was
requiring employees to request non-consecutive days off on separate forms. The second change
was requiring 14 days of advance notice of leave even for previously guaranteed days off.
5
On the entire record,2 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
10
I. JURISDICTION
Respondent, whose corporate office is in Montana, installs and services satellite
television and internet systems under contract with the Dish Network. It operates in Washington,
Idaho and Montana and has gross annual revenues in excess of $500,000. Respondent performs 15
services valued at more than $50,000 outside of Montana. Respondent 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
and that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES20
Prior Litigation
The Union was certified as the exclusive collective bargaining representative of
Respondent’s technicians and warehouse employees on December 15, 2011. On May 23, 2012, 25
the Board issued a decision finding that Respondent had been in violation of Section 8(a)(5) and
(1) for refusing to bargain with the Union since January 5, 2012. The Board ordered Respondent
to bargain with the Union, Star West Satellite, 358 NLRB No. 44 (2012). While there has been
bargaining, the parties have not agreed to terms of a collective bargaining agreement.
30
In the summer of 2013, the same parties litigated an unfair labor practice case before
Administrative Law Judge Gregory Meyerson. Judge Meyerson issued his decision on
November 4, 2013 (JD(SF) -51-13). On December 2, 2013, the Board granted the parties’ joint
motion to adopt the Judge’s Decision and Recommendation to the Board. Thus, the Board
adopted Judge Meyerson’s findings and conclusions.35
Judge Meyerson:
Dismissed a complaint allegation that Respondent made an illegal unilateral change with
regard to the use of subcontractors to supplement the in-house work force; 40

2 Tr. 34, line 24 should read Laurent, not Connolly. In volume 4 (July 1, 2015) the names of
Respondent’s counsel Laurent and the General Counsel’s attorney Connolly are mixed up throughout the
transcript.
Tr. 392, line 25 should read convincing rather than condensing.
JD–51–15
3
Found that Respondent violated Section 8(a)(5) and (1) in unilaterally requiring
technicians to wear hard hats and safety glasses, and requiring warehouse employees to wear a
back brace;
Found that Respondent violated Section 8(a)(5) and (1) in unilaterally changing 5
employees’ pay dates (to a Wednesday, instead of the previous Friday);
Found that Respondent violated Section 8(a)(5) and (1) in unilaterally changing the way
remote technicians (those working out of their homes) were compensated for travel from their
homes to one of Respondent’s offices to attend mandatory meetings or to pick up supplies;10
Dismissed an allegation that Respondent violated the Act in making out of town
assignments to its Clarkston, Washington office mandatory. Judge Meyerson found that the
General Counsel failed to prove that Respondent made such assignments mandatory;
15
Dismissed allegations that Respondent changed its overtime policies in the Clarkson,
Washington office, or any other office;
Found that Respondent violated Section 8(a)(5) and (1) in changing its policy as to the
type of work boots employees were required to wear;20
Found that Respondent violated Section 8(a)(5) and (1) in implementing a new customer
survey policy. This new policy required technicians to call Respondent’s dispatch office so that
the customer could complete a satisfaction survey before the technician left the customer’s
premises.25
Found that Respondent violated Section 8(a)(5) and (1) in changing its health insurance
plan without giving the Union notice and an opportunity to bargain. The new plan had
significantly higher deductibles and different out-of-pocket costs.
30
Found that Respondent violated Section 8(a)(5) and (1) in implementing a more rigid pre-
trip process at its Nampa, Idaho facility. The new process did not add tasks but mandated the
time period in which these tasks were to be completed.
Dismissed an allegation that Respondent violated Section 8(a)(5) and (1) by changing the 35
work schedule and terminating technician Joseph Severson. Severson, who worked out of
Respondent’s Helena, Montana office, had been promised that he would not have to work
Tuesdays through Thursdays to accommodate his wife’s work schedule and take care of his
children. At some point Severson agreed to work Tuesdays, so long as he could leave work by
2:00 p.m. Later, Respondent required Severson to work past 2:00 p.m. on Tuesdays. Judge 40
Meyerson found that Respondent had a past practice of requiring flexibility on the part of its
technicians and thus did not violate the At by requiring Severson to work past 2:00 on Tuesday.
As noted later, Respondent claims this finding is collateral estoppel with regard to some of the
issues in the instant case.
45
Found that Respondent violated Section 8(a)(5) and (1) in unilaterally eliminating its
401(k) plan.
JD–51–15
4
Found that Respondent violated Section 8(a)(5) and (1) in disciplining employees
without consulting and negotiating with the Union. The Judge relied on Alan Ritchey, Inc., 359
NLRB No. 40 (2012). That decision was rendered invalid by the U.S. Supreme Court due to the
composition of the Board at the time it was issued.
5
Found that Respondent violated Section 8(a)(5) and (1) in briefly instituting a policy at
its Kalispell, Montana facility whereby employees were required to work on their days off if told
to do so.
Dismissed an allegation that Respondent violated Section 8(a)(5) and (1) by unilaterally 10
reducing its technicians from a four-day work week to a three-day work week. Judge Meyerson
(and thus the Board) found this change was consistent with Respondent’s past practice, which
was to go back and forth between a 3 and 4-day work week depending on its volume of business.
Found that Respondent violated Section 8(a)(5) and (1) by announcing a new policy 15
unilaterally whereby employees would be required to purchase their own straps and locks to
immobilize their ladders when not in use. Judge Meyerson noted that the announcement of the
new policy violated the Act even though Respondent may not have implemented it.
Found that Respondent violated Section 8(a)(5) and (1) in failing to provide the Union 20
relevant information it requested for 9 months.
The Instant case
Schedule changes at the Nampa, Idaho facility25
Prior to July 2014, several technicians at Respondent’s Nampa facility had been allowed
certain days off due to child custody and/or visitation situations. Timothy Seitz had been
allowed Fridays and Saturdays off since he was hired in August 2010. Levi Billman had been
allowed Sundays and Mondays off since he was hired in October 2013. Tye Thomas had been 30
allowed Fridays and Saturdays off since 2009.
For several years the work week for Respondent’s technicians varied from a 3 to a 4 to a
5 day work week, depending on Respondent’s work load. The length of Respondent’s work
week was dictated by the number of orders for installation/service work Respondent received 35
from the Dish Network. Respondent supplemented its workforce by hiring contract
installers/servicemen when the volume of orders from Dish was greater than it could
accommodate with its employees. There were a number of contract installers/servicemen who
worked for Respondent on a regular basis.
40
Respondent’s work load varies according to the day of week and also the time of year.
Saturdays and Sundays are busier than the middle of the week. The run-up to the football
season is busier, for example, than the period around the IRS tax filing date of April 15.
On about July 7, 2014, Mike Ward, the office manager at the Nampa facility, announced 45
that technicians would not automatically be exempt from working both weekend days.
Respondent did not notify the Union of this change. Several employees, including Billman,
JD–51–15
5
Thomas and Seitz, objected to Ward and then contacted the Union. They and technician Chad
Davis went on strike to protest the change on Saturday, July 19, and Sunday, July 20, 2014. The
strikers reported to work on Monday, July 21 and were put back on a schedule within 48 hours.3
A group of employees met with Derek Bieri, an operations manager, on about August 1. 5
At this meeting several objected to the changes which had not made accommodation for their
child care situations. During this meeting Bieri stated that Respondent would try to
accommodate the employees’ needs when it was able to hire additional technicians. At one
point, Bieri told Levi Billman in effect that if he did not like Respondent’s policies he could
quit.410
Respondent rescinded the schedules that required the 4 employees to work both weekend
days on August 7, 2014, R. Exh. 5, page 558-7. By that time Billman had resigned. Seitz
resigned in November 2014.
15
Alleged illegal unilateral change regarding time-off requests (complaint paragraphs 9(b)
and 12)
In July 2014 Respondent posted a notice that, among other things, stated that all requests
for time off had to submitted 14 days in advance and that this requirement applied to time off on 20
days for which the employee had been guaranteed that he or she would not work. Respondent
had not applied the 14 day policy to guaranteed days off previously. The notice also stated that
employees submitting leave requests for non-consecutive days would have to do so on separate
forms.
25
Suspension and Discharge of Tye Thomas
In early August 2014 work slowed in Nampa and increased at Respondent’s Bozeman,
Montana facility. Tye Thomas, one of the employees who went on strike on July 19 and 20,
volunteered to work temporarily in Bozeman. 30
Thomas, had worked for Respondent for five years by this time. According to Mike
Ward, the business manager in Nampa, in an email sent to operations managers Parker Estes and
Mike Escott on August 13, 2014 [after Thomas had been suspended]:
35
Tye’s work performance in Nampa was quite good. He had good CSAT’s, low
repairs and very good SHS numbers. He was with the company for many years and knew
all our processes and procedures. He often made recommendations for improvements
and changes in them. He would always help new Techs when they encountered issues
even when he had significant work himself.40

3 The General Counsel does not allege that Respondent violated the Act in failing to put the strikers
on the work schedule immediately when they came to Respondent’s Nampa shop on July 21.
4 Bieri said that Billman knew were the door was located.
JD–51–15
6
Tye did have one significant shortcoming though. He was often overly out
spoken and contentious. His opinions although valued were often sarcastic and delivered
in an argumentative fashion. He would become difficult to deal with any time he had
strongly felt opinions and required management to intercede and redirect him. He
required more oversight than most employees in that regard.5
R. Exh. 6.
There is no evidence that Respondent’s president, Pete Sobrepena, who testified that he
made the decision to fire Thomas, saw this email, or that if he did, that he gave it any 10
consideration.
Respondent suspended and then discharged Thomas as the result of events that occurred
in Bozeman on August 11 and 12.
15
Respondent’s Bozeman Field Service Manager, Marcus Kunda, testified that he presented
Thomas with a diagram entitled Large Truck Configuration on 3 occasions, and directed him to
comply with it.5 That diagram, Jt. Exh. 3, page 16, indicates what equipment should be carried
in the truck and how it should be arranged in the storage compartment of the vehicle. Kunda
testified that he did this on the morning of August 11, the morning of August 12 and the evening 20
of August 12. Thomas refused to do so on each occasion.6 Thomas told Kunda at least once
that to load his truck as directed would place too much weight on it.7
Thomas denies that Kunda spoke to him about the manner of loading the truck until August 12.
This is relevant in determining whether Respondent’s insistence on Thomas loading his truck as directed,25
is related to an August 12 conversation about the Union that both Thomas and Kunda testified to. Union
Business Manager James Holbrook’s email of August 22, Jt. Exh. 3, p. 14, leads me to credit Kunda’s
testimony that he initially approached Thomas about the loading of his truck on August 11, before
Thomas spoke to him about the Union.
30
Due to the fact that Thomas objected to the weight of the load he was directed to carry, it is
evident that the dispute with Kunda was over the amount of supplies Thomas was to carry as well as how
they were to be arranged in his truck.
After the conversation of August 11, Thomas went out on his route and was unable to 35
complete a job immediately because he did not have the proper kind of modem.
On the morning of August 12, Thomas asked Kunda what he thought about the Union.
After being rebuffed by Kunda, Thomas continued to speak about the Union to other technicians.
Thomas testified that during his discussion with Kunda about the Union and related issues, 40

5 There is a different diagram for smaller trucks.
6 Thomas testified that on the evening of August 12, Kunda brought him the diagram and told him
that he needed to reconsider his refusal to load his truck in accordance with it, Tr. 116. While Thomas
did not testify that he refused, he testified that he responded, “who wants me to do this?” I consider that
tantamount to a refusal.
7 Some of Respondent’s technicians drive trucks owned by Respondent; others drive their own trucks
and are compensated for doing so. Thomas drove a company truck for a couple of years and then
switched to driving his own.
JD–51–15
7
Kunda became very agitated, Tr. 107. Kunda did not specifically deny this. He merely testified
that he told Thomas that he did not want to talk about the Union. Given the specificity of
Thomas’ account compared to that of Kunda, I credit Thomas.
On the evening of August 12, Kunda again directed Thomas to load his truck in 5
accordance with the diagram for a standard load. Thomas again refused. Kunda then reported
this to Operational Managers Parker Estes and Mike Escott. Estes and Escott informed Thomas
that he should unload Respondent’s property from his truck and return to Nampa.8
Respondent suspended Thomas for 10 days. Then on August 22, Pete Sobrepena, 10
President and 100% owner of Star West, discharged Thomas for insubordination.9
Legal Analysis with regard to Thomas’ termination
In order to prove a violation of Section 8(a)(3) and (1), the General Counsel must show 15
that union activity or other protected activity has been a substantial factor in the employer’s
adverse personnel decision. To establish discriminatory motivation, the General Counsel must
show union or protected concerted activity, employer knowledge of that activity, animus or
hostility towards that activity and an adverse personnel action caused by such animus or
hostility. Inferences of knowledge, animus and discriminatory motivation may be drawn from 20
circumstantial evidence as well from direct evidence.10 Once the General Counsel has made an
initial showing of discrimination, the burden of persuasion shifts to the employer to prove its
affirmative defense that it would have taken the same action even if the employee had not
engaged in protected activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir.
1981).25
There is no question that Tye Thomas engaged in Union activity and that Respondent was
aware of that activity. I infer animus both on the basis of Thomas’ testimony regarding his
August 12 conversation with Marcus Kunda and the circumstances of his participation in the July
strike at Nampa. Although there is no direct evidence on this point, I infer animus toward 30
Thomas as a result of the strike. The change in schedules was made, I also infer, due to a
shortage of available technicians on the weekends. The strike could only have exacerbated this
shortage and made it much more difficult for Respondent to fulfill its obligations to Dish on the
weekend in question.
35

8 Thomas testified that on August 12, his response to Kunda was, “who wants me to do this Parker?”
Then Parker Estes appeared from behind some shelves and fired him. Estes testified that he was
instructed to send Thomas back to Nampa, nothing more, and that is what he did. I find no reason to
credit Thomas’ account, as opposed to that of Estes. I find that Estes did not fire Thomas. I credit Pete
Sobrepena’s testimony that he made the termination decision.
9 Kunda testified that on the morning of August 12, he asked Thomas to load his truck with
the full load carried by other Bozeman technicians for the second time. Thomas refused to do so.
Kunda testified that he then called Parker Estes, who was then his superior. He said Estes
instructed him to ask Thomas to comply once more time and that if Thomas refused to let him
know.
10 Flowers Baking Company, Inc., 240 NLRB 870, 871 (1979); Washington Nursing Home, Inc., 321
NLRB 366, 375 (1966); W. F. Bolin Co. v. NLRB, 70 F. 3d 863 (6th Cir. 1995).
JD–51–15
8
Nevertheless, I find that the General Counsel has not met his burden of proving that
Thomas’ discharge was motivated by Respondent’s anti-union animus. I do so because Thomas’
refusal to comply with Kunda’s directives as to how to load his truck negates any nexus between
the company’s anti-union animus and Thomas’ discharge. Moreover, assuming that the General
Counsel made out his initial showing of discrimination, I find that Respondent met its burden of 5
proving its affirmative defense, i.e., that it would have fired Thomas for insubordination even if
he had not engaged in protected activities.
Kunda testified that the truck loading requirements in Jt. Exh. 3, page 16, are a corporate
wide policy, Tr. 290-295, R. Exh. 10. However, the evidence strongly indicates that this policy 10
was not uniformly enforced throughout the company. Erik Bohn, a field service manager,
testified that Cory Clark, the warehouse manager at Nampa, determines what equipment a
technician must take each day. Bohn testified further that on several occasions Clark complained
that Thomas was refusing to take equipment that was being added to his route. Bohn would
then intercede and Thomas would comply with the request. If the Nampa warehouse was strictly 15
following the diagram that Kunda presented to Thomas on August 11 and 12, there would be no
need for Clark to make the daily determinations testified to by Bohn.
Thomas’ testimony at Tr. 131-32 also indicates that the requirements set forth on the
Large Truck diagram were not strictly enforced at Nampa. This testimony, which is 20
uncontradicted is that after having the front end of his truck rebuilt, Thomas refused to load his
truck according to those specifications. I infer that management at Nampa did not force him to
do so. Thus, I find the diagram and loading requirements set forth in Jt. Exh. 3, page 16 are not
uniformly enforced at least not at the Nampa warehouse.
25
However, there is no evidence that these requirements were not uniformly enforced at the
Bozeman warehouse. There is no evidence that Thomas was being treated disparately when
Kunda told him he must follow those requirements.11 Kunda credibly testified that Respondent
has legitimate business reasons for making these loading requirements mandatory. Occasionally
or even frequently, a technician in the field may be asked to do a service call in addition to those 30
put on his or her schedule in the morning. Having the mandated load will often obviate the need
of travelling to get another part, or sending a technician, other than the closest one, to service the
new call. Thus, I find that the General Counsel’s characterization of what occurred on August 12
as a minor disagreement blown out of proportion, to be unjustified. Thomas was in fact
insubordinate in refusing to comply with Kunda’s instructions.35
Despite the fact that Thomas was insubordinate, there are some troubling aspects to
Thomas’ termination. The first of these is that Kunda did not warn Thomas of the potential
consequences of failing to comply with his instructions. The second is that Pete Sobrepena
appears not to have given any consideration to the fact that, according to his business manager at 40
Nampa, Thomas had been an excellent employee for 5 years. Nevertheless, on the basis on the

11 The General Counsel argues that Respondent’s affirmative defense fails because it introduced no
evidence that the requirements applied to Thomas were applied to other technicians who drove their own
trucks, as opposed to company-owned trucks. The General Counsel also states that this defense fails
because Respondent introduced no evidence of comparable discipline. The General Counsel has the
burden of proof on these matters reversed. It is his burden to prove disparate treatment, not Respondent’s
to disprove it, Superior Container, Inc., 276 NLRB 532 (1985).
JD–51–15
9
facts set forth above I cannot conclude that Thomas was discharged due to the Respondent’s
animus towards his protected activity.12
Suspension and Alleged Constructive Discharge of John Davis
5
Respondent hired John Davis in December 2012. He worked out of his home in Butte,
Montana, but was assigned to the Bozeman, Montana warehouse. In mid-2014, Davis began
reporting to the management of the Helena warehouse. On about November 1, 2014, Davis
sustained an on-the-job injury when he fell in a crawlspace. He was placed on light duty until
December 4, 2014.10
Davis’ testimony about his union activity prior to his suspension strikes me as
unexceptional. Two of Respondent’s agents who, according to Davis, were aware of his union
activity, Multana Al Rubane and Jeff Jones, appear to have left Respondent’s employ by
December 2014. He testified to an adversarial discussion with Mike Escott, an operations 15
manager, who was still employed by Star West in December 2014. This discussion occurred in
2014 and was about insurance. According to Davis, Escott said something to the effect that
Respondent was not a union company and the Union could only request a change in employees’
insurance. Although this testimony does not make complete sense on its face, I find that Davis
did discuss insurance and the Board’s 2013 Order with Escott, who did not testify in this 20
proceeding. The Board Order found that Star West had violated Section 8(a)(5) by unilaterally
changing its health insurance plan.
On December 9, 2014, Davis was installing Dish equipment at a private residence in
Bozeman. Marcus Kunda, the Bozeman warehouse manager, showed up at his worksite. Kunda25
did not assume responsibility for the Helena warehouse until December 26.
Davis’ account of what transpired and Kunda’s account vary greatly. Davis testified that
he had finished his job and was preparing the “educate” the customer, which is why he was not
wearing safety glasses and a hardhat. He also testified that he had already returned the orange 30
safety cones from the front of the vehicle to the trunk. Kunda testified that the installation was
not complete. Moreover, Kunda testified that Davis did not have any safety cones on his truck.
Once again, there is no more reason to credit Davis’ account than Kunda’s. Moreover, photos
taken by Kunda and introduced into evidence by Respondent, R. Exh. 15, appear to support
Kunda’s version of events.35
On the basis of his December 9 visit, Kunda wrote Davis up for 1) not wearing his safety
glasses and hardhat; 2) not placing safety cones in front of his vehicle and the absence of all the
required ladder straps needed to keep his ladders from falling off his truck while moving.
40
Respondent suspended Davis for 10 days. Carlos Padilla informed Davis of the
suspension in person and then drove Davis from the Helena warehouse to his home in Butte.
Respondent belatedly notified the Union of the suspension and extended the suspension for an
additional 10 days.

12 I dismiss the Section 8(a)(3) allegation with regard to Thomas’ suspension for the same reasons I
dismiss he allegation regarding his discharge.
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10
I find that the General Counsel has not established that either the inspection or the
suspension was discriminatorily motivated. For one thing, there is no evidence of recent union
activity on the part of Davis of which Respondent was aware. For another, Kunda’s testimony,
that his inspection was done pursuant to direction from Respondent’s workers compensation
manager, is more plausible. Indeed, Davis testified that Carlos Padilla, while driving him back to 5
Butte on December 12, told him that the inspection was initiated by Mary Meyer, the workers
compensation manager.
Alleged Constructive Discharge of John Davis
10
John Davis returned to work on Wednesday, December 31, 2014. He was reinstated
without backpay. Originally, Respondent had indicated that Davis would receive backpay if he
was reinstated, but this was not part of the agreement between the Union and Respondent.
Davis also worked January 1-3 (Thursday through Saturday). Davis was not scheduled 15
for work on Sunday, January 4 and Monday, January 5, 2015. On January 6 and 7, Davis called
off of work on the grounds that he was ill. On either January 5 or 6, Davis applied for work with
a Toyota dealership as an automobile salesman. On January 8, Davis resigned from his
employment with Respondent. He began working for the Toyota dealer either on January 9 or
Monday, January 12.20
Davis and the General Counsel allege that Davis was constructively discharged due to a
number of things that occurred just prior and after his return to work:
1) Respondent refused to provide transportation from his home in Butte to the Helena 25
warehouse to pick up a service truck. This was after technician Carlos Padilla offered
to drive to Butte and give Davis a ride back to Helena.13,14
2) Respondent omitted a bag of bolts and nuts from the supplies on Davis’ truck on
December 31. This made it impossible for Davis to install any of satellite dishes he
was supposed to. This in some way could affect his performance rating over the long 30
run.15
3) Davis was not allowed to speak to any dispatcher other than Theresa Alderman.
Davis does not allege that he was mistreated by Ms. Alderman. He objects to the
fact that no other dispatcher would take his calls.
4) Respondent assigned him a truck with two missing ladder straps. Failure to have all 35
four ladder straps was one of the reasons Davis was suspended in December.
5) Respondent did not give Davis a company cellphone. Carlos Padilla testified that he
gave Davis a cellphone on December 31. 16
6) On January 6, he was told that he was not covered by the vision insurance plan
offered by Respondent. This was ultimately rectified. Respondent offered Davis the 40

13 Butte and Helena are about 65 miles apart.
14 Padilla did not contradict Davis’ testimony that he made such an offer.
15 Respondent did not give Davis any assurance that the omission of the bolts and nuts, which was
largely Respondent’s fault, would not count against him in any way. This cuts against Respondent’s
assertion that the omission was inadvertent.
16 As Respondent points out in its brief, when Davis complained of harassment to Marcus Kunda on
January 1, 2015, he did not mention that he had not been issued a cellphone. Thus, I credit Padilla.
JD–51–15
11
choice of having his insurance reinstated back to May 2014 or having his premium
refunded. Davis chose the refund. Respondent initially sent Davis a check for $110
made out to James Davis, a different employee. Davis ultimately received the refund.
Legal Analysis regarding the alleged constructive discharge of John Davis5
In order to establish a constructive discharge, the General Counsel must show that the
burdens imposed on an employee must cause, and be intended to cause, a change in working
conditions so difficult or unpleasant as to force the employee to resign. Second, the General
Counsel must establish that those burdens were imposed because of the employee’s union 10
activities, Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976).
I find that the General Counsel has not established that Respondent constructively
discharged Davis. None of the actions on which the General Counsel relies regarding
constructive discharge were prospective—except having to talk to Theresa Alderman whenever 15
he called the dispatching office. This can hardly be considered a burden so difficult or
unpleasant that it would force an employee to quit. Respondent’s refusal to give Davis a ride
from Butte to Helena on December 29, establishes animus towards his union activity. Given the
fact that Carlos Padilla drove Davis to Butte and offered to pick him up on December 29, the
lack of any alternative explanation for Respondent’s refusal to give Davis a ride establishes 20
animus. However, this refusal had no impact on Davis working conditions after December 29.
The same is true with regard to the absence of the nuts and bolts on December 31.
Putting aside whether this was deliberate or an honest oversight, there is no reason to infer that
Respondent was going to continue to give Davis inadequate resources to do his job.25
Likewise, there is no reason to believe that Respondent was going to fail to provide Davis
with adequate ladder straps. Similarly, there is no evidence that Respondent would not have
given Davis a cellphone if he had demanded one (putting aside Respondent’s testimony that
Davis was given a cellphone upon his return to work.)1730
As to mistakes regarding Davis’ vision insurance, there is no evidence that Respondent
was responsible for it. Moreover, Davis had every reason to believe that the mistake would be
corrected, as it was rectified in fact.
35
In sum I dismiss the complaint allegation that Respondent constructively discharged
Davis.18

17 As Respondent points out, Davis in his January 1, 2015 email to Kunda complaining about
harassment the day before, did not mention that he was not given a cellphone, Jt. Exh. 4, p. 30.
18 An employee’s voluntary quit will be considered a constructive discharge when an employer
conditions an employee’s continued employment on the employee’s abandonment of his or her Section 7
rights and the employee quits rather than comply with the condition. Hoerner Waldorf Corp., 227 NLRB
612, 613 (1976). This type of constructive discharge is not relevant to Davis’ case.
I dismiss the Section 8(a)(3) allegation with regard to Davis’ suspension because there is no evidence
on which to conclude that the suspension was motivated by his union activity.
JD–51–15
12
Alleged Section 8(a)(1) statement by Carlos Padilla
Paragraphs 8 and 10 of complaint alleged that Respondent by Carlos Padilla violated
Section 8(a)(1) on January 4, 2015, by telling John Davis over the telephone that he needed to
find another job because Davis had contacted the Union.5
The essence of this complaint item is Davis’ testimony at Tr. 238 that sometime after his
return to work, Padilla said to him, “John, you know, off the record, you went to the union
there’s nothing you can do, you’re done. You can just get another job.” Padilla did not
specifically deny the statement attributed to him by Davis, Tr. 437. He testified that he didn’t 10
make any statement about Davis’ union activities. Without a direct contradiction, I credit Davis.
However, I find that the General Counsel did not establish that Padilla was an agent of
Respondent when making this statement. Therefore, I dismiss this complaint allegation.
The Agency status of Carlos Padilla1915
There is no question that for some period of time Carlos Padilla was a statutory agent of
Respondent. He was a lead technician and for a period of time was the highest ranking
representative of Respondent at the Helena warehouse. Padilla presented John Davis with
disciplinary notices, which he signed.20
On about December 26, 2014, Marcus Kunda was given oversight responsibility for the
Helena warehouse, as well as for Bozeman. Both Kunda and Padilla told John Davis, upon his
return to work, that Davis would be reporting to Kunda and not to Padilla.
25
At Tr. 240, Davis testified that several days prior to December 31, “when Carlos and I
talked Carlos said he was no long my point of contact, it was now Marcus.” At Tr. 237, Davis
testified that Carlos, “told me there wasn’t a whole lot that he could do. That they pretty much
pulled the reigns (sic) from him, so far as I was concerned.” From the context of this testimony,
I infer this conversation occurred sometime between December 31 and January 4. Thus, I find 30
that Respondent had made it clear to Davis that Padilla no longer spoke for the company so far as
Davis was concerned. Thus, I concluded that Padilla was not an agent of Respondent pursuant to
Section 2(13) of the Act, after Davis returned to work on December 31.
Judge Meyerson’s decision, as adopted by the Board, is collateral estoppel with regard 35
Respondent’s depriving employees of their guaranteed days off.
Were it not for Judge Meyerson’s decision, which was adopted by the Board, I would be
inclined to find that Respondent violated the Act in reneging on its promise to Seitz, Billman and
Thomas that they were guaranteed certain days off due to custody and child care issues. I would 40
find that these promises made several years prior to July 2014, were more specific past practices

19 I need not analyze whether or not Padilla was or was not a supervisor pursuant to Section 2(11) of
the Act prior to December 31, 2014 because that record does not establish that he was a statutory
supervisor after that date. Graham Architectural Products Corp., 259 NLRB 1174 (1982), cited by the
General Counsel is distinguishable because the individual in question in that case remained a supervisor
of some employees, although not the discriminatee. In this case there is no evidence that Padilla was a
supervisor or agent with respect to any of Respondent’s employees after December 31.
JD–51–15
13
than Respondent’s past practice of maintaining maximum flexibility with regard to work days
and work hours.20 However, this is exactly the issue that Judge Meyerson decided with regard to
Joseph Severson at Respondent’s Helena facility.
Respondent promised Severson that he would not have to work later than 2:00 p.m. on 5
Tuesdays so that he could look after his children when his wife went to work. It later reneged on
this promise. Judge Meyerson found that Respondent did not violate the Act in doing so.
Under the collateral estoppel doctrine, “once an issue is actually and necessarily
determined by a court of competent jurisdiction, that determination is conclusive in subsequent 10
suits based on a different cause of action involving a party to the prior litigation.” Big D Service
Co., 293 NLRB 322, 323 (1989), citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 fn. 5
(1979), and Marlene Industries Corp. v. NLRB, 712 F.2d 1011, 1015–1016 (6th Cir. 1983). An
issue is “necessarily determined,” if its adjudication was necessary to support the judgment
entered in the prior proceeding. Marlene Industries, supra, 712 F.2d at 1015.15
The General Counsel argues that Judge Meyerson’s decision was limited to the Helena
facility. To the contrary, I find it was much broader and stands for the proposition that
Respondent had an established corporate past practice of retaining maximum flexibility with
regard to scheduling work hours and work days—regardless of what assurances it has given 20
employees in the past.
First of all, the case before Judge Meyerson involved several of Respondent’s facilities in
several different states. Several issues in the case concerned more than one facility. For
example, one issue was whether Respondent had increased its use of subcontractors after the 25
Union was certified. Judge Meyerson’s conclusion, that this was not the case, was applicable to
all of Respondent’s facilities. His decision regarding Respondent’s new requirement for hard
hats, safety glasses and back braces was also rendered on a corporate wide basis. The same is
true for his decision regarding travel pay, Respondent’s overtime policy, work boot policy and
health insurance.30
The only issues that pertained to only one facility was Respondent’s decision to impose
more stringent time procedures for morning preparation at Nampa and a mandatory on-call
policy at Kalispell. The complaint in Judge Meyerson’s case only alleged a violation at Nampa
with regard to reducing the work week from 4 days to 3. However, he decided the case on the 35
basis on a corporate-wide policy reserving maximum flexibility in changing work schedules.
Regarding Joseph Severson’s schedule, Judge Meyerson stated at page 20 of his decision:
As counsel for the Respondent points out in his post-hearing brief, the technicians who 40
work for the Respondent are aware that the nature of the Respondent’s business requires
maximum flexibility in scheduling in order to meet the demands of the Dish Network,
which varies considerably from day to day. As I have noted earlier in this decision, the

20 An employer’s actual practice, even if it differs from a written policy, becomes a term and
condition of employment that cannot be altered without the agreement of the union, Sunoco, 349 NLRB
240, 244 (2007).
JD–51–15
14
Respondent is unaware from day to day just how many orders for installation and repair it
will receive from the Dish Network. In order to meet this uncertain demand, the
Respondent employs subcontractors to fill in any gaps in staffing, and also expects its
own technicians to exercise maximum flexibility so as to be able to work the varying
number of hours necessary to get the job done. This has been the past practice of the 5
Respondent and its work force, and I have seen no credible, probative evidence that this
practice has changed with the onset of union representation.
When Judge Meyerson relied on Respondent’s past practice in dismissing the complaint
allegation regarding Joseph Severson, it is clear to me that was relying on a corporate-wide 10
practice, not one limited to the Helena facility.
The “new” requirement that non-consecutive leave had to be requested
on separate forms
15
The General Counsel’s witnesses testified that they had never been required to request
non-consecutive leave days on separate forms until Respondent posted a notice with that
requirement on July 7, Jt. Exh. 2, p. 8. The record shows that the General Counsel’s witnesses
consistently requested non-consecutive days off on separate forms long before July 2014.
However, it also shows that on April 30, Tim Seitz requested paid time off for April 27 and 29 20
on one form and that the request was approved. Thus, I find that although employees generally
requested nonconsecutive days off on separate forms they were not required to do so until July 7,
2014.
However, not every unilateral change violates Section 8(a)(5) and (1). The change must 25
be material, substantial, and significant, Peerless Food Products, 236 NLRB 161 (1978). I find
that the requirement to use separate forms for non-consecutive leave requests does not meet this
standard. Therefore, I dismiss the complaint insofar as it alleges that this change violates the
Act.
30
The “new” 14-day notice requirement for leave requests
The General Counsel concedes that Respondent in posting a requirement for 14 days
advance notice of a leave request was generally not implementing a change in policy. However,
he asserts that it had never been applied to guaranteed days off, such as the weekend days off 35
guaranteed to Seitz, Thomas and Billman. I credit the testimony of these employees on this
issue.
Respondent’s evidence with respect to the 14-day requirement is unpersuasive. The fact
that Tye Thomas on one occasion submitted a request 14 days in advance for a Friday and 40
Saturday, does not rebut the General Counsel’s evidence that employees did not have to submit a
leave request for 14 days in advance for each guaranteed day off.
I find that the employees were not scheduled on certain days for several years and never
had to submit a leave request for those days of the week. By imposing a requirement that 45
employees who were guaranteed certain days off submit a leave request 14 days in advance,
JD–51–15
15
Respondent unilaterally changed the terms and conditions of their employment. I conclude this
change violated Section 8(a)(5) and (1).
The “Alan Ritchey” allegations
5
The General Counsel alleges that Respondent violated Section 8(a)(5) and (1) in failing
to offer the Union prior notice and an affording it an opportunity to bargain with Respondent
with respect to the suspensions of Davis and Thomas. These allegations are based on the
Board’s decision in Alan Ritchey, 359 NLRB No. 40 (2012). In that case the Board, for the first
time, held that an employer whose employees are represented by a union must bargain with the 10
union before imposing discretionary discipline during the period between a union’s certification
(or recognition) and the parties’ first collective bargaining agreement. Alan Ritchey was one of
the many decisions invalidated by the U.S. Supreme Court in NLRB v. Noel Canning, 134 S. Ct.
2550 (2014). The decision was held invalid on the grounds that the Board did not have a quorum
that was constitutionally appointed.15
Respondent suspended Thomas and Davis before notifying the Union.21 However, this
was consistent with an agreement between the Union and Respondent, Jt. Exh. 3, p. 10. The
parties agreed prior to August 2014 that Respondent could suspend an employee without pay or
benefits and then notify the Union, Tr. 54-57. Then pursuant to their agreement, the parties 20
would negotiate over the terms of the discipline. After November 2014, Respondent stated that
if, after discussion with the Union, it was decided that a suspension was improper, the employee
would be returned to work with full pay and benefits, R. Exh. 4, p. 651.
I find that the Union, in agreeing to the procedure whereby Respondent was allowed to 25
suspend employees and then negotiate over the appropriate level of discipline, waived its right to
notice prior to suspensions. Moreover, the record shows that Respondent had an established past
practice going back to at least December 2013 of suspending employees and then negotiating
with the Union over the discipline to be imposed, Jt. Exh. 3, pp. 10, 28, 32.
30
Since I find that the Union waived its right to pre-suspension notice, I need not decide
whether the rationale in Alan Ritchey should be followed, or applied prospectively in the absence
of valid Board decision reaffirming that rationale. Moreover, Respondent did not violate the
Act, even under the terms of the Alan Ritchey decision. Footnote 20 at page 9 of the Board’s slip
opinion states as follows:35
An employer seeking a safe harbor regarding its duty to bargain before imposing
discipline may negotiate with the union an interim grievance procedure that would permit
the employer to act first followed by a grievance and, potentially, arbitration, as is typical
in most complete collective-bargain agreements.40

21 Thomas was suspended on August 12. The Union was notified of the suspension on August 14.
Davis was suspended for 10 days without pay on December 12, 2014. Respondent notified the Union of
the suspension on December 18. In its December 18 email to the Union, Respondent extended the
suspension for another ten days to allow sufficient time for discussion. The December 12 suspension
notice stated that if Davis was reinstated Respondent would pay him full-back pay, Jt. Exh. 4, p. 11.
However, the Union and Respondent negotiated an agreement in which Davis was reinstated without back
pay effective on December 29, Jt. Exh. 4, pp. 12, 17, 26.
JD–51–15
16
While Respondent did not negotiate an interim grievance procedure with the Union, I
find that it complied with the law even under Alan Ritchey whereby it would suspend employees
and then provide the Union the opportunity to negotiate over the discipline to be imposed. Thus
I find that under any legal standard, Respondent did not violate the Act.
5
Conclusions of Law
Respondent did not violate the Act in any of the respects alleged in the complaint, except
for the imposing a 14 day notice requirement on employees who were assured that they would
not be scheduled to work on certain days of the week.10
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 15
the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended22
20
ORDER
The Respondent, Star West Satellite, Inc. its officers, agents, successors, and assigns,
shall
25
1. Cease and desist from
(a) Refusing to bargain with the International Brotherhood of Electrical Workers, Local
206, as the exclusive bargaining representative of its technicians and warehouse employees over
the terms and conditions of their employment.30
(b) Implementing any material, substantial and significant changes in the terms and
conditions of employment of these employees without providing the Union advance notice of
those changes and an opportunity to bargain with respect to those proposed changes. This
includes any changes in Respondent’s policies for requesting leave or days off pertaining to days 35
on which employees have been previously assured that they would not be scheduled to work.
(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.
40
2. Take the following affirmative action necessary to effectuate the policies of the Act.

22 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.
(a) Rescind its policy of requiring 14
week that employees have previously been assured they would not be scheduled.
(b) Within 14 days after service by the Region, post at it
attached notice marked “Appendix.5
Director for Region 19 after being signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. In addition to physica
posting of paper notices, the 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 10
communicates with its employees by such means. Reasonabl
Respondent to ensure that the notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facility invo
mail, at its own expense, a copy of the notice to all current employees and former employees 15
employed by the Respondent at any time since
(c) Within 21 days after service by the Regio
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.20
Dated, Washington, D.C., September 1
25

23 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.”
17
days’ notice for leave/time off for days of the
s all its facilities
”23 Copies of the notice, on forms provided by th
e steps shall be taken by the
lved in these proceedings, the Respondent shall duplicate and
July 7, 2014.
n, file with the Regional Director a
1, 2015.
Arthur J. Amchan
Administrative Law Judge
JD–51–15
copies of the
e Regional
l
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 refuse to bargain with Local 206. International Brotherhood of Electrical
Workers as the exclusive bargaining representative of our installation and service technicians and
our warehouse employees.
WE WILL NOT impose new notice requirements for leave or scheduled days off without
providing the Union notice and an opportunity to bargain about these proposed changes.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind our policy of requiring 14 days advance notice of any employee’s intention
to be off of work for any days that an employee has previously been assured that he or she would
not be scheduled to work.
STAR WEST SATELLITE, INC.
(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.
915 2nd Avenue, Room 2948, Seattle, WA 98174-1078
(206) 220-6300, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CA-133107 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, (206) 220-6284.