Kinard v. Dish Network Corporation

Filing 54

Memorandum Opinion and Order on the Petition for Injunction Under Section 10(j) of the National Labor Relations Act, as Amended (ECF No. 1), is GRANTED in part and DENIED in part. (Ordered by Judge Reed C. O'Connor on 1/14/2017) (Judge Reed C. O'Connor)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

MARTHA KINARD, Regional Director of
the Sixteenth Region of the National
Labor Relations Board, for and on behalf
of the NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v.
DISH NETWORK COMPANY,
Respondent.

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Civil Action No.: 4:16-cv-00952-O

ORDER
Before the Court is the Petition for Injunction Under Section 10(j) of the National Labor
Relations Act, as Amended (ECF No. 1), filed October 17, 2016, by Martha Kinard, Regional
Director of the Sixteenth Region of the National Labor Relations Board, for and on Behalf of the
National Labor Relations Board (“Petitioner”). Petitioner seeks an injunction prohibiting the
alleged unfair labor practices of DISH Network Company (“DISH”), pending the final disposition
of these matters, which are currently pending before the National Labor Relations Board (the
“Board”).
Having considered the petition, related briefing, and relevant law, the Court finds that the
petition should be and is hereby GRANTED in part and DENIED in part.
I.

BACKGROUND
The factual recitation is taken largely from Petitioner’s and Respondent’s briefs in support

and opposition. ECF Nos. 7, 19. The Communication Workers of America (the “Union”)
represents technicians and warehouse employees at DISH’s Farmers Branch and North Richland
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Hills, Texas facilities. The two units were organized in 2009. No other DISH employees at any
facility are represented by a union.
A.

Wage History

In 2009, prior to certification of the Union at the two facilities, DISH introduced a pilot
compensation program called Quality Performance Compensation (“QPC”) for technicians at
Farmers Branch, North Richland Hills, and a few other facilities. QPC provided a low base wage
with a large incentive program. Technicians disliked QPC. According to DISH, animosity with
QPC led to certification of the Union. Resp.’s Br. Opp. 6, ECF No. 19.
DISH was soon unsatisfied with QPC and it instituted a new pay program entitled
Performance Incentive Plan (“Pi”) for its technicians at all its facilities except Farmers Branch and
North Richland Hills. Pi offered a higher base wage than QPC with a smaller incentive program.
Because DISH and the Union were bargaining for a new contract at the time DISH switched to Pi,
the two Union facilities were required to remain under QPC, as it was the status quo at the time
the Union was certified. See, e.g., NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir. 1970)
(“[W]henever the employer by promises or by a course of conduct has made a particular benefit
part of the established wage or compensation system, then he is not at liberty unilaterally to change
this benefit either for better or worse during the union campaign or during the period of collective
bargaining.”).
DISH and the Union began bargaining in July 2010 and continued until November 20,
2014. During this time unit technicians’ earnings under QPC ballooned. QPC paid employees
based on performance metrics that DISH was unable to adjust due to collective bargaining. As
DISH improved its processes and technologies, DISH technicians were able to complete tasks
more quickly and thus earn more under the QPC incentive program. As a result, the wages of unit

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technicians increased by about $17,000 between 2013 and 2015. Resp.’s Br. Opp. 9, ECF No. 19.
In 2015, Union members were making, on average, $19,000 more than their non-unionized peers.
Id. at 9–10. Thus, by the time face-to-face bargaining between DISH and the Union ceased in
November 2014, DISH was eager to remove QPC, while the Union was intent to preserve it. The
parties’ bargaining history is best understood against this background.
B.

Bargaining History

As the bargaining history is central to Petitioner’s claim in this case, the Court recounts the
history in some detail. The last in-person bargaining sessions between DISH and the Union
occurred on November 18, 19, and 20, 2014. The lead negotiators at this point were Sylvia Ramos
for the Union and George Basara for DISH. On November 18, 2014, the Union presented a
proposal that was rejected by DISH, and on November 19, 2014, DISH presented a proposal that
was rejected by the Union.
Another bargaining session was scheduled for December 8, 2014. Then Ramos suffered a
death in the family and was unable to attend the scheduled session. Union Attorney Matt Holder
informed Basara on December 4, 2016, that the Union would be unable to make the December 8
session and proposed dates in January and February 2015 for rescheduling. App. 1418, ECF No.
8. Basara replied by stating that if the Union was unable to meet, and did not provide a proposal
in writing, DISH would consider bargaining to be at an impasse. Id.
Ramos responded later the same day, stating that the Union did not normally negotiate via
email but under the circumstances the Union would send back a counterproposal in writing. App.
1421–23. Ramos also clarified that the email did not waive the Union’s right to bargain in person.
App. 1423. On December 9, 2014, Ramos sent the written counterproposal via email. App. 1587.
Basara then once again inquired about meeting in December and Ramos informed him that she

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had no dates available until January. App. 1424–29.
On December 18, 2014, Basara sent Ramos an email stating that he believed bargaining to
be exhausted and he attached DISH’s “last, best, and final offer.” App. 1355–59. He asked that
the Union take the proposal to its members and inform him if the proposal was accepted, at which
time they would consider further bargaining. App. 1359.
Ramos responded that the Union had not waived its right to bargain in person and insisted
on meeting and bargaining over its counterproposals. App. 1382–84. The next day, December
31, 2014, Basara informed the Union by email that he was resigning from his law firm and that his
partner Brian Balonick would be taking over. App. 1385. Basara resigned from his firm in January
2015.
The Union did not attempt to contact Balonick, DISH’s new lead negotiator, during all of
2015, nor did Balonick attempt to contact the Union. Ramos stated at the administrative hearing
that she did not reach out to Balonick because she did not have his contact information and she
knew he had a trial in January 2015 and would need time to familiarize himself with the parties’
history. App. 489. Balonick stated that he believed the Union was not interested in reaching an
agreement and was stalling. App. 116. He believed that the Union knew DISH’s position and
there was an expectation that it would respond, either by contacting the company or filing an unfair
labor practice charge. Id.
Then, on January 8, 2016, Balonick first contacted the Union. App. 1389. He stated in a
letter to Ramos that DISH’s previous last offer on November 19, 2014, remained DISH’s final
offer and that he believed further bargaining would not be productive. Id. Ramos replied on
January 13, 2016. App. 1391. She recounted the bargaining history from her perspective and
requested that Balonick send her dates for bargaining. App. 1391–93.

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On February 2, 2016, Balonick replied via email. App. 1411. He reiterated his belief that
the parties were at “a standstill” and asked Ramos to explain her position that the parties were not
at an impasse. Id. On February 3, 2016, Ramos restated her request to bargain in person and
Balonick did not respond for two months. App. 1431.
On April 4, 2016, Balonick emailed Ramos stating that, no later than April 23, 2016, DISH
would implement its last, best, and final offer, unless the Union offered a written explanation of
why the Union believed the parties were not at an impasse. App. 1413–16. In this email, Balonick
identified the December 2014 offer as DISH’s last, best, and final offer. App. 1413.
The Union filed the original charges in this matter on April 7, 2016.
C.

Implementation of Final Offer

On April 5 and 6, 2016, DISH held meetings where it announced to employees that it was
implementing its last, best, and final offer, which included a new wage rate for technicians and a
new healthcare policy. One employee at the North Richland Hills facility quit the day of the
announcement.
Prior to the meeting at North Richland Hills on April 6, 2016, Field Service Manager Hanns
Obere inadvertently sent a text message about the changes intended for someone else to unit
technician Kenneth Daniel. Among other things, the text message said that the Union was “gone”
and that the Farmers Branch and North Richland Hills offices were gradually closing. App. 1454–
56. Obere wrote, “They would rather have the techs quit en mass [sic].” App. 1456. The message
was disseminated to other North Richland Hills employees. Mem. Supp. Pet. 17, ECF No. 7.
On April 23, 2016, DISH implemented the wage changes for technicians, but no wage
change for warehouse employees, who are also represented by the Union. The new healthcare
policy took effect in July 2016. Technicians’ wages were cut by approximately 50%. Id. Level

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4 technicians previously making an average of $30.60 per hour under QPC, now made $17.00 per
hour with no incentive program. Id.; Pet.’s Trial Ex. 2. The rates at unit facilities are lower than
at any other facility in the region. Id.
Since the April 23, 2016 implementation of new wage rates, 16 technicians at North
Richland Hills have resigned and one technician at Farmers Branch has resigned. The record
suggests these employees quit because of the cut in wages. Id. Some took other jobs with
comparable wages but no benefits. Id. Others went to lower paying or similar paying jobs which
offered more hours or the possibility of advancement. Id. DISH has hired some replacement
employees.
At some point following the wage change, North Richlands Hills Operations Manager
Waeland Thomas told employees not to discuss the Union or QPC with the new employees while
at work. There is no written account of this statement and accounts of what was said vary. At the
very least, Mr. Thomas stated that DISH would survey new employees after training and training
technicians could suffer consequences if the survey reported that the new employees were made
uncomfortable by talk of the Union. Some unit employees understood Thomas to say they were
prohibited from discussing the Union with new employees in any context and discussing it could
lead to termination.
D.

Procedural Posture

On June 23, 2016, Martha Kinard, the Regional Director for Region 16 of the Board, on
behalf of the General Counsel, issued an Order Consolidating Cases, Consolidated Complaint, and
Notice of Hearing against DISH for numerous alleged violations of the National Labor Relations
Act (the “NLRA” or “Act”) arising out of the above facts. On July 22, 2016, the Regional Director
issued an Order Further Consolidating Cases, Second Consolidated Complaint, and Notice of

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Hearing consolidating additional related cases. A hearing on all cases convened before an
administrative law judge of the Board from August 8, 2016, through August 11, 2016. The hearing
reconvened from September 28, 2016 through September 30, 2016.
Petitioner filed the petition for injunctive relief under § 10(j) of the NLRA on October 17,
2016. ECF No. 1. After briefing completed (ECF Nos. 7–8, 19, 21, 26), the Union sought leave
to file an Amicus Curiae brief, which the Court granted. ECF Nos. 27–30. DISH filed a reply.
ECF No. 32. The Court held a hearing on the equitable necessity of injunctive relief in this case
on January 6, 2017. Min. Entry, ECF No. 53. The petition is now properly before the Court.
II.

LEGAL STANDARD
Petitioner seeks an injunction under § 10(j) of the NLRA. Section 10(j) provides:
The Board shall have power, upon issuance of a complaint as provided in
subsection (b) of this section charging that any person has engaged in or is engaging
in an unfair labor practice, to petition any United States district court, within any
district wherein the unfair labor practice in question is alleged to have occurred or
wherein such person resides or transacts business, for appropriate temporary relief
or restraining order. Upon the filing of any such petition the court shall cause notice
thereof to be served upon such person, and thereupon shall have jurisdiction to grant
to the Board such temporary relief or restraining order as it deems just and proper.

29 U.S.C. § 160(j). In issuing an injunction under § 10(j) a district court considers only two factors:
“(1) whether the Board, through its Regional Director, has reasonable cause to believe that unfair
labor practices have occurred, and (2) whether injunctive relief is equitably necessary, or, in the
words of the statute, ‘just and proper.’” McKinney ex rel. NLRB v. Creative Vision Res., LLC, 783
F.3d 293, 296–97 (5th Cir. 2015) (citing Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185,
1188–89 (5th Cir. 1975)). Each prong must be established with “reasonable clarity.” Id. at 297–
98.
“In determining whether reasonable cause exists to believe that unfair labor practices have
been committed, the district court need only decide that the Board’s theories of law and fact are
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not insubstantial or frivolous.” Pilot Freight Carriers, 515 F.2d at 1189 (citing Boire v. Int’l Bhd.
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 479 F.2d 778 (5th Cir. 1973);
Samoff v. Bldg. and Constr. Trades Council, 475 F.2d 203 (3d Cir. 1973); San Francisco-Oakland
Newspaper Guild v. Kennedy, 412 F.2d 541 (9th Cir. 1969); Schauffler v. Local 1291, 292 F.2d
182 (3d Cir. 1961)). The Eleventh Circuit has elaborated that this standard requires the Board to
“present enough evidence in support of its coherent legal theory to permit a rational factfinder,
considering the evidence in the light most favorable to the Board, to rule in favor of the Board.”
Arlook v. S. Lichtenberg & Co., Inc., 952 F.2d 367, 371–72 (11th Cir. 1992) (citing Pascarell v.
Vibra Screw Inc., 904 F.2d 874, 882 (3d Cir. 1990); Kobell v. Suburban Lines, Inc., 731 F.2d 1076,
1085 (3d Cir. 1984)).
The “just and proper” element is satisfied when: “(1) the employer’s alleged violations of
the NLRA and the harm to the employees or to the union are concrete and egregious, or otherwise
exceptional; and (2) those harms, as a practical matter, have not yet taken their adverse toll, such
that injunctive relief could meaningfully preserve the status quo among the employer, the union,
and the employees, that existed before the wrongful acts occurred.” Creative Vision, 783 F.3d at
298. Stated differently, “[t]he NLRB must show, and the district court must find, that the unfair
labor practice, in the context of that particular case, has caused identifiable and substantial harms
that are unlikely to be remedied effectively by a final administrative order from the NLRB.” Id.
at 299. The district court is required to “articulate specific reasons to justify the issuance of an
injunction based on the facts of the specific case.” Id. at 302. And the court may not rely on
“speculative and generalized harms.” Id.
III.

ANALYSIS
The Court first addresses the reasonable cause prong then considers whether injunctive

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relief is “just and proper.”
A.

Reasonable Cause

Petitioner alleges that DISH: (1) coerced and threatened employees in violation of § 8(a)(1)
of the Act; (2) set new retaliatory and discriminatory wage rates resulting in the constructive
discharge of Union employees in violation of § 8(a)(3); and (3) unilaterally decreased employees’
wages and changed employees’ health insurance without first bargaining in good faith with the
union to “impasse” in violation of § 8(a)(5). The Court first considers the third allegation—
whether Petitioner has reasonable cause to believe that the parties were not at an impasse and
DISH’s implementation of its last proposal was, therefore, unlawful.
“As a general rule, unilateral changes in the terms and conditions of employment instituted
by an employer during contract negotiations without consultation with the Union constitute failure
to bargain collectively in violation of § 8(a)(5).” Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1186
(5th Cir. 1982) (citing NLRB v. Katz, 369 U.S. 736 (1962); NLRB v. J.P. Stevens & Co., Inc.,
Gulistan Div., 538 F.2d 1152, 1162 (5th Cir. 1976); NLRB v. Tex-Tan, Inc., 318 F.2d, 472, 482
(5th Cir. 1963)). However, if the parties reach a genuine impasse, “the employer is free to
implement changes in employment terms unilaterally so long as the changes have been previously
offered to the Union during bargaining.” Id. (footnotes and citations omitted).
“A genuine impasse in negotiations exists only where the parties have exhausted all
avenues for reaching agreement and there is ‘no realistic possibility that continuation of discussion
at that time would have been fruitful.’” Circuit-Wise, Inc., 309 NLRB 905, 918 (1992) (quoting
Am. Fed’n of Television Artists, AFL-CIO, Kansas City Local v. NLRB, 395 F.2d 622, 628 (D.C.
Cir. 1968)). Factors considered in determining if an impasse exists are: “[t]he bargaining history,
the good faith of the parties in negotiations, the importance of the issue or issues as to which there

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is agreement, [and] the contemporaneous understanding of the parties as to the state of the
negotiations . . . .” Id. Once an impasse exists, it can subsequently be broken if something “creates
a new possibility of fruitful discussion.” Raven Servs. Corp. v. NLRB, 315 F.3d 499, 505 (5th Cir.
2002) (quoting Gulf States Mfg. v. NLRB, 704 F.2d 1390, 1399 (5th Cir. 1983)).
DISH contends that the parties were at an impasse as early as November 2014 and
extending into April 2016. As an impasse can exist or erode based on past history and new
developments, the Court considers the existence of impasse sequentially.
Initially, the Court finds that Petitioner has reasonable cause to believe that the parties had
not reached an impasse as of November 2014. DISH’s then-counsel Basara scheduled another
bargaining session with the Union in December 2014 and DISH demonstrated movement by
agreeing to allow technicians to participate in the Smart Home Sales Incentive program. See
O’Reilly Enterprises, Inc., 314 NLRB 378, 380 (1994) (finding no impasse where employer’s
counsel stated the employer was willing to meet again); and Shangri-La Health Care Ctr., 288
NLRB 334, 334 (1988) (finding no impasse where parties had scheduled an additional negotiating
session).
If the parties were not at an impasse as of November 2014, Basara was not privileged to
condition face-to-face bargaining on the written exchange of proposals, as he did in the emails
exchanged in December 2014. Compare Nat’l Labor Rel. Bd. v. United States Cold Stor. Corp.,
203 F.2d 924, 928 (5th Cir. 1953) (employer not privileged to precondition bargaining on the
exchange of written proposals where an impasse was broken by a subsequent strike); Fountain
Lodge, Inc., 269 NLRB 674 (1984) (employer not privileged to condition bargaining on exchange
or written proposals where parties had not engaged in any face-to-face bargaining); with Holiday
Inn Downtown-New Haven, 300 NLRB 774, 775 (1990) (employer privileged to condition further

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bargaining on the exchange of written proposals where parties had negotiated in good faith and
were clearly at an impasse). While Ramos did send a written proposal on December 9, 2014, she
clearly stated that the Union had not waived its right to meet and discuss the proposal “face-toface.” App. 1423. On such facts, it is reasonable for Petitioner to believe that DISH was not
privileged to declare an impasse predicated upon the Union’s December 9, 2014 proposal or
DISH’s December 18, 2014 proposal.
Further, even if an impasse did exist after the written exchange of proposals, DISH’s
change in lead negotiator on December 31, 2014, and the subsequent passage of a year without
negotiation potentially opened the possibility of new fruitful discussion, therefore, making it
reasonable for Petitioner to believe impasse had eroded as of January 8, 2016, when Balonick first
contacted Ramos. See Raven Servs. Corp., 315 F.3d at 505 (considering “the mere passage of
time” as a factor relevant to determining if an impasse is broken) (citing Gulf States Mfg., 704 F.2d
at 1399) (finding change in new Union head suggested possibility of “fruitful negotiations”); Gulf
States Mfg., 704 F.2d at 1399 (citing the passage of four years’ time as factor eroding impasse);
Airflow Research & Mfg. Corp., 320 NLRB 861, 862 (1996) (citing the passage of one years’ time
and change in Union’s representative as factors eroding impasse).
If there was no impasse as of January 8, 2016, Balonick was not privileged to condition
bargaining on a vote by unit employees or a written explanation showing that the parties were not
at an impasse. See United States Cold Stor. Corp., 203 F.2d at 928 (employer not privileged to
precondition bargaining on the exchange of written proposals where an impasse was broken by a
subsequent strike); In Re Jano Graphics, Inc., 339 NLRB 251, 251 (2003) (“[T]he Respondent’s
continued insistence on a nonmandatory subject of bargaining—the ratification vote by unit
employees—and its refusal to bargain on and after . . . tainted any subsequent impasse.”).

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Therefore, Petitioner has reasonable cause to believe that the parties were not at an impasse when
DISH implemented its “last, best, and final offer” on April 23, 2016, and that DISH thus violated
§ 8(a)(5) by unilaterally decreasing employees’ wages and altering employees’ health insurance
without first bargaining in good faith with the union to impasse.
As the unilateral wage-change allegation is the core of Petitioner’s complaint and is
sufficient to support the only injunctive relief the Court finds to be equitably necessary, as outlined
below, the Court assumes without finding that Petitioner has reasonable cause to believe that DISH
also committed the other alleged violations.
The Court now turns to the second prong of the § 10(j) inquiry—whether injunctive relief
is “just and proper.”
B.

Equitable Necessity

The NLRB seeks an injunction requiring DISH to (1) restore all unit employees to the preimplementation wages and healthcare benefits enjoyed prior to April 23, 2016; (2) offer interim
reinstatement to constructively discharged employees to their jobs with the pre-implementation
wages and healthcare benefits they enjoyed prior to April 23, 2016; and (3) bargain in good faith
with the Union. Pet. 11–12, ECF No. 1. For the following reasons, the Court concludes that it is
just and proper to restore all unit employees to pre-implementation wages, but all further injunctive
relief is not equitably necessary. See Pilot Freight Carriers, 515 F.2d at 1193 (“If the trial court,
in its discretion, does not believe that far-reaching mandatory relief would serve the purposes of
the Act, it need not grant the full remedy requested by the Board.”)
The Court discusses each request for relief in turn.
1.

Restoring All Unit Employees to Pre-Implementation Wages

The “just and proper” element of the § 10(j) inquiry is satisfied when petitioner establishes

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that the “alleged violations of the NLRA and the harm to the employees or to the Union is concrete
and egregious, or otherwise exceptional.” Creative Vision, 783 F.3d at 298. “To constitute
‘egregiousness’ . . . a labor practice must lead to exceptional injury, as measured against other
unfair labor practices.” Id. at 299.
Here, Petitioner alleges that DISH unlawfully and unilaterally cut technicians’ wages by
an average of 50%. Mem. Supp. Pet. 19. For example, unit employees went from earning, on
average, approximately $23 to $32 per hour to earning $13 to $17 per hour. Id. at 13. Such a
drastic cut is exceptional, without reference to any other allegations in Petitioner’s brief.
Egregiousness is further established by the fact that the unit technicians’ new wage rates
are lower than all other non-union technicians in the region. See Pet.’s Trial Ex. 2. For example,
Level 4 technicians at the Farmers Branch and North Richland Hills facilities, on average, make
more than $5 less per hour than technicians at the North Texas facilities with the next two lowest
hourly rates. Id. (normalized rate for FSS4 at Farmers Branch, $17.81; North Richland Hills,
$17.52; Fort Worth, $23.36; Waxahachie, $23.53). Notably, unit employees are not included in
any incentive program, unlike their North Texas peers. Id. DISH has not provided any justification
for this differential and, without such, improper retaliation seems the most likely explanation.1
The Court’s conclusion is not altered by evidence that the wages unit technicians were
making under QPC were above market rate. See, e.g., Resp.’s Trial Ex. 5. Even if technicians’
wages under QPC were higher than unit technicians could have earned in similar employment,
DISH was still bound by the lawful requirements of the NLRA. Therefore, if Petitioner’s

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Petitioner also highlighted comments Basara made at early bargaining not at issue here.as evidence of
retaliatory intent and, therefore, egregiousness. DISH filed Respondent’s Motion for Leave to
Supplement the Record (ECF No. 49), seeking to submit the investigative files related to the unfair labor
charges arising out of these comments in order to challenge Petitioner’s portrayal of events. Because the
Court does not rely on Basara’s comments in this Order, DISH’s Motion for Leave to Supplement the
Record (ECF No. 49) is DENIED as moot.

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allegations are correct, which the Court has found Petitioner has reasonable cause to believe they
are, the simple fact is DISH unlawfully cut unit employees’ hourly wages by half. It is not
appropriate, in this context, for the Court to dismiss such a drastic change in the employees’
conditions by weighing in on what the technicians should or should not have been making based
on the market.
Petitioner also demonstrated that both the unit employees and the Union have been and
continue to suffer identifiable and substantial harm as a result of the wage cut. Creative Vision,
783 F.3d at 299 (“[I]njunctive relief should issue when harms are ongoing, yet incomplete and
likely further to harm the union or its supporters in the workforce.”). At the hearing, several unit
technicians testified as to the financial difficulties they and others are confronting because of the
reduced wages. While there is evidence that the technicians were instructed that such testimony
would help their case, the Court finds their testimony credible. Anyone would struggle to realign
his or her finances after suffering an unexpected 50% reduction in income. House and car
payments that one may easily afford at $30 to $34 per hour can quickly become unsustainable at
$17 per hour.
Petitioner likewise provided sufficient evidence to show that the Union has suffered and
continues to suffer injury through diminishing support as a result of the wage reduction. This
diminishment is both in numbers and morale. At the North Richland Hills facility, 16 technicians
have resigned since the wage reduction and the record strongly suggests more intend to do so.
Mem. Supp. Pet. 19. While only one technician has resigned at the Farmers Branch facility,
Petitioner presented testimony evidence that others intend to quit if QPC is not restored in the near
future.
The Court acknowledges that the weight of technicians’ testimonies regarding their and

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others’ future plans is lessened by the speculative and hearsay nature of some of the testimony.
Similarly, the meaning of the resignation numbers is clouded by DISH’s evidence that the attrition
rate at Farmers Branch in 2016 was the lowest in the region, and the rate at North Richland Hills
was relatively average. Resp.’s Trial Ex. 2 (Farmers Branch attrition rate in 2016, 19%; North
Richland Hills, 86%; Denton, 101%; Arlington/Ft. Worth, 91%; Waxahachie, 49%; Weatherford,
53%; McKinney, 80%; Sunnyvale, 88%). However, the Court finds that enough current unit
technicians testified as to their own financial difficulties and plans to seek alternative employment
to credit the claim that Union membership will continue to erode without the restoration of QPC.
If unit technicians do not resign at the rate Petitioner suggests, there remains substantial
evidence that support for the Union among existing members continues to deteriorate. Union
representative Thomas Schaffer, whose job responsibilities include measuring Union support,
stated that the Union was “on the brink” of losing all support. This claim is supported by a textmessage exchange between DISH technicians at the Farmers Branch facility, in which one unit
employee suggests, if somewhat facetiously, that unit technicians throw out the Union in exchange
for back pay.2 Pet.’s Trial Ex. 3 (“So who wants to contact dishes lawyers and tell em to back pay
us and pay us the same as everyone else and we will vote the union out.”). Another set of text
messages showed one technician complaining of getting “disappointing news from a VERY

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On January 4, 2017, Petitioner filed a Motion for Protective Order to Limit Discovery Pursuant
to Fed. R. Civ. P. 26(c)(1) (ECF No. 44), seeking a protective order for these and other text
messages that were produced during discovery. Petitioner argues unit employees are at risk of
retaliation for the content of the text messages if DISH attorneys share the messages with DISH.
The next day DISH filed a response opposing the protective order on the grounds that it would
prohibit DISH from using the messages at the hearing, which occurred on January 6, 2017. As
DISH was able to offer a page of the text messages into evidence at the hearing and there are no
further evidentiary hearings in the matter, DISH’s objection is moot. Therefore, the Court finds
that Petitioners Motion for Protective Order (ECF No. 44) should be and is hereby GRANTED.
The protective order shall issue by separate order.
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disappointing union.” Resp.’s Trial Ex. 12 (emphasis in original). And as further evidence, one
former technician testified that he would not return to DISH, even if QPC were restored, because
he did not trust the Union to protect his wages.
DISH sought to undermine this evidence by tying some of the disfavor for the Union to the
Union’s failure to communicate with the units and the Union’s giving the units false hope that the
issue would be resolved quickly. The Court is unpersuaded. Even if the Union did err as DISH
sought to demonstrate, the record does not support a finding that failures in communication are the
cause of technicians’ frustration. Technicians’ testimonies and the submitted text messages make
clear that technicians’ number-one concern and frustration was and remains wages.

Unit

technicians’ perception that the Union failed to prevent a 50% reduction in their wages is clearly
the but-for cause of unit employees’ disillusionment with the Union.
Given the concrete possibility of Union dissolution—arising either from a loss of numbers
or loss of morale, or some combination thereof—the Court finds that injunctive relief preventing
further injury and restoring the status quo as it relates to wages is necessary in order to preserve
the remedial powers of the NLRB. Creative Vision, 783 F.3d at 299 (quoting Overstreet v. El
Paso Disposal, LP, 625 F.3d 844, 851 (5th Cir. 2010)) (Ҥ 10(j) relief is only appropriate when
‘any final order of the NLRB would be meaningless and the remedial purposes of the Act will be
frustrated without an injunction to preserve the status quo.’”).
2.

Restoring All Unit Employees to Pre-Implementation Healthcare

The Court is less persuaded that restoring all unit employees to pre-implementation
healthcare is equitably necessary. Petitioner argues that “because health insurance deductibles
have more than doubled for the employees [under the new plan], both employees and their families
may be forced to delay or forgo medical treatments.” Mem. Supp. Pet. 53. This is exactly the type

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of speculative harm the Fifth Circuit rejected in Creative Vision. 783 F.3d at 299 (critiquing the
Ninth Circuit’s holding in Small v. Avanti Health Sys., LLC, 661 F.3d 1180 (9th Cir. 2011) for
relying substantially on “speculative and generalized harms” to support issuance of a § 10(j)
injunction). The speculative harm that an increase in deductibles may potentially require unit
employees or their families to delay or forgo medical treatment does not satisfy the requirement
under Creative Vision that the harm be identifiable and substantial. Id.
Petitioner provided little beyond this statement to show that the healthcare changes resulted
in any harm to employees or to the Union. Similarly, DISH technicians provided little to no
testimony regarding any harm arising from the healthcare changes. Therefore, Petitioner’s request
to restore all unit employees to pre-implementation healthcare is denied.
3.

Reinstating All Constructively Discharged Employees

Petitioner also seeks reinstatement of those employees who resigned as a result the wage
change. “Ordinarily, courts properly leave the decision whether to reinstate [employees] to the
Board.” Overstreet, 625 F.3d at 856 (citing Pilot Freight Carriers, 515 F.2d at 1192). However,
courts may order reinstatement in “exceptional cases,” “so as to prevent the destruction of
employee interest in collective bargaining, irreparable injury to the union’s bargaining power, and
the undermining of the effectiveness of any resolution through the Board’s process.” Id. Petitioner
has failed to establish that this is such an exceptional case.
Nearly nine months have passed since DISH implemented the wage change, decreasing the
equitable necessity of reinstatement. Pilot Freight Carriers, 515 F.2d at 1193 (finding that the
Board waiting three months before petitioning for an injunction was “some evidence that the
detrimental effects of the discharges have already taken their toll”). Further, while Petitioner
showed that, despite the passage of time, many of the former employees are willing to return if

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QPC is restored, Petitioner failed to show that the anti-union sentiment arose out of the alleged
constructive discharge of these employees, or that reinstatement is necessary to restore the strength
of the Union. By contrast, in Overstreet v. El Paso Disposal, LP, the rare case in which the Fifth
Circuit found reinstatement appropriate under § 10(j), the ALJ and the district court had both found
that “discharge of [] strikers and failure to reinstate them was a direct cause of the anti-Union
sentiment among the workers that led to several petitions to decertify the Union . . . .” 625 F.3d
at 856. The record supports no such finding here.
Additionally, there is no need to reinstate former unit technicians to preserve the Board’s
remedial powers. Nearly all technicians who testified via affidavit that they would return if QPC
were restored noted that they are making less, or “significantly less,” at their new employment
than they made under QPC. Pet.’s Trial Ex. 4. If that is the case, these former employees would
be just as likely to return after a final order from the Board, as they are now.
Therefore, the Court finds that reinstatement of allegedly constructively discharged
employees is not equitably necessary and Petitioner’s request is denied.
4.

Bargain in Good Faith

Lastly, Petitioner requests an order requiring DISH to bargain in good faith, but Petitioner
has not alleged any refusal to bargain on the part of DISH nor shown any other continuing unfair
labor practices requiring such relief. There is no evidence that DISH has refused to bargain with
the Union after declaring impasse and imposing the new wage reduction. In fact, Ramos conceded
at the hearing that outside of settlement discussions, the Union has not requested to bargain with
DISH at all.
The only unfair labor practices actually alleged by Petitioner, beyond DISH’s
implementation of the changes, are the text message from Hans Obere and the comment by

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Waeland Thomas. Assuming these events were the violations Petitioner alleges, they do not
amount to more than one time violations. See Creative Vision, 783 F.3d at 299 (“[I]njunctive relief
should issue when harms are ongoing, yet incomplete and likely further to harm the union or its
supporters in the workforce.”).
Nine months out from the Obere text message, both the Farmers Branch and North
Richland Hills facilities are still open and both offices continue to engage in hiring. Resp.’s Br.
Opp. 36. There is no evidence that anyone has been encouraged to transfer out of those offices.
Id. DISH’s regional director testified that there are no plans to close either facility. Id. And there
is no evidence that similar statements have been made since. Therefore, the Court finds there is
no ongoing harm resulting from the Obere text message.
There is also no evidence that Mr. Thomas’s comment was part of a concerted, ongoing
effort to discourage Union participation or discussion, nor is there enough evidence to suggest that
the comment did in fact discourage Union participation or support. The record suggests that Mr.
Thomas’s comments—whatever their actual content—and their subsequent interpretation were a
result of misunderstanding, not mal-intent. Further, there is no evidence that anyone has been
disciplined for discussing the Union during work hours or after work hours, as the alleged comment
suggested.
As there is no evidence of any other ongoing unfair labor practices that threaten to weaken
the Union or harm unit employees, there is no need for injunctive relief to preserve the Board’s
remedial power. Any harm resulting from the text message or Thomas’s comment has occurred
and Petitioner’s allegations arising from those events are currently before the Board in the
administrative proceeding. The Board is in the best position to determine the proper remedy, if
any, for such harm. Therefore, Petitioner’s request for an order requiring DISH to bargain in good

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faith is denied.
IV.

CONCLUSION
Based on the foregoing, Petitioner’s request for injunctive relief (ECF No. 1) is

GRANTED in part and DENIED in part.
The Court hereby ORDERS Respondent DISH Network Company to (1) on a prospective
basis, immediately restore to all unit employees the pre-implementation wages they enjoyed prior
to the DISH Network Company’s alteration of their terms and conditions of employment on April
23, 2016; (2) post a copy of this Order in all locations where notices to employees are generally
posted at the Farmers Branch and North Richland Hills facilities; and (3) provide a hard copy of
this Order to all unit employees.
All further requested injunctive relief is hereby DENIED.
SO ORDERED this 14th day of January, 2017.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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