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Kinard v. Dish Network Corp.

United States Court of Appeals, Fifth Circuit

May 18, 2018

MARTHA KINARD, Regional Director of the Sixteenth Region of the National Labor Relations Board on behalf of National Labor Relations Board, Plaintiff - Appellee Cross-Appellant
v.
DISH NETWORK CORPORATION, Defendant-Appellant Cross-Appellee

          Appeals from the United States District Court for the Northern District of Texas

          Before HIGGINBOTHAM, SOUTHWICK, and COSTA, Circuit Judges.

          LESLIE H. SOUTHWICK, Circuit Judge:

         The Regional Director of the National Labor Relations Board sued DISH Network Corp., seeking an injunction against unilateral changes to employee wages during collective bargaining. The district court granted the injunction in part. Both DISH and the Board appealed. We AFFIRM.

         FACTUAL AND PROCEDURAL BACKGROUND

         DISH Network Corp. is a satellite television provider with production facilities in Farmers Branch and North Richland Hills, both being in the Dallas-Fort Worth area. In 2009, DISH selected those jobsites to serve as pilots for a new compensation program known as Quality Performance Compensation ("QPC"). Replacing the previous hourly wage compensation scheme, QPC provided a lower hourly rate supplemented by incentive pay based on certain performance metrics. As of 2009 when QPC was implemented at Farmers Branch and North Richland Hills, no DISH employees working as technicians or warehouse workers were represented by a union. Following the introduction of QPC, however, the employees at Farmers Branch and North Richland Hills certified representation by the Communication Workers of America union in 2010 and 2011, respectively. The employees allegedly certified union representation based on their dissatisfaction with QPC. At the time of union certification, QPC remained the status quo form of compensation at the two facilities.

         In July 2010, the parties began collective bargaining to establish an initial contract. Bargaining continued from July 2010 to November 2014. During this time, DISH altered and introduced alternative methods of compensation at other facilities but left QPC in place at the unionized Farmers Branch and North Richland Hills sites, likely because unilateral changes to compensation in the course of collective bargaining is generally prohibited. NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir. 1970). Following certification of the union and the initiation of collective bargaining, however, improvements to equipment and procedures at DISH facilitated better employee performance under QPC incentive criteria. Wages increased substantially. Accordingly, the union and DISH reversed their respective bargaining positions. The union now desired to keep QPC, and DISH sought to eliminate it. According to DISH, by 2015, union technicians at Farmers Branch and North Richland Hills were making approximately $19, 000 more annually than non-union technicians at other branches.

         By March 2013, the parties reached oral agreement on numerous issues including benefits and union recognition, leaving wages and a few other issues for continued negotiation. The plaintiffs allege that in the following months, DISH repeatedly attempted to assert that negotiations had reached an impasse, ultimately calling for a pause in November 2013 to await the outcome of a union-decertification vote. The employees decided against decertification and bargaining resumed in July 2014.

         On November 18 and 19, 2014, DISH rejected a union proposal to keep QPC; it countered with a "final offer" that eliminated QPC and established lower hourly wage scales. Between November 2014 and April 2016, the parties continued to clash over the final offer. DISH maintained that bargaining had reached an impasse while the union maintained that they had not reached an impasse and that further bargaining was required under the National Labor Relations Act ("NLRA").

         In January 2016, DISH communicated that it would proceed with implementing the final offer unless the union provided evidence that bargaining was not at an impasse. The union quickly replied, arguing it was entitled under the NLRA to bargain with DISH face-to-face and requesting possible dates for negotiation. The parties continued to communicate these positions to one another until April 23, when DISH implemented the wage changes associated with the final offer.

         Under the terms of the final offer, union technicians at both facilities witnessed a nearly 50% reduction in wages. According to the union, 17 technicians from both facilities, including the union leader from North Richland Hills, quit in response to the wage reduction. Warehouse employees saw no change to their wages. The final offer also implemented a new healthcare policy that took effect in July 2016.

         The union filed an unfair labor practice charge before the National Labor Relations Board ("NLRB" or "the Board") on April 7, 2016, two days after DISH announced that it would implement the final offer terms. On June 23, Martha Kinard, the NLRB Regional Director, issued a Notice of Hearing for the charge. The hearing took place before an administrative law judge ("ALJ") over seven days in August and September of 2016.

         While the NLRB continues to adjudicate the unfair labor practices claim, Martha Kinard, on behalf of the NLRB as petitioner, filed for injunctive relief against DISH's implementation of the final offer in the United States District Court for the Northern District of Texas under Section 10(j) of the NLRA. The NLRB sought an injunction requiring DISH to (1) restore all union employees to their pre-2016 wages and healthcare benefits, (2) offer interim reinstatement with prior wages and benefits to the employees constructively discharged by the implementation of the final offer, and (3) reinitiate good faith bargaining. The district court ...


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