Dish Network, LLC and Brett Denney, 27-CA-158916

• Decision Date: 18 March 2021
• Docket Number: 27-CA-158916
• Parties: Dish Network, LLC v. Brett Denney.
• Court: National Labor Relations Board

Dish Network, LLC and Brett Denney.

No. 27-CA-158916

United States of America, National Labor Relations Board

March 18, 2021

Chairman McFerran and Members Kaplan and Ring

SUPPLEMENTAL DECISION, ORDER, AND NOTICE TO SHOW CAUSE

On April 13, 2017, the National Labor Relations Board issued a Decision and Order finding that the Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act) by maintaining a mandatory arbitration agreement (Agreement) that employees reasonably would believe bars or restricts them from accessing the Board and its processes and by requiring employees to maintain the confidentiality of all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards. Dish Network, LLC, 365 NLRB No. 47 (2017). Additionally, the Board found the Respondent violated Section 8(a)(1) of the Act by prohibiting an employee from discussing his discipline with other employees. Id.

The Respondent filed a petition for review with the United States Court of Appeals for the Fifth Circuit, and the Board filed a cross-application for enforcement. On July 9, 2018, the Respondent and the General Counsel filed a joint motion asking the court to sever and remand the Board access and confidentiality allegations in light of Boeing Co., 365 NLRB No. 154 (2017). The parties also informed the court that they had reached a "resolution of the Board's finding that DISH unlawfully told an employee not to discuss discipline with others," and they requested withdrawal of the petition for review and cross-application for enforcement of the relevant part of the Board's order. On July 18, 2018, the court remanded the case to the Board in its entirety.^[1]

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

Having considered the Board's previous decision and the record, we find, as discussed below, that the Agreement unlawfully restricts access to the Board. We further find that the Agreement's confidentiality requirement is unlawful in one respect. As explained below, and contrary to our dissenting colleague's contention, that requirement is lawful to the extent it mandates that arbitration proceedings, including hearings, discovery, and awards, be kept confidential. However, we reach the opposite conclusion regarding the requirement that settlements remain confidential. Additionally, we shall issue a Notice to Show Cause why the allegation concerning prohibiting an employee from discussing his discipline should not be remanded to the Regional Director for further appropriate action.

I. FACTS

The Respondent, a Colorado corporation with its headquarters in Englewood, Colorado, provides satellite television and other media services.

Since October 24, 2013, the Respondent has required all applicants for employment to sign the Agreement. The Agreement provides, in relevant part, as follows:

This Mandatory Arbitration of Disputes-Waiver of Rights Agreement ("Agreement") acknowledged today between DISH Network L.L.C. and all of its affiliates (the term "affiliates" means companies controlling controlled by or under common control with, DISH Network L.L.C.) (DISH Network L.L.C. and its affiliates are individually and collectively referred to herein as "DISH") and me ("Employee"). In consideration of the Employee's employment by DISH (and/or any of its affiliates) as good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Employee and DISH agree that any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee's application for employment, employment and/or termination of employment whenever and wherever brought, shall be resolved by arbitration. The Employee agrees that this Agreement is governed by the Federal Arbitration Act, 9 U.S.C §§ 1 et seq., and is fully enforceable

.... Regardless of what the above-mentioned Rules state, all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards shall be confidential and shall be held in the city in which the Employee performs services for DISH as of the date of the demand for arbitration, or in the event the Employee is no longer employed by DISH, in the city in which the Employee last performed services for DISH. The arbitrator's decision shall be final and binding, and judgment upon the arbitrator's decision and/or award may be entered in any court of competent jurisdiction.

Since at least March 1, 2015, the Respondent has maintained the Agreement (or a similar version of the Agreement) at all its locations nationwide.

Charging Party Brett Denney was employed by the Respondent at its Littleton, Colorado Call Center from about November 1, 2013, through March 11, 2015. On about March 3, 2015, the Respondent, by General Manager Emily Evans, suspended Denney and told him not to discuss his suspension with his coworkers.

II. DISCUSSION

The court has remanded three issues: (i) whether the Agreement unlawfully restricts access to the Board and its processes, (ii) whether the Agreement unlawfully requires confidentiality, and (iii) whether the Respondent unlawfully instructed an employee to not discuss his suspension. Below, we consider the first two issues on the merits and explain that the third issue warrants the issuance of a Notice to Show Cause.

A. Restricting Access to the Board

In Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S.Ct. 1612 (2018), the Supreme Court emphasized that arbitration agreements are to be enforced as written pursuant to the Federal Arbitration Act (FAA). However, the Court has also held that this mandate "may be 'overridden by a contrary congressional command.'" Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10, slip op. at 5 (2019) (quoting Shearson/American Express, Lnc. v. McMahon, 482 U.S. 220, 226 (1987)). In Prime Healthcare, the Board explained that Section 10 of the Act establishes just such a contrary congressional command with respect to arbitration agreements that interfere with the right of employees to file charges with the Board. Specifically, we explained that under Section 10(b) of the Act, the Board has no power to issue complaint unless an unfair labor practice charge is filed, and Section 10(a) of the Act relevantly provides that the Board's power to prevent unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise." Thus, notwithstanding the Supreme Court's decision in Epic Systems, the FAA does not authorize the maintenance or enforcement of agreements that interfere with the right to file charges with the Board. Id.

An arbitration agreement that "explicitly prohibits the filing of claims with the Board or, more generally, with administrative agencies must be found unlawful." Id. Where an arbitration agreement does not contain such an express prohibition-i.e., where the arbitration agreement in question is facially neutral-the Board applies the standard set forth in Boeing and determines "whether that agreement, 'when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, '" such as the right to file charges with the Board. Id. (quoting Boeing, 365 NLRB No. 154, slip op. at 3).^[2] Such interference exists when an arbitration agreement, "taken as a whole, make[s] arbitration the exclusive forum for the resolution of all claims, including federal statutory claims under the National Labor Relations Act." Id., slip op. at 6 (emphasis in original). Further, "as a matter of law, there is not and cannot be any legitimate justification for provisions, in an arbitration agreement or otherwise, that restrict employees' access to the Board or its processes." Id.

Here, the Agreement requires that employees arbitrate "any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee's application for employment, employment and/or termination of employment, whenever and wherever brought." Such language makes arbitration the exclusive forum for resolving all employment-related disputes between the Respondent and any of its employees, including claims arising under the Act, thus restricting employees' access to the Board and rendering the Agreement unlawful. See, e.g., id.; Century Fast Foods, Inc, 370 NLRB No. 4, slip op. at 3-4 (2020) (finding unlawful an agreement requiring "any claims" to be resolved by arbitration); IIG Wireless, Inc. f/k/a Unlimited PCS, Inc.; & UPCS CA Resources, Inc., 369 NLRB No. 66, slip op. at 2 (2020) (finding unlawful an agreement requiring that "any dispute or controversy . . . arising from or in any way related to my employment with the Company, shall be submitted to and determined by binding arbitration"); Beena Beauty Holding, Inc. d/b/a Planet Beauty, 368 NLRB No. 91, slip op. at 2-3 (2019) (finding unlawful an agreement requiring employer and employees "to submit any claims that either has against the other to final and binding arbitration").

Accordingly, we find the Respondent violated Section 8(a)(1) by maintaining the Agreement on the basis that the Agreement restricts employees' right to file charges with the Board, and we place the language restricting the exercise of that right in Boeing Category 3.

B. Confidentiality Provision

The General Counsel alleges that the Agreement unlawfully prohibits employees from discussing their terms and conditions of employment by requiring that "all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards shall be confidential." In California Commerce Club, Inc., 369 NLRB No. 106, slip op. at 6 (2020), we held that "provisions in an arbitration agreement requiring that arbitration be conducted on a confidential basis, including provisions...