Dish Network, LLC v. Nat'l Labor Relations Bd.
| Decision Date | 07 March 2018 |
| Docket Number | No. 16-9514,No. 16-9526,16-9514,16-9526 |
| Parties | DISH NETWORK, LLC, Petitioner - Cross/Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent - Cross/Petitioner. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(Petition for Review)
ORDER AND JUDGMENT*Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
David Rabb worked as an inside sales associate ("ISA") at a Dish Network, LLC ("Dish") call center in Littleton, Colorado. Mr. Rabb took incoming calls from potential customers and tried to sell them Dish's services. Dish in turn incentivized sales by offering commissions. Dish, however, also discouraged undesired conduct by docking commissions. These reductions in pay upset Mr.Rabb. He complained about these practices to management and coworkers. He eventually complained to the State of Colorado, filing a complaint with the Colorado Department of Labor ("CDOL").
The CDOL, however, had no statutory authority on which to act. Mr. Rabb subsequently retained an attorney regarding the matter. In early 2014, Mr. Rabb began soliciting coworkers at Dish to join a potential lawsuit against Dish. Then, in mid-February 2014, Dish disciplined Mr. Rabb, allegedly for this solicitation activity. The call center manager, Emily Evans, twice sought to have Mr. Rabb fired for it. She was unsuccessful. But less than a month later, he was fired for using silent hold (putting a customer on hold without music being played) to go to the bathroom. Mr. Rabb then complained to the National Labor Relations Board (the "Board" or "NLRB").
Before an administrative law judge ("ALJ"), Mr. Rabb testified that he had long used silent hold to go to the bathroom, that his supervisors knew of the practice, and that the practice was not uncommon among ISAs. The ALJ credited Mr. Rabb's testimony, and found incredible the testimony of both the call center manager, Ms. Evans, and David Gass, an inside sales manager. More specifically, the ALJ found that—motivated by Mr. Rabb's solicitation of coworkers for his lawsuit—Ms. Evans and Mr. Gass had put Mr. Rabb under scrutiny with the intention of finding a reason for which to fire him and, consequently, identified as termination grounds Mr. Rabb's long-standing practice of using silent hold to goto the bathroom. Consequently, the ALJ found that Dish had violated the National Labor Relations Act ("Act" or "NLRA"), see 29 U.S.C. §§ 157, 158(a)(1), by firing Mr. Rabb while motivated in part by animus towards Mr. Rabb's solicitation of coworkers to join a lawsuit over Dish's pay practices. Additionally, the ALJ found that Dish had an unlawfully overbroad nonsolicitation policy and had violated the NLRA by disciplining Mr. Rabb under that policy. Dish appealed to the full Board. The Board affirmed. Dish now petitions this court for review. The Board cross-petitions for enforcement.
Exercising jurisdiction pursuant to 29 U.S.C. § 160(e)-(f), we deny Dish's petition for review and enforce the Board's order against Dish.
Dish maintains a call center in Littleton, Colorado, where ISAs take incoming phone calls from potential customers and attempt to sell them Dish's various offerings. ISAs earn a base salary and commissions. The call center has a manager, Ms. Evans, and two inside sales managers, of whom only one, Mr. Gass, is involved in this case. Below the sales managers are "coaches" who supervise fifteen-member teams of ISAs. Mr. Rabb's coach at the time of his firing was Barry Appelhans.
When ISAs begin their shifts, they log into their computers and then transfer into "READY AUX," which permits calls to be directed to them. ISAs can forestall incoming calls while receiving supervision by using the"COACHING AUX" feature. While on calls, which usually last between fifteen and thirty minutes but may last up to ninety minutes, ISAs are able to put customers on one of two forms of hold: "HOLD AUX," which plays music for the customer, or "silent hold" (i.e., mute), where a customer hears nothing. Use of a silent hold causes a red light to go on at an ISA's workstation. For unpaid lunch breaks, ISAs log out; paid breaks require use of "BREAK AUX." Dish authorizes ISAs working eight-hour shifts to take thirty minutes of paid break time and those working ten-hour shifts are authorized to take thirty-five minutes.
Dish disciplines its ISAs for various offenses, called "Tier violations." These offenses range from failing to up-sell, to authorizing payment without a customer's consent, to using profanity on a call. Tier violations are punished by docking ISAs' commissions. Dish typically uncovers such violations by one of three means: (1) coaches occasionally monitor calls by listening in via headset; (2) the Quality Assurance unit reviews the recordings of two calls per week for each ISA; and (3) the Sales Integrity Team investigates ISAs with high cancellation rates. ISAs lose commissions because of Tier violations.
Mr. Rabb complained about this policy to both his colleagues and supervisors, including a senior vice president to whom Ms. Evans transmitted a letter on Mr. Rabb's behalf in August of 2013. At one point, Mr. Rabb even characterized Dish's commission-docking practice to Ms. Evans as "stealing." R. at 59, 159-60 (); R. at 336 ().
Mr. Rabb's discontent led him to file a complaint with the CDOL, which responded by informing Mr. Rabb that it was without statutory jurisdiction to regulate compensation structures. Mr. Rabb discussed the CDOL complaint with his coach, Mr. Appelhans. On January 30, 2014, Mr. Rabb first met with a lawyer regarding the potential suit and was accompanied by a coworker. After that, he solicited as many as fifteen of his coworkers to join him as plaintiffs.
On February 18, Mr. Rabb received a "final warning" for allegedly violating the solicitation policy after two of his coworkers complained to management. The same day that Mr. Rabb received the final warning, he also asked for a former employee's phone number for the purpose of soliciting participation in the lawsuit. Ms. Evans twice sought to fire Mr. Rabb for these actions, though she was unsuccessful. But within three weeks, Mr. Rabb was fired.
On March 4, Mr. Rabb used silent hold at the end of a call to use the bathroom. Ms. Evans, Mr. Gass, and Mr. Appelhans were in a meeting in a glass-walled conference room a short distance away. Apparently, Mr. Appelhans first observed the illuminated red light at Mr. Rabb's workstation, evincing his use of silent hold. Upon Mr. Rabb's return, Mr. Gass was waiting for him at his desk. This surprised Mr. Rabb: Mr. Gass appeared upset over something. In Mr. Rabb's view, Mr. Gass was upset over a practice Mr. Rabb had repeatedly followed forthe two years of his employment at Dish—that is, placing callers on silent hold while going on brief restroom breaks—with the knowledge and tacit consent of his coaches. Mr. Rabb was terminated on March 7 via a notice that cited the March 4 incident and an incident that had occurred on February 28, where Mr. Rabb placed his system in COACHING AUX for a few minutes while he went to the restroom and Mr. Appelhans counseled him not to do that. Mr. Rabb contended in signing his termination notification that his behavior—going to the restroom during calls—had been ongoing and was known to his coaches; yet, he had never received any oral warnings about the practice.
On June 18, 2014, Mr. Rabb filed a charge against Dish with the Board. The Board's General Counsel filed its complaint against Dish on August 27. An ALJ conducted a hearing regarding the matter on January 6 and 7, 2015. At the hearing, Dish presented testimony from Ms. Evans and Mr. Gass, as well as a few ISAs, and presented evidence of other terminations based on conduct it considered analogous to Mr. Rabb's, which it characterized as "call avoidance." Id. at 840 (Decision, dated Mar. 26, 2015). Dish offered evidence that silent holds "should be limited to short questions for Coaches, sneezes or coughs, or for quick account reviews" and that "silent hold usage is subject to abuse" and is "a way to avoid calls." Id. at 840 n.18. The ALJ ruled against Dish on all issues on March 26, 2015. Dish appealed, and the Board issued its final decision on March 3, 2016.
The Board substantially adopted the ALJ's decision, only modifying its remedial order in minor respects. The Board concluded that (1) Dish had maintained an unlawful nonsolicitation policy in violation of § 8(a)(1) of the NLRA (i.e., 29 U.S.C. § 158(a)(1)) because it barred solicitation in work areas during nonwork time and required employees to obtain management approval before soliciting; (2) Dish had violated § 8(a)(1) of the NLRA by disciplining Mr. Rabb pursuant to that unlawful policy; and (3) Dish violated § 8(a)(1) of the NLRA by terminating Mr. Rabb for his protected concerted activities.
The NLRA requires that, on judicial review, "findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 29 U.S.C. § 160(e). "We will grant enforcement of an NLRB order when the agency has correctly applied the law and its findings are supported by substantial evidence in the record as a whole." NLRB v. Interstate Builders, Inc., 351 F.3d 1020, 1027 (10th Cir. 2003) (quoting Miera v. NLRB, 982 F.2d 441, 444 (10th Cir. 1992), aff'd, 510 U.S. 317 (1994)). "Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." NLRB v. U.S. Postal Serv., 486 F.3d 683, 687 (10th Cir. 2007) (quoting NLRB v. Velocity Express, Inc., 434 F.3d 1198, 1201 (10th Cir. 2006)).
Review under the substantial evidence standard is narrow and deferential. "Our job isn't to make the call ourselves, but only to ask whether a reasonable mind could have made...
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