Nat'l Labor Relations Bd. v. Alt. Entm't, Inc.

• Citation: 858 F.3d 393
• Decision Date: 26 May 2017
• Docket Number: No. 16-1385,16-1385
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALTERNATIVE ENTERTAINMENT, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

858 F.3d 393

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.ALTERNATIVE ENTERTAINMENT, INC., Respondent.

No. 16-1385

United States Court of Appeals, Sixth Circuit.

Argued: November 30, 2016

Decided and Filed: May 26, 2017

ARGUED: Joel Heller, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. Timothy J. Ryan, JACKSON LEWIS P.C., Grand Rapids, Michigan, for Respondent. Harold Craig Becker, AFL-CIO, Washington, D.C., Evan M. Tager, MAYER BROWN LLP, Washington, D.C., for Amici Curiae. ON BRIEF: Linda Dreeben, Kira Dellinger Vol, Gregoire Sauter, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. Timothy J. Ryan, JACKSON LEWIS P.C., Grand Rapids, Michigan, for Respondent. Harold Craig Becker, AFL-CIO, Washington, D.C., Evan M. Tager, MAYER BROWN LLP, Washington, D.C., Michael Rubin, ALTSHULER BERZON LLP, San Francisco, California, for Amici Curiae.

Before: MOORE, SUTTON, and WHITE, Circuit Judges.

MOORE, J., delivered the opinion of the court in which WHITE, J., joined, and SUTTON, J., joined in part. SUTTON, J. (pp. 411–19), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Petitioner National Labor Relations Board (NLRB) seeks enforcement of a Decision and Order of the NLRB finding that Respondent Alternative Entertainment, Inc. (AEI) violated the National Labor Relations Act (NLRA). AEI seeks relief from the order. The NLRB argues that AEI violated the NLRA by barring employees from pursuing class-action litigation or collective arbitration of work-related claims. The NLRB also contends that AEI violated the NLRA by forbidding James DeCommer, an AEI technician, from discussing a proposed compensation change with his coworkers and by firing DeCommer for discussing the proposed change and complaining to management about it. For the reasons discussed below, we ENFORCE the NLRB's Decision and Order.

I. BACKGROUND

DeCommer worked as a field technician for AEI from August 2006 until he was fired on December 18, 2014. Administrative Record ("A.R.") (Hr'g Tr. at 13) (Page ID #19). AEI provides Dish Network installation and services. Id. at 87 (Page ID #93).

Two AEI employment documents are at issue in this case. First, AEI requires its employees to sign an agreement entitled "AEI ALTERNATIVE ENTERTAINMENT, INC. OPEN DOOR POLICY AND ARBITRATION PROGRAM," which states that "Disputes between you and AEI (or any of its affiliates, officers, directors, managers or employees) relating to your employment with the Company" must, at the election of the employee or the company, be resolved "exclusively through binding arbitration." A.R. ("Open Door Policy and Arbitration Program" at 1) (Page ID # 209). The agreement also states that "By signing this policy, you and AEI also agree that a claim may not be arbitrated as a class action, also called ‘representative’ or ‘collective’ actions, and that a claim may not otherwise be consolidated or joined with the claims of others." Id. Second, AEI maintains an employee handbook, which lists "examples ... intended to demonstrate the types of behaviors prohibited by the company." A.R. (Employee Handbook at 27) (Page ID #196). Examples include "[u]nauthorized disclosure of business secrets or confidential business or customer information, including any compensation or employee salary information." Id. at 28 (Page ID #197).

The central dispute in this case stems from changes in field technicians' compensation. AEI compensates technicians using a "unit-based compensation system." A.R. (Hr'g Tr. at 17) (Page ID #23). AEI assigns each type of job a certain number of units. For example, "a trouble call or a service call ... would be considered 12 units," and technicians receive compensation for each unit of work they perform. Id . Different technicians receive different per-unit compensation rates, ranging from approximately $1.90 per unit to approximately $4.00 per unit. Id. at 18 (Page ID #24). AEI determines each technician's per-unit compensation rate based on the technician's metrics, including factors like the number of jobs a technician completed, how frequently customers reported problems after a technician performed installations, and the technician's customer satisfaction ratings. Id.

While DeCommer was employed at AEI, the company made two changes to the compensation structure. First, AEI added smart home service sales¹ as a metric for all technicians. Id. Smart home sales were additional services, such as mounting a customer's television on the wall or selling accessories to complement a customer's home entertainment system, that technicians sold during service calls. Id. at 20 (Page ID #26). AEI began requiring technicians to meet a minimum dollar amount of smart home service sales in order to increase their pay per unit (initially the threshold was $6.00 per call and it later increased to $10.00 per call). Id.

At first, DeCommer excelled at smart home sales and in 2013 and 2014 he broke company records. Id. at 39, 48 (Page ID #45, 54). Later, he determined that he was losing money by spending time on smart home sales instead of going on more service calls, so his smart home sales numbers dropped off significantly. Id. at 40–41 (Page ID #46–47). There is some dispute about how DeCommer handled smart home sales after he stopped trying to break company records. DeCommer testified that he told his supervisor that he would continue to meet the minimum dollar amount in smart home sales but that he was no longer motivated to break records. Id. at 40–41 (Page ID #46–47). Specifically, he testified that he said, "I'll make sure I hit my goal. I'm not going to miss that, but I'm not going to be pushed to be number one every month. ... I actually lost money by doing that." Id. at 40 (Page ID #46). DeCommer's supervisor, Victor Humphrey, testified that on or around December 17, 2014 DeCommer told him he would not do smart home sales and that "he made the comment ... that he talks his customers out of services." Id. at 95–96 (Page ID #101–02). Humphrey testified that after hearing this comment he was "in shock ... [b]ecause I had an employee that just refused to do his job to his boss." Id. at 96–97 (Page ID #102–03). DeCommer, however, denied that he had a conversation with Humphrey on December 17, and also denied ever refusing to do Smart Home Sales. Id. at 130 (Page ID #136).

The second change affected compensation only for technicians who, like DeCommer, drove their own vehicles. A.R. (Hr'g Tr. at 14) (Page ID #20). AEI employs field technicians who drive personally owned vehicles (POV technicians or POVs) and field technicians who drive company owned vehicles (COV technicians or COVs). In November or December 2014, AEI announced it would begin compensating POVs for using their own vehicles based on mileage, not based on units. A.R. (12/15/2014 Email from Neal Maccoux) (Page ID #306); A.R. (Hr'g Tr. at 43) (Page ID #49). Under the old system, POVs received a supplement of $0.82 per unit to compensate them for the cost of driving their own vehicles. A.R. (Hr'g Tr. at 26) (Page ID #32). Under the new system,² POVs would be compensated $0.575 per mile³ based on the miles driven from their first to their last job. A.R. (12/15/2014 Email from Neal Maccoux) (Page ID #306); A.R. (Hr'g Tr. at 43) (Page ID #49). DeCommer determined that he would "lose a lot of money" under this new system, estimating the change would cost him seven to ten thousand dollars per year, or about twenty percent of his total compensation. A.R. (Hr'g Tr. at 25, 26, 31) (Page ID #31, 32, 37).

DeCommer repeatedly voiced his concern about the proposed compensation change. DeCommer testified that he spoke with "probably 10 technicians or more" about the change and "[t]hey were concerned that they were going to lose money, that this pay was going to stop their proper compensation of driving their vehicle." Id . at 23 (Page ID #29). DeCommer testified that he had an in-person conversation about the proposed change with manager Rob Robinson. DeCommer testified that he "asked [Robinson] if he knew anything more about the pay change" to which "[Robinson] said, why don't we talk outside, because there were some other technicians in that general office area.... [I]t was at that point that Mr. Robinson told me that I don't want you talking to any of the other technicians about this; if you have any concerns or questions, I want you to direct them to myself or Mr. Humphrey." Id. at 28 (Page ID #34). DeCommer also testified that he discussed with other technicians the contents of the conversation with Robinson. Id. In addition, DeCommer sent a text message to Robinson and an email to the company president, Tom Burgess, criticizing the proposed change. A.R. (12/5/2014 Text Message) (Page ID #212); A.R. (12/16/2014 Email from James DeCommer) (Page ID #213). In the email to Burgess, DeCommer discussed the impact on his personal compensation and the compensation of other POVs. DeCommer repeatedly referred to the POVs collectively, saying that "[g]enerally speaking the povs are the highest p[er]formers and the most profitable of your tech force" and that the change would "unintentionally screw over almost [the] entire pov tech force." A.R. (12/16/2014 Email from James DeCommer) (Page ID #213). He says of the impact on POVs, "what you are asking myself and all the other povs to do is to accept a 20% pay cut." Id. (Page ID #214–15). DeCommer also included a discussion of the tax implications for POVs with different filing statuses. Id. (Page ID #214). Finally, Robinson set up a telephone conversation on or around December 16, 2014 between DeCommer and company CFO Neal Maccoux where DeCommer again expressed his concerns. A.R. (Hr'g Tr. at 30) (Page ID #36). In that conversation, DeCommer explained to Maccoux that he had "talked with other employees and that they had done their own figures and found that they would lose quite a bit of money as well if this change...