Federal judge's injunction gives NLRB time to decide Dish Network case

By Karen Kidd | Jan 25, 2017

FORT WORTH – An injunction by a federal judge in Texas has given the National Labor Relations Board time to decide whether Dish Network Co. legally cut the wages of union employees by about half.

Restoring that pay cut is necessary to keep the status quo in place in the dispute between Dish Network and the union that represents employees at two of the company's Texas locations, U.S. District Judge Reed O’Connor said in his injunction handed down Saturday, Jan. 14.

"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," O'Connor wrote in the injunction.

The case is one of at least seven that the NLRB is actively pursuing against Dish Network.

O'Connor denied all further requested injunctive relief.

The case concerns a compensation program known as Quality Performance Compensation, which Dish Network introduced in 2009 for some of its technicians in some company facilities, including Farmers Branch and North Richland Hills, according to court documents. The QPC program provided a low-base wage with large incentives.

Technicians' dislike of the QPC program was the trigger that led to membership certification with the union Communication Workers of America at Farmers Branch and North Richland Hills.

During lengthy contract negotiations with the union, Dish Network instituted a new pay plan, Performance Incentive, or PI, with a higher-base wage and fewer incentives at all facilities except the two where technicians enjoy union representation. The union-represented branches were legally required to remain under QPC to maintain the status quo during contract negotiations.

Negotiations dragged on from July 2010 to November 2014. During that time, the earnings at Farmers Branch and North Richland Hills, under QPC, ballooned. Wages of technicians in those branches increased by about $17,000 between 2013 and 2015 and Dish Network union members soon were making about $19,000 more than their nonunion co-workers in other branches, the injunction states.

"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," O'Connor's injunction said.

By December 2014, Dish Network considered bargaining with the union to be at an impasse. Negotiators on both sides did not contact each other in all in 2015 and contacts in early 2016 got nowhere. On April 5 and 6, Dish Network conducted meetings in which the implementation of the company’s last, best and final offer, which included an effective wage cut of about 50 percent and an hourly rate lower than at other facilities in the region, was announced.

One employee at the North Richland branch quit that same day. Seventeen additional employees from North Richland and Farmers branches quit later in the month.

"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," O'Connor's injunction said. "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."

Obere's text message, which also said, "They would rather have the techs quit en mass [sic]”, subsequently was shared with other North Richland Hills employees.

The union filed its initial complaint the following day, claiming Dish Network violated the National Labor Relations Act when it coerced and threatened its employees, in addition to establishing retaliatory and discriminatory wage schemes. It was those new wage schemes, cutting their pay in half, that lead employees to quit, the union claimed in its complaint.

The following summer, the case was consolidated with other complaints against Dish Network over alleged violations of the NLRA.

O'Connor, in his injunction handed down this month, took a dim view of Dish Network's efforts to continue implementing the wage cut after the union filed its initial complaint.

"If petitioner’s 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," O’Connor wrote in the injunction. “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.”

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National Labor Relations Board U.S. District Court for the Northern District of Texas Fort Worth Division

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